HPH2/Cohen Claim Form barclaycard 'debt'***Settled by Tomlin Order***

[martin2006]

SUPPLEMENTARY WITNESS STATEMENT:

 

IN THE County Court of x CLAIM NO: xxx

 

BETWEEN:

HOIST PORTFOLIO HOLDING 2 LTD Claimant

 

-and-

 

MR XXX Defendant

 

SUPPLEMENTARY WITNESS STATEMENT OF MR XXXX of ADDRESS.

 

I. Mr x the defendant in this claim make the following statement believing it to be true will state as follows:-

 

1. In relation to the claimant's paragraph 3.

- I have no recollection of entering into an agreement with Barclays in 2008,

indeed my recollection is that it was in 2006, and whilst I have no existing documents available to you support this, the Claimant is put to strict proof to evidence the commencement date by complying with the Court’s request for original agreement and documents.

 

 

2. I challenge the reconstituted agreement as it is clearly in breach of s.61 of the Consumer Credit Act 1974 thus - signing of the agreement, as it does not contain a signature for the debtor and creditor.

Therefore, it is improperly executed.

 

 

3. Section 65 of the Consumer Credit Act states that "An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only." but the Court's discretion to determine the enforceability of pre-April 2007 agreements is removed by virtue of s.127(3).

 

4. It is denied that a default notice pursuant to s87 and s88 of the Consumer Credit Act 1974 has been received and the claimant is again put to strict proof to produce a true copy of the original default as per the court's directions.

 

5. I challenge paragraph 4 of the claimant's submission

- i.e. that a reconstituted agreement is rendered enforceable as a consequence of Carey v HSBC: This case applies to how a creditor can satisfy their duty under the Consumer Credit Act 1978 following a s.78 request by the debtor, but in no way does it render a recon agreement 'enforceable'.

Waksman QC, in the aforementioned case, was quite clear that a reconstituted agreement (which is effectively an improperly executed agreement) could only be enforced at the discretion of the Court, but this discretion only exists for post-April 2007 agreements.

 

 

Until the claimant supports with evidence their claim that the agreement meets the criteria necessary for the Court to have discretion with respect to its enforceability, their assertion of compliance with s.78 being sufficient grounds for enforceability should be denied.

On the basis of the above I request that the Court rejects the claimant's claim.

6. As per CPR 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

7. On the alternative, as the Claimant alleges to be an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act.

 

8. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

I believe that the facts stated in this Witness Statement are true.

 

Signed

 

Dated on this day 4th October 2016

 

Just a typo isbo, 5. Its cca 1974 not 1978

[dx100uk]

And that, then, explains my puzzlement at the other missing pages. There were 11 sent dx.

 

I've been sending them off my phone, would that explain it?

 

All 11 were on 1 email dx.

 

your scans are 3Mb each [max email size is typically 15Mb] hence I only get 5 at one time

 

I would suggest you can reduce the resolution by at least 6 fold

don't need that higher resolution

are they photos taken with a phone I take it

so not able to shrink them.

 

 

dx

[Andyorch]

Supplemental looks fine...although I must confess I have not read the claimants Witness Statement but can imagine the contents as the usual ramblings of Carey etc etc.

 

Its vital that you get a cross the correct start date...the claimants claim relies totally on convincing the court its post 2007...hence the incorrect agreement date.

Oh and for the record there is no such thing as a reconstituted Default Notice (pre or post 2007)...most creditors did not retain hard copies only computer trail it had been served.

 

REgards

 

Andy

[shamrocker]

Isbo - at the end of point 4, consider adding - A valid Default Notice is a strict requirement before enforcement action can be taken following a breach of a regulated agreement. Whilst the Claimant states that one was issued, and has disclosed a "reconstituted" version from their system, they have not evidenced that one was actually issued following the alleged default and thus complied with the terms of the Consumer Credit Act 1978. The Claimant is prevented from taking enforcement action until a valid Default Notice has been issued.

 

They then need to provide a copy of their comms log, as Andy points out. I think the above could possibly come across as straw clutching, but feel it will strengthen your point about the DN. If you do end up in court and the judge seems to query why you are being a bit awkward on certain points, you can always say that you are only responding to the evidence put forward by the Claimant. I still think you should be looking to get an amicable settlement prior to court though.

[shamrocker]

You've been wonderful. As I sit here once again my chest is pounding with stress and worry. I hate these b@s****

 

Don't let it get to you. You're nearly there now. Get this WS sorted tomorrow and off to them, then you can come back here and consider your next steps. It's getting a bit close to the hearing now tbh, should have sorted this last week, but get it into them anyway and see what comes off it. You could also email it to the Claimant and attach a Without Prejudice settlement letter to it. The WS will give them something to think about, that's for sure. At least you'll have given it your best shot and won't look back with regrets, what ever the outcome.

