**DISCONTINUED** Claim for Statute Barred debt recieved 07Aug 2017

[eiggy]

Re: Claim for Statute Barred debt recieved 07Aug 2017

What is the Issue Date on the claim form because in your CPR 31.14 Request to Howard Cohen you refer to filing your Defence on 28th August?

In post # 2 you say that you have been sent a Barclaycard application form and Ts & Cs in response to your previous CCA Request to Robinson Way in 2015.

You speculated that they may be reconstituted documents but that doesn't necessarily mean that they haven't complied with your s.78 CCA Request which is for 'information' purposes not 'proof ' purposes' (whether the documents are honest and accurate recons is a different legal argument

I think you need to focus on all your potential legal arguments in case pleading Statute Barred isn't successful.

When was the last payment made by you and to whom did to pay it? You say you received a DN in 2010 but did you make any payments after that and when was the account actually defaulted by Barclaycard (the 'defaulted' date and the DN date are not the same thing)?


Di

Issue date was August 7th - I mentioned the 28th in the CPR request as I thought you were required to give a date. I have 28+5 days to file is what I understand.

MKDP were unable to reply to my CCA request so I made a new request to Robinson way back in 2015. They replied to my request in May 2017, 2 years later! They sent a few copy's of account statements a one page unsigned agreement and two pages of conditions. (Reconstituted?).

I made a SAR request to Barclays in 2015 and the replied with statements etc. Included was a copy of an application for a Barclays Premiership card signed by me, its one page and contains no terms and conditions. Worth noting that I never had a Premiership card it was just a standard one.

How do I find the actual default date? I have a letter from Mercers from February 2010 titled Default notice served under section 98(I) of the consumer credit act 1974, is that not the default date?

Last payment made by me was some time in January 2010, Barclaycard offset £100 from my Barclays account in February 2010 and that was the last payment. The balance from then till now is exactly the same so there's no way my CCA £1 was used as payment as there would be a £1 difference?

Sorry I've been not replying as quickly as I should I've got so much going on at the minute, thanks for all your help with this.

[eiggy]

Re: Claim for Statute Barred debt recieved 07Aug 2017

Thanks to the example defence on the website this is what I've got - is it too much or will it do - it has to go in Friday at the latest. Thanks

DEFENCE
1.I received the claim ...... from the Northampton County Court on 10/08/2017.

2.Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

3.This claim is for a Credit Card agreement regulated under the Consumer Credit Act 1974.

4.It is denied that the Defendant has previously entered into a properly executed agreement with Original Creditor for provision of credit.

5.On the 27/03/2013 I sent a formal request for a copy of the original agreement to the previous account owner MKDP LLP pursuant to section [77 or 78] of the Consumer Credit Act 1974 along with the statutory £1 fee. MKDP LLP were unable to comply and the account was in dispute.

6.The account and alleged debt was assigned by MKDP LLP to the Claimants client Robinson Way on the 01/10/15 even though the account was in dispute.

7.The Defendant contends the alleged debt is statute barred by virtue of Section 5 of the Limitations Act 1980 in that no payment or acknowledgment has been made for over 6 years.

8.On the 11/08/2017 I wrote to the Claimants Client Robinson Way stating that the alleged debt is statute barred. The Claimants client Robinson Way replied to me on the 16/08/2017 stating that a payment was made to the alleged account on the 31/03/2013 and it was not Statute Barred. The date of this alleged payment coinsides with a CCA request made by me on the 27/03/2013 to MKDP LLP.

9.The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

10.The Claimant’s Particulars of Claim fail to state when the agreement was entered into.

11.The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.

12.On the 11/08/2017 I sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to Howard Cowen & Co. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment.

13.Howard Cowen & Co has not sent any of these documents to me.

14.Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore, it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

15.I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case and to prove the alleged debt is not Statute Barred else the Claim should stand struck out.

16.In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

17.It is denied that the Claimant is entitled to the relief as claimed or at all.

[eiggy]

Re: Claim for Statute Barred debt recieved 07Aug 2017

Greetings - update.

Need some help with my next steps.

After submitting my defence 08/09/17 I have today 07/10/17 received Notice of Proposed Allocation to the Small Claims Track from the CC Business Centre.

File by date is the 23rd of October.

Q. Do I agree to my case being referred to the Small Claims Mediation Service?

Q. Do I agree that the small claims track is appropriate?

Any thoughts about the defence I submitted?

