Caretaker v ( Restons ) ( COA / DN )

[Caretaker237]

Hi Carlos,

The comments provided by Diana M regarding the issue of S87(1) DN and the Cause of Action are important.

District Judges are going off the date on the S87(1) DN as the Cause of Action. They aren't considering the last missed payment to be the date of accrual for the Cause of Action. This is vital to consider when using the Statute Barred defence.

If the S87(1) DN was issued within six years of the date on which legal proceeding began, then the Statue Barred defence is almost bound to fail, even if the last missed payment was outside of the six year time limit. What is important is whether or not a copy of the S87(1) DN is contained in the claimants evidence bundle. You wont have that yet, but they only need to enclose a reconstituted copy, which will almost certainly guarantee its presence in the evidence bundle once they proceed to that stage.

I am speaking from recent experience. On December 2017 in County Court I lost in a claim brought by Cabot's via Restons Solicitors. This was originally a Capital One debt sold to Cabot.

My defence was a Statute Barred defence, and I had proof of the last missed payment which was four months outside of the six year time limit. The S87(1) DN was issued within six years of the date on which legal proceedings began, and the Judge ruled in favour of the claimant.

They sent a Barrister from Temple Row Chambers in Birmingham. It was far from one sided but the Courts seem to be going with the date on the S87(1) DN and not the last missed payment date.

The claim had been stayed for almost two years. The stay was lifted without question.

There is a lot of debate regarding the accrual of the Cause of Action date for a Statute Barred defence, but the S87(1) DN is what is being accepted by the District Judges. Try finding anyone online who has used the defence successfully in Court where the S87(1) DN was issued within six years from proceedings and you will draw a blank. There is a reason for that.

There are a lot of misleading posts titled "WON" regarding Statute Barred claims, when in fact all were discontinued by the claimants. That's not the same as winning an argument in court.

In most of the discontinued claims the S87(1) DN was issued and dated outside of the six year time limit from when the legal proceedings began, and therefore the claim in those cases would not have succeeded in court where a Statute Barred defence was raised. That's the big difference.

Things to consider and I hope this helps.

Regards and good luck.

[Amethyst]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

[MENTION=110010]Caretaker237[/MENTION] This may be of interest to you if you haven't read it already - http://legalbeagles.info/forums/show...-on-limitation - which agrees with what you have said regards Judge's current viewpoint on the DN being required for cause of action. Hopefully it will go on to be appealed further.

We do now always try and mark cases as discontinued rather than won if they have been discontinued rather than won in court.

Since BMW v Hart the statute barring argument from last payment has been on very thin ice (wrongly IMO) so we've generally tried to ensure it is 6 years from default or termination rather than just last payment if that is the only ground of defence being used.

[warwick65]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

I am not sure if we know exactly what the defence was but your case is absolute proof you should go into court with more than just a SB argument.
If a comprehensive defence has been entered the claimant has a whole host of things to prove. Not just was a compliant DN issued but cca request assignment etc.

In my cap 1 case this week we did not plead SB but there was no DN compliant or otherwise and no attempt at a recon.

I am sorry you lost, I'm guessing it was a decent amount if they sent a barrister.

[warwick65]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Caretaker, I was not disagreeing with your comments by the way. Did you ask if you could appeal and is it worthwhile

[warwick65]

Caretaker v ( Restons )

Maybe no need just yet , see what happens next but I am pleased you have several lines of attack. Should make things better for you and more difficult for them

[warwick65]

Caretaker v ( Restons )

Maybe no need just yet , see what happens next but I am pleased you have several lines of attack. Should make things better for you and more difficult for them

[Caretaker237]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Hi warwick65,

Restons will always send a Barrister. Its very rare to go up against a Solicitor in Court from what I have been told. This was a Summary Hearing, not even a trial. The claim against me was for a couple or grand, so very much at the lower end of the scale. They didn't retain legal counsel until seven days prior to the hearing.

In terms of using another argument, well that would only apply if you had another legal argument. In my case everything else was in order. Copies of the agreement signed along with the relevant S87(1) DN were all in order present and correct. It was always going to come down to the Statute Barred argument and the Judge's interpretation of when the Cause of Action accrued. So you are 50/50 at best when going into court.