[shamrocker]

...oh, and if they turn up with an original agreement, it's tantamount to an ambush, as they are trying to introduce something not disclosed earlier. It's not allowed and you should politely dig your heels in and say that it should be rejected and it should have been introduced at Disclosure stage. I doubt very much you'll be seeing an original though.

[mercyblue]

Sorry to be a killjoy but here's an alternative view..

 

It seems to me that you are trying to argue there was an improperly executed agreement prior to april 2007?

 

First off a reconstituted agreement is NOT effectively an improperly executed agreement that assertion is frankly absurd.

 

What is a S78 request? This was examined at some length in Carey (seen as everyone is using it) at issue 1.

 

46 "It is common ground that the s78 copy need not be a photocopy or other form of literal copy of the executed agreement."

 

It then examines the situation further at 53 it was contended that the creditor must prove execution of the agreement by reference to the original document itself - this was rejected and lists the 14 reasons for that following and concluding at 54

 

"Accordingly, the copy need not be as contended for by Mr Uff and Mrs Thompson and instead, a creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself."

 

Note the use of the phrase reconstituted version of executed agreement. In view of that I fail to see how anyone could come to the conclusion you asset that

 

"Waksman QC, in the aforementioned case, was quite clear that a reconstituted agreement (which is effectively an improperly executed agreement) could only be enforced at the discretion of the Court, but this discretion only exists for post-April 2007 agreements."

 

No he doesn't at all. He asserts that the recon must be honest and acurate.

 

In reality when you get into court there is no question of there been an agreement both sides accept that, the fact that you were paying a dca would indicate the was terminated correctly. Then you're likely to get asked if you signed an agreement, using your para 2 are you suggesting that at the original time of creation (of the agreement) that there was no box to sign - good luck with trying to convince the court of that - which would certainly render the agreement bad because there would in fact be no agreement!

 

The point about an agreement is it's either properly or improperly executed at the time of creation it doesn't suddenly turn improper. That may be an obvious statement to make but any decent claimant will (try to) switch the onus onto you as to why the agreement was improper at the time of its inception.

 

As for s127(3) that actually relates to enforceability with regards to prescribed terms (which do form part of the ececuted agreement). This is addressed at Carey 199

 

I have already held that the purpose of the s78 copy is not to provide proof. Here it needs to be remembered that under s127 (3), the Court must not make an enforcement order “unless a document… containing all the Prescribed Terms… was190(1) signed by the debtor” [judges emphasis]. The failure to provide a s78 copy (which need not contain the signature in any event) does not mean that an agreement was not signed at the time.

That seems to me quite specific on what makes an agreement irredeemably unenforceable on that piece of removed legislation.

[jackreacher]

Sorry to be a killjoy but here's an alternative view..

 

It then examines the situation further at 53 it was contended that the creditor must prove execution of the agreement by reference to the original document itself - this was rejected and lists the 14 reasons for that following and concluding at 54

 

 

MB with such knowledge why don't you ever offer some help? ?

 

eg; rather than dismissing Carey and the rejected 14 points at para53 use them to Isbos' advantage. IMO His main defence is the judge has ordered the Original docs. The claimant is planning on using a s78 reconstituted document as the 'proof purpose'. lets put heads together and help ISBO. All judges have heard of Waksman.. I am at work but here is 10 mins of my time.. will others please improve on my drivel..there are better sources than Waksman. lets help isbo not argue.

 

 

 

WaksmanI have already held that the purpose of the s78 copy is not to provide proof. Here it needs to be remembered that under s127 (3), the Court must not make an enforcement order “unless a document… containing all the Prescribed Terms… was190(1) signed by the debtor” [judges emphasis] ---------pretty clear 78 is not proof purpose and their needs to be a document.. the original agreement

 

Waksman and s78 is about a request for information. It is not for Proof purpose, for that you need the original agreement as Waksman tells you in the so called rejected 14 paragraphs among many other places. ISBO your Judge has ordered the originals be disclosed, you are in a strong position. They are using Waksman in their claim so use that to fight back. Plus if they are going to use Carey they will have to supply you and the court a copy a failure to do that ask for an adjournment on the claimants costs.

 

'I have already held that the purpose of the s78 copy is not to provide proof'. Many times he repeats it.. s78 is not for proof purpose. So..if s78 is not the proof purpose what is?.. it is "The original agreement' which they have been ordered to provide!