Thinking out load, are they really going to peruse this? I can prove its SB by providing documents as far back as 2011 with a balance equal to what is being claimed today so no payment has been made as they are suggesting. There's no properly executed agreement and the debt was assigned whilst it was in dispute.

Thanks for any advice offered on this.

[warwick65]

Re: Claim for Statute Barred debt recieved 07Aug 2017

Hi
For the DQ I would say yes to both.

Did you actually submit a defence other than your letter to RW?

If not the problem you have is that aspects raised other than those in your letter may be difficult to introduce for trial

[eiggy]

Re: Claim for Statute Barred debt recieved 07Aug 2017

Hi
For the DQ I would say yes to both.

Did you actually submit a defence other than your letter to RW?

If not the problem you have is that aspects raised other than those in your letter may be difficult to introduce for trial

Hi, thanks for your reply. Yes I submitted a defence to the court on the 08/09. Its in post #17 above. Any thoughts? Too amateur?

[eiggy]

Re: Claim for Statute Barred debt recieved 07Aug 2017

Oh no! Should I have mentioned the letters I have proving the unchanged balance proving non payment for SB purpose in my defence? Gutted if so as its clear cut evidence RW are not being truthful. They still have to prove the alleged payment the say was made in 2013 right? This payment does not exist.

[warwick65]

Re: Claim for Statute Barred debt recieved 07Aug 2017

Hi
A couple of points

As far as I know there is nothing to stop someone selling an account with an outstanding CCA request on it because the FCA do not really class that as a dispute. In this case however I am assuming the sale was actually when MKDP ( part of Compello) were sold to Hoist. Robinson Way is a part of Hoist

Now just something to think about although difficult to argue- who exactly are the claimants? Not all versions of Hoist are licensed although you have not included it in your WS

So you sent a CCA request which they haven't complied with, although from what you say they did send a recon which may suffice - when was the account opened?

They have not sent a S87 DN

It is SB

These are points that you can address in your WS - it would help if you could prove when you sent the CCA request as this would show it is possible/probable/more likely than not/ the £1 payment was used towards the account. The fact the balance hasn't altered must help as well

[eiggy]

Re: Claim for Statute Barred debt recieved 07Aug 2017

Hi
A couple of points

As far as I know there is nothing to stop someone selling an account with an outstanding CCA request on it because the FCA do not really class that as a dispute. In this case however I am assuming the sale was actually when MKDP ( part of Compello) were sold to Hoist. Robinson Way is a part of Hoist

Now just something to think about although difficult to argue- who exactly are the claimants? Not all versions of Hoist are licensed although you have not included it in your WS

So you sent a CCA request which they haven't complied with, although from what you say they did send a recon which may suffice - when was the account opened?

They have not sent a S87 DN

It is SB

These are points that you can address in your WS - it would help if you could prove when you sent the CCA request as this would show it is possible/probable/more likely than not/ the £1 payment was used towards the account. The fact the balance hasn't altered must help as well

Head spin! Hope I'm understandable in my posts and I hope you don't mind the quote.

The account in dispute issue - understood.

The claimant on the Claim Form are Hoist with HC&Co in the box below as address to send docs.

What's my WS?

Account was opened in 2004? - Have a barely legible application form for a Premiership BC, got this from BC through a SAR made years ago. Never had a Premiership card, the one I had was one of normal ones. Don't think this application was ever shared with any DCA or has any bearing on this alleged debt.

Have a copy of the CCA request I sent when the alleged payment was made and a load of unable to comply letters after that.

Is this going to go to court? Does receiving the DQ mean they are still perusing it?

[warwick65]

Re: Claim for Statute Barred debt recieved 07Aug 2017

First off don't panic

The act the court has sent you a Directions questionnaire means that at the moment they are still following through with the claim but that doesn't mean they will

Usually the next stage is for you to get a date from the court and there are usually some instructions such as
The claimant has to pay the court fee by a certain date
Both sides have to file a witness statement (WS) along with any documents they intend to rely on in court by a certain date

Now, the WS ( Witness statement) is where you get to tell the whole story although the crux of your defence seems to be it is statute barred

Do you remember just how you opened the account, was it just an application form and they sent you a card?