The S87(1) DN argument is a compelling one from the claimants point of view. Its hard to argue against that, and my point was that the S87(1) DN could have been issued much sooner that it originally was. However the courts do seem content with allowing a creditor to drag their heels or even delay the issue of the S87(1) DN. Regardless, this seems to now be considered as the Cause of Action.

If the S87(1) DN was within six years of claim proceedings then I believe that it is very likely that the claimant will eventually produce all the relevant documents needed for a hearing.

It is likely the claim will first becomes "stayed" That seems to be a popular tactic, and of course it will allow the claimant to run up the legal costs and give them a chance of claiming those costs in a Summary Hearing, when they would have not been able to do so under the Small Claims Track.

In my case, the cost award was for the statutory minimum, and so I was lucky. At one point the costs exceeded the principle amount of the claim.

So many things to consider. You play the waiting game now. My timeline was 23 months from claim, stay, to hearing.

Regards

[Caretaker237]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Hey no worries, I do see your points.

No appeal from me. The costs associated with an appeal would far exceed the principle that was claimed, and I would not get those legal costs back if I did eventually win. So there would be no point.

That aside there would need to be a suitable legal argument against the decision and there isn't one. With regards to the Cause of Action then it is either the date of the S87(1) DN or the last missed payment. Where is the legal argument that proves that the S87(1) DN date is the wrong choice for the Cause of Action? Where is the compelling argument that proves or even suggests that the Cause of Action should absolutely be the date of the last missed payment? There isn't one.

I believe that the last missed payment is a much cleaner point for which the Cause of Action should accrue, and one that isn't open to abuse, but the fact that a S87(1) DN is required under the terms, before legal proceedings can begin, throws major doubt over that as a defence.

In terms of the proverbial spanner into the works, then the presence of a S87(1) DN in the claimants evidence bundle is like an Exocet missile to the engine block of the defence.

Regards

[Diana M]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Restons will always send a Barrister. Its very rare to go up against a Solicitor in Court from what I have been told.

Who told you that?

I can't agree 'carte blanche' with what you were told based on my firm's experience.

Di

[Caretaker237]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

You had the card from 01/08/2011 and didn’t make a payment.

The default is registered as January 2012.

Assuming that you originally used the card in August (08)2011 then your first payment would have been due on or around 01/09/2011.

First missed payment. 01/09/2011.

Second missed payment. 01/10/2011

Third missed payment 01/11/2011

After three missed payments you would have received a S87(1) DN giving you 28 days to bring the account up to date or have a Default registered against you.

That brings you into January 2012 for the date on which the Default would have been registered, assuming that you didn’t remedy the arrears as set out in the S87(1)DN.

The S87(1) DN will have probably been dated around December 2011.

If the date on the S87(1) DN is on or after 15/11/2011 then it has been served within six years of the date on which legal proceedings began. This will be considered as the Cause of Action, and it will be within the six year time frame and not Statute Barred.

The creditor only needs to produce a reconstituted copy of the S87(1) DN based on their “records”

For clarity, where a copy of the original S87(1) DN is absent,
the Courts will accept that on the balance of probability the original S87(1) DN was served 28 days prior to the registered default date.

If you received the credit card on 01/08/2011 then the first missed payment could not have been earlier than 01/09/2011, making the third missed payment no earlier than 01/11/11. In reality the timeline is probably later than 01/09/11 for the first missed payment, bringing the whole timeline forwards by a month or so, which would be consistent with the default date entered on your Credit Report.

The last missed payment is becoming redundant with regards to a Statute Barred defence, because District Judges do not consider that to be from when the Cause of Action accrued.

You need to take this into consideration when assessing the potential costs to defending the claim. The costs are likely to increase along the timeline should the claim become stayed. In my case the costs started at around £200 on receiving the claim. By the time the application to lift the stay was entered, the claimants costs had exceeded £1300, and that didn't include legal Counsel for the hearing.

The problem is that if it goes to a Summary Hearing then you aren't protected against legal costs in the same way that you would be in the Small Claims Track. By allowing the claim to become stayed, and then by applying to lift the stay for a Summary Judgment Hearing, the claimant can circumnavigate the Small Claims Track and hit you for the full costs. During the timeline on which the claim is stayed, the claimants costs will gradually increase. Every email, every phone call, every action will be charged to the defendant.

I have to say that on any claimants part that is a great tactic. It is something that I only became aware of during the process as it was happening. Prior to that I was told not to worry about legal costs.