 

Actually at para 44 waksman explains what is the 'proof purpose'... The Claimants say that the information is both as to the present and the original position under the agreement, and the reason for having the information about the original agreement is so that the debtor may be satisfied that he did indeed enter the agreement by signing a document which was a properly executed agreement ("the Proof Purpose").

 

and again

 

 

53) (8)]Moreover, the Proof Purpose contention requires that the creditor retain not only the front of the application form - where the signature would be but also the reverse, assuming that not all the terms were on the front and the reverse was not simply blank. It would not be enough for the creditor to produce a copy of what it said were the prevailing terms at the time for that card. Mr Uff said that this additional burden might be avoided if the front of the form had some sort of code on it, perhaps at the bottom, to indicate the precise set of terms which would apply and which could in turn be ascertained by reference to that code. But absent that both sides would be needed;

 

 

53) 5 Mr Uff thought that the omission was because the signature may have been on a set of carbon copies and the one retained by the creditor was too faint to reproduce; on the facts there is no evidence that this sort of problem could occur but if it did, it would suggest that the duty on the creditor to keep the original executed agreement as proof of the agreement made by the debtor may not be able to be fulfilled...note the word duty!

 

(11) It is said that if the debtor cannot have a copy in the sense required (for the most part) by Mr Uff and Mrs Thompson then he is at a disadvantage should he wish to challenge whether he made a properly executed agreement at all. I do not agree. First, this point only has real force if the Proof Purpose underlay s78 and I do not think that it does. Second, it assumes that there is no obligation on the debtor to make out at least some sort of positive case as to improper (or non-) execution of the original agreement. If he does and for example asserts positively that although he has been using a credit card agreement for years he never actually signed an agreement, or one that complied with s61, the creditor may well have to try and find the original in order to deal with that allegation. (I deal further with the absence of such positive allegations in relation to s61 when I consider below the Applications.) But that tells one nothing about the scope of s78;

 

And at 4 of the summing up It tells you the creditor must still provide a copy of the original agreement, as well as the varied terms;all agreements that have been running for a year or more will have had their terms unilaterally changed. apr etc.

 

 

SUMMARY OF FINDINGS

 

(1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;

 

(2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;

 

(3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;

 

(4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

 

(5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;

 

(6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;

 

(7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;

 

(8) The claims that there was an unfair relationship and an IEA in Adris should be struck out or dismissed. The claim that there was an IEA in Yunis should be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.

[shamrocker]

"Plus if they are going to use Carey they will have to supply you and the court a copy a failure to do that ask for an adjournment on the claimants costs."

JR - are you saying that the Claimant should have exhibited a copy of the Carey case?

 

Good points with regards Proof Purpose - I was trying to extract the relevant bits from Carey myself earlier in light of MB's alternative interpretation, but I'm busy with work myself, so am glad you popped along with it. I also know from our previous discussion that you have used this very point to your advantage in the past and are well versed in that regard.

 

MB - the main objective here, as far as I am concerned, is to enable isbo to put up some form of fight. It's very late in the day to start getting too drawn into the detail, whether the points being made are wrong or not. Let the Claimant worry about that - offering some resistance is better than what isbo was going to offer without our advice.

 

Isbo, don't get too drawn into the detail here as it'll send you in a spin. Discussions around this can be complex, but we haven't time to dwell. Read the Carey case sometime when you have nothing better to do and some of it will make sense.

 

Can you incorporate some of JR's points on Proof Purpose into your WS? The burden of proof is on the Claimant to prove they have a case. You are putting them to strict proof that they are chasing a debt under an agreement that you signed. In light of the original being absent, they have no idea whether you signed an agreement or what was contained within that agreement. They ought to satisfy those doubts before they take enforcement action and you have every right to challenge them to do so!

 

Sham

[isbo]

OK thanks ever so much for your continued help folks.

SUPPLEMENTARY WITNESS STATEMENT:

 

IN THE County Court ofxxxx CLAIM NO: xxxxx

 

BETWEEN:

HOIST PORTFOLIO HOLDING 2 LTD Claimant

 

-and-

 

MR xxxx Defendant

 

SUPPLEMENTARY WITNESS STATEMENT OF MRxxx of ADDRESS

 

I. Mr XXXX the defendant in this claim make the following statement believing it to be true will state as follows:-

 

1. In relation to the claimant's paragraph 3.

- I have no recollection of entering into an agreement with Barclays in 2008,

indeed my recollection is that it was in 2006, and whilst I have no existing documents available to you support this, the Claimant is put to strict proof to evidence the commencement date by complying with the Court’s request for original agreement and documents.

 

 

2. I challenge the reconstituted agreement as it is clearly in breach of s.61 of the Consumer Credit Act 1974 thus - signing of the agreement, as it does not contain a signature for the debtor and creditor.