Now although by rights you can not introduce new items into your defence during a WS you might be able to shoe horn them in

So for example
I sent the claimants representative a request under Cpr 31.14 for inspection of document before the claim was allocated to a track. They have failed to answer. When I opened the account it was done by completing an application form a Sunday newspaper magazine. ( or whatever you remember) . There were no terms and conditions and I have been told that this means the agreement was improperly executed and therefore, because the agreement was dated 2004 it is unenforeceable by virtue of S127(3) CCA

That is just an example and may or may not fit your circumstances- remember you must not lie
Something else to remember , in the small claims track you do not need to disclose all the documents you may or maynot have - but again you shouldn't lie
An example might be if I really did have a copy of the original agreement that was all good and proper you could skirt around this by saying you asked the claimant for the agreement and they didn't comply

You still have some time and there are plenty of WS examples around
[MENTION=6]Amethyst[/MENTION] [MENTION=49370]Kati[/MENTION]
Are there any good examples you know of ?

[eiggy]

Re: Claim for Statute Barred debt recieved 07Aug 2017

Thank you I really appreciate you help.

Honestly I have no idea how I got the BC, all I got from the SAR is this Premiership card application from 2004, no conditions etc - I never had one of those in anyway. Somethings is telling me though that I had a phone call one day offering me a BC, one of those original ones and that's how I got it.

What about this mediation suggestion on the DQ?

[warwick65]

Re: Claim for Statute Barred debt recieved 07Aug 2017

I am not sure how you should play this, you could say that your SAR only shows an application form and therefore you can only conclude their was no signed agreement . [MENTION=87380]Diana M[/MENTION] [MENTION=6]Amethyst[/MENTION]

Any ideas

[Diana M]

Re: Claim for Statute Barred debt recieved 07Aug 2017

you could say that your SAR only shows an application form and therefore you can only conclude their was no signed agreement . @Diana M @Amethyst

Why would the OP disclose anything they've obtained privately from the OC by way of a SAR when they're under no obligation in the Small Claims Track to disclose all documents in their possession?

Suppose that Application Form is the real deal (credit agreement) and the OP has misunderstood the type of Barclaycard product they had? Did they have two Barclaycard accounts?

If the OP admits they've received documents from the OC (SAR) then the Claimant could make an application to the court to force disclosure of the whole file.

That could be awkward to say the least if the SAR contains information the Claimant needs to prove their case and/or reconstitute documents such as the DN and/or the NOA.

Ask don't tell with litigation (as I keep saying ).

Di

[Diana M]

Re: Claim for Statute Barred debt recieved 07Aug 2017

I have no idea how I got the BC, all I got from the SAR is this Premiership card application from 2004, no conditions etc - I never had one of those in anyway. Somethings is telling me though that I had a phone call one day offering me a BC, one of those original ones and that's how I got it.

Are you saying you only ever had one Barclaycard account regardless of how it was opened (written application or phone call)?

A SAR should include all information Barclaycard holds on you so what does it say in the Transaction Log about two accounts?

If the Application Form in the SAR is dated 2004, when did you open the account you believe you may have applied for over the phone?

Could you have had another credit card such as Egg or MSDW etc which were bought by Barclaycard?

Di

[warwick65]

Re: Claim for Statute Barred debt recieved 07Aug 2017

Great points made by Di however I might disagree if you can use something from the SAR to directly contradict something they claim in their WS

The problem may be that deadlines for a WS may mean you do not have chance to see theirs before you file yours, of course if they think you are a flakey Litigant in person (LiP) they may just send you theirs early - if of course it gets that far

Examples might be if the date the DN was issued from the SAR is different to what they say or maybe the date of assignment - if you can throw doubt on their 'evidence' it might lead a judge to question the rest of it.

[Diana M]

Re: Claim for Statute Barred debt recieved 07Aug 2017

Great points made by Di however I might disagree if you can use something from the SAR to directly contradict something they claim in their WS

The problem may be that deadlines for a WS may mean you do not have chance to see theirs before you file yours, of course if they think you are a flakey Litigant in person (LiP) they may just send you theirs early - if of course it gets that far

Examples might be if the date the DN was issued from the SAR is different to what they say or maybe the date of assignment - if you can throw doubt on their 'evidence' it might lead a judge to question the rest of it.

Litigation is about timing and when to show your hand (tactics tactics tactics).

It's also about the element of surprise.

Reveal your hand too early and you'll give your opponent the opportunity to remedy a situation.

The best moment (for me ) is when you drop a bombshell in court which blows their claim out of the water because they've no time to recover from the situation.

You put a document in the Trial Bundle without making direct reference to it in your WS. You then refer to the document in court (because you can because it's been disclosed) and some small detail in that document demolishes their claim in one fell swoop.

Di