Court action by Hoist holdings / Barclaycard

[Olliepup]

Yes it’s a shame the first defence is had the cca request in but it failed and I got frustrated and missed it off!

sent cca today to be signed for first class

[Olliepup]

Had a reply off cohen stating “They have recieved my CCA request and will furnish me with it once they get it “ hate that phrase , furnish me !

Spoke to court today and its 100 quid to update my defence to include the cca if one doesn’t appear , will await first and just send back the paper works next week ,

[jaguarsuk]

Had a reply off cohen stating “They have recieved my CCA request and will furnish me with it once they get it “ hate that phrase , furnish me !

Spoke to court today and its 100 quid to update my defence to include the cca if one doesn’t appear , will await first and just send back the paper works next week ,

If one doesn't appear you can ask the Claimant to agree to amending your defence at their cost, they'll refuse of course and you pay to amend it. If they then proceed and are unable to produce a CCA you'll win and can ask for costs to get you money back. If they discontinue you can also ask for costs to get your money back.

[Diana M]

Spoke to court today and its 100 quid to update my defence to include the cca if one doesn’t appear , will await first and just send back the paper works next week ,

If you want to amend your Defence you will need permission from the court unless the other side consent to your Application. It's not as simple as paying 100 quid to update it as an automatic right.

At the moment you're vulnerable to an Application by the Claimant for a Summary Judgment to strike out your Defence as having no merit (you've only pleaded Statute Barred and now you know it isn't).

The Claimant's solicitors have acknowledged your CCA Request but since they've already informed the court that they intend to continue with the proceedings the claim won't become stayed while they take their time producing the credit agreement or a reconstituted version.

If they feel they may not be able to comply with your CCA Request then they may decide to go for the SJ. Or they may decide that they'll carry on in the hope that they can comply before the Hearing which will be some time in the future.

You're at the Directions Questionnaire stage aren't you? You need to proceed as if this will go all the way to Trial so don't miss the DQ deadline.

Di

[warwick65]

If one doesn't appear you can ask the Claimant to agree to amending your defence at their cost, they'll refuse of course and you pay to amend it. If they then proceed and are unable to produce a CCA you'll win and can ask for costs to get you money back. If they discontinue you can also ask for costs to get your money back.

If only it was that simple. In the Small Claims track costs are not routinely awarded and maybe a judge would think it your own fault you had to apply to amend your defence and not award costs

Do not charge ahead blindly thinking you will automatically get costs

I would take not as to what Diana M has said above

[jaguarsuk]

If only it was that simple. In the Small Claims track costs are not routinely awarded and maybe a judge would think it your own fault you had to apply to amend your defence and not award costs

Do not charge ahead blindly thinking you will automatically get costs

I would take not as to what Diana M has said above

Given that the OP knows that this isn't stat barred then regardless of prospect of costs being awarded them, there's going to have to be an amendment to the defence or a settlement.

The OP would be foolish not to ask for costs if they can't produce the CCA citing CPR 27.14 in that the claimant issuing a claim on an unenforceable debt is poor conduct on their part and that had they not issued it via MCOL they wouldn't have gotten away with that abuse of process.

Di rightly points out what is the main worry, a potential application for summary judgement under part 24.2(a)(ii).

[warwick65]

I just don’t ‘get’ it
You lob in a grenade of bad advice and then when challenged you go off at a tangent.

It has already been established that there needs to be an amended defence to stop a SJ but you started going on about costs. You should know as well as I do that costs are not routinely granted in the small claims track. If the claim is discontinued and you apply for costs you are setting yourself up potentially for a whole world of hurt if that application is refused. Maybe the OP should get some responsible legal advice

[Olliepup]

Thanks for all the advice given in this thread , so a sj can be given without it getting to court if my defence is striked out ? I’m hoping that they can’t produce one so it gives me better bargaining tool as I messed up the defence !

Surely they wouldnt try to wouldnt try to claim money that they aren’t legally entitled too?

The questionnaire is due back by the 22nd so I will post it to be signed for Friday this week .

i guess worst case scenario I have to just pay it to stop a ccj?