Therefore, it is improperly executed.

 

 

3. Section 65 of the Consumer Credit Act states that "An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only." but the Court's discretion to determine the enforceability of pre-April 2007 agreements is removed by virtue of s.127(3).

 

4. It is denied that a default notice pursuant to s87 and s88 of the Consumer Credit Act 1974 has been received and the claimant is again put to strict proof to produce a true copy of the original default as per the court's directions. A valid Default Notice is a strict requirement before enforcement action can be taken following a breach of a regulated agreement. Whilst the Claimant states that one was issued, and has disclosed a "reconstituted" version from their system, they have not evidenced that one was actually issued following the alleged default and thus complied with the terms of the Consumer Credit Act 1978. The Claimant is prevented from taking enforcement action until a valid Default Notice has been issued.

 

5. I challenge paragraph 4 of the claimant's submission

- i.e. that a reconstituted agreement is rendered enforceable as a consequence of Carey v HSBC: This case applies to how a creditor can satisfy their duty under the Consumer Credit Act 1974 following a s.78 request by the debtor, but in no way does it render a recon agreement 'enforceable'.

Waksman QC, in the aforementioned case, was quite clear that a reconstituted agreement (which is effectively an improperly executed agreement) could only be enforced at the discretion of the Court, but this discretion only exists for post-April 2007 agreements.

In the summary of findings of said case it was found “Mr Uff thought that the omission was because the signature may have been on a set of carbon copies and the one retained by the creditor was too faint to reproduce; on the facts there is no evidence that this sort of problem could occur but if it did, it would suggest that the duty on the creditor to keep the original executed agreement as proof of the agreement made by the debtor may not be able to be fulfilled” i.e. the duty is on the claimant and this has not been forthcoming. And also it was stated the claims that there was an unfair relationship and an IEA in Adris should be struck out or dismissed. The claim that there was an IEA in Yunis should be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a Section78 copy, was fatal to that claim.

 

 

Until the claimant supports with evidence their claim that the agreement meets the criteria necessary for the Court to have discretion with respect to its enforceability, their assertion of compliance with s.78 being sufficient grounds for enforceability should be denied.

On the basis of the above I request that the Court rejects the claimant's claim.

6. As per CPR 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

7. On the alternative, as the Claimant alleges to be an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act.

 

8. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

I believe that the facts stated in this Witness Statement are true.

 

Signed

 

Dated on this day 4th October 2016

[Andyorch]

Carey is irrelevant as the agreement is pre 2007...Carey is with regards to complying with a section 77/78 request...not for enforcement purposes.

 

Andy

[isbo]

Off to the Post Office now, and the Doctors to pick up their letter to put with the hospital one.

[shamrocker]

Off to the Post Office now, and the Doctors to pick up their letter to put with the hospital one.

 

Good luck isbo.

[isbo]

Thanks sham. Another fifteen quid in postage today!

[shamrocker]

Thanks sham. Another fifteen quid in postage today!

 

£15.....?

 

Don't tell me you're using Special Delivery?

[isbo]

Yes, have done on every submission mate.

[Vauban]

Yes, have done on every submission mate.

 

Free proof of posting is more than sufficient.

[isbo]

I didn't know there was such a thing!

[shamrocker]

Personally, I always use 1st Class Signed For. It costs about £2, but it's not guaranteed next day. You're running out of time, so it's probably not a bad shout to use SD in this case....at least it'll get there tomorrow.

[isbo]

I agree, apart from the cost it's no bad thing. The stupid thing is I've deliberately not done the SWS until the urgency appeared yesterday, as I thought I was supposed to take it with me on Monday. Would you appear on Monday, sham?

[shamrocker]

Unless you can agree upon a settlement in the meantime, then yes I'd definitely go. If you do, you would be advised to put a skeleton argument together for it. I don't know what your chances are in all honesty, but I'd favour trying to settle before Monday....if that's even possible at this late hour. Letting it go to court risks them getting judgement and you having to pay the whole amount. If they don't want to settle then you have no choice, but not turning up will definitely end badly for you.

 

What are your thoughts?

[isbo]

I don't know. I've said all along that my fear is being tied up in 'legalese' knots by the claimant and the Judge. Given that I had a hunch that I'd be better off NOT going and then it's down to the black and white of the WS/SWS's.

[Andyorch]

They wont tie you up in Legalise...the Judge directs the hearing and is fully aware you are Litigant in Person.

[isbo]

Thanks for sparing my blushes and saying what an LIP is - I'd seen it used here and was to embarrassed to ask! Great to hear re the Judge.

[isbo]

Just seen the great news that jay had a letter saying his was discontinued. How I wished that were the case for me.