Regards

[Diana M]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

After three missed payments you would have received a S87(1) DN giving you 28 days to bring the account up to date or have a Default registered against you.
. . . .
The S87(1) DN will have probably been dated around December 2011.

If thedate on the S87(1) DN is on or after 15/11/2011 then it has been served within six years of the date on which legal proceedings began. This will be considered as the Cause of Action, and it will be within the six year time frame and not Statute Barred.

The creditor only needs to produce a reconstituted copy of the S87(1) DN based ontheir “records”

. . . . . because District Judges don’t consider it to be from when the Cause of Action acrrued.

I can't agree with that.

Too many "ifs" and assumptions.

Law is precise albeit arguable in court.

Di

[warwick65]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Hi. Quick comment. If you send a SAR may give you details the debt purchaser doesn't have which could cast doubt on their 'evidence'.
You say they will reconstruct a DN - not always.
There may also be other arguments. [MENTION=110010]Caretaker237[/MENTION], it does seem you were hung out a little either with poor advice.

I do know another forum who are not up to date on legal arguments, hell they still say no signed agreement no claim for pre 2007.
Why not double check with a solicitor about any potential arguments for an appeal, off course get free I I tial advice.

You suffered if you were stung for costs.

[warwick65]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Just to add, I am living proof as to what a dedicated solicitor and in one case barrister can do for you.

[Caretaker237]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Diana, how do you want me to word it?

I stated:

"If the date on the S87(1) DN is on or after 15/11/2011 then it has been served within six years of the date on which legal proceedings began. This will be considered as the Cause of Action, and it will be within the six year time frame and not Statute Barred"

I haven't seen the S87(1) DN, so I don't if it is or if it isn't dated on or after 15/11/2011.

How else should I describe that Diana? What term should I use to replace "if?

With regards to the following:

The S87(1) DN will have probably been dated around December 2011.

Again, I haven't seen the S87(1) DN. It could have theoretically been dated in November 2011 or January 2012. In all probability given the date of default it would have been dated around December 2011 - probably.

How else should I describe that Diana? What term should I use to replace "probably?

You don't have to agree with what I have written Diana, but to suggest that there are "too many "ifs" and assumptions" when in fact you have only highlighted one "if" and one possible assumption based on probability in my entire text; is pedantic on your part to say the least.

If the law in the Civil process was as precise as you suggest, then there would not be the debate and current appeals surrounding the Limitations Act 1980 Section 5, namely what is or what isn't to be considered as the accrual of the Cause of Action.

I think you will find that the balance of probability features heavily in the judgment of many Civil Court claims. Maybe you are confusing the issue with the Crown, and criminal proceedings.

I am only trying to help Carlos based on my own experience in County Court, on this subject matter, less than 15 days ago.

Have you defended a claim in the County Court recently on the grounds that the debt was Statute Barred against Capital One/Cabot?


Regards

[Caretaker237]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Diana, how do you want me to word it?

I stated:

"If the date on the S87(1) DN is on or after 15/11/2011 then it has been served within six years of the date on which legal proceedings began. This will be considered as the Cause of Action, and it will be within the six year time frame and not Statute Barred"

I haven't seen the S87(1) DN, so I don't if it is or if it isn't dated on or after 15/11/2011.

How else should I describe that Diana? What term should I use to replace "if?

With regards to the following:

The S87(1) DN will have probably been dated around December 2011.

Again, I haven't seen the S87(1) DN. It could have theoretically been dated in November 2011 or January 2012. In all probability given the date of default it would have been dated around December 2011 - probably.

How else should I describe that Diana? What term should I use to replace "probably?

You don't have to agree with what I have written Diana, but to suggest that there are "too many "ifs" and assumptions" when in fact you have only highlighted one "if" and one possible assumption based on probability in my entire text; is pedantic on your part to say the least.

If the law in the Civil process was as precise as you suggest, then there would not be the debate and current appeals surrounding the Limitations Act 1980 Section 5, namely what is or what isn't to be considered as the accrual of the Cause of Action.

I think you will find that the balance of probability features heavily in the judgment of many Civil Court claims. Maybe you are confusing the issue with the Crown, and criminal proceedings.

I am only trying to help Carlos based on my own experience in County Court, on this subject matter, less than 15 days ago.

Have you defended a claim in the County Court recently on the grounds that the debt was Statute Barred against Capital One/Cabot?

Regards