[jaguarsuk]

I just don’t ‘get’ it
You lob in a grenade of bad advice and then when challenged you go off at a tangent.

It has already been established that there needs to be an amended defence to stop a SJ but you started going on about costs. You should know as well as I do that costs are not routinely granted in the small claims track. If the claim is discontinued and you apply for costs you are setting yourself up potentially for a whole world of hurt if that application is refused. Maybe the OP should get some responsible legal advice

I know they aren't routinely awarded, but the fact that in some instances they are and it's a consideration to be had.

As I stated at the end of my last post to try to steer away from you continuing this futile avenue.

the main worry, a potential application for summary judgement under part 24.2(a)(ii).

Olliepup the point is that you have entered a defence to their claim, the only argument you have presented to counter their argument it's owed is statute barred. The court doesn't know whether they do or don't have the documents because your deference doesn't assert that they might not. If they make an application for summary judgement all they have to prove is that it isn't statute barred as that's the only argument they have to counter.

The point of amending your defence is to present further legal arguments for them to have to counter and that is why Di was so concerned that you only presented one argument.

[Olliepup]

jaguarsuk yes thanks , I appreciate that I made that mistake but if they don’t comply with the cca request this time if it goes to court and I have missed it off my defence how can they still legally try to collect the money with out the agreement ?

[jaguarsuk]

Olliepup



hi, they only have to plead their case and counter any arguments you have put forward in your defence.

Because you haven’t contested the validity of the CCA in the defence they can ask for the case to be decided purely on thiers and your statements of case (particulars of Clam & defence).

As as Claimant I got away with introducing things at Witness Statement stage recently due to being LiP (representing myself) by also withdrawing part of the claim. I was able to play on not being legally trained and the judge bought it.

That is not a tactic you want to rely on and I was very lucky to get away with it. It’s only that the changes became apparent 1 day before I had to submit Witness Statements that I chanced my arm and had I had more time I’d have paid to amend my claim.

You can’t introduce additional arguments in your witness statement and you need to amend the defence. If they apply for summary judgement there will be not Witness Statements or hearing.

By amending the defence, even though it’ll cost you a fee you are introducing a new argument. You are making it a requirement that they prove the validity of the debt by producing the agreement.

And if they cant produce the agreement then the court cannot rule in their favour. If you just stick to Stat Barred then the court will simply look at whether it is or isn’t stat barred, nothing more!

[Olliepup]

jaguarsuk yes I understand that now , I spoke to the court yesterday , they haven’t received Cohen’s questionnaire yet , I enquired about amending my defence as I filled it out in a hurry and panicked and missed out vital information , she said I would have to apply to the court it gets assigned , which would potentially be my local one , they still only have 12 plus 2 days to comply with the cca ? If they didn’t produce one I think it would be worth the 100 quid gamble to try and amend .....

[Diana M]

If they apply for summary judgement there will be not Witness Statements or hearing.

That is incorrect legal advice.

Diana M

[jaguarsuk]

Olliepup

yes, the 14 calendar days apply as long as you have posted the letter to the claimant and sent the fee of £1 with it.

Amending the defence will be a priority, but you may be able to settle this at mediation after doing that and if you can reach an agreement at mediation then you wouldn’t have a CCJ against you.

Its worth bearing in mind that this doesn’t have to end in a hearing for you to have got a result favourable to you.

[Amethyst]

Also remember that a breach of the 12+2 only renders the agreement unenforceable without order of the court WHILE they remain in breach, they can recitify at any time before Judgment. So even if you amend they could just come back with valid docs.

Can you post up your current live defence, we'd best start on what amendments you need to make as you definately will need to.

The payment/s was made to AIC I think you said, were just they acting on behalf of Barclaycard before it was sold to Hoist ? (checking assignment was just BC to Hoist not via a third party in between) ( also seems odd to make payments to a debt collection company by cheque - it would mean there is an evidential copy of the cheque and accompanying letter acknowledging the debt somewhere, not that they are going to produce it ) ( also... sorry lol .... why did you start paying AIC as that was after you'd started your CCA quest - so was there a CCA provided that you've forgotten maybe ? )