Claim received - statute barred or other defence??

[Kafka]

Re: Claim received - statute barred or other defence??

Hi, many thanks for the replies. Sharon I will try to deal with your questions in order.

The debt MAY be SB but I'm not sure. I intend to ask for a copy of CCA in order that they prove the debt is mine - can i do that as part of the SAR, do it seperately or is there little point in doing it all??

If the debt is for a bank account then the CCA does not apply.

The claim is for £5,802 plus costs. From memory the o/d facility was around £5k i think so £800 odd would be charges. It was a joint platinum current account. We originally planned to repay via a DMP and so LLoyds were only made aware at that point (ie we didn't advise them prior to that the account would no longer be funded/used for salaries etc).

The particulars of claim are brief and as follows:

1. The claim is for the sum of £5,802.96 in respect of monies owed by the defendant on a credit agreement held by the defendant with LLoyds Banking Group under account number.... upon which the the defendant failed to maintain payments

2. A default notice was served upon the defendant and has not been complied with.

3. By virtue of a sale agreement between Lloyds Banking Group and the claimant the claim vested in the claimant who has the genuine commercial interest. The defendant has been notified of the assignment by letter.

I could POTENTIALLY offer a full and final on this but it would not likely be able to exceed 20-30% - what would be my chances to do think? Should I tie them up in requests as much as possible to start with? They may then not see me as an easy target and be less likely to agree perhaps? I am not sure of the tactics of Drydens - I can find lots of info on Lowell/Bryan Carter et al, but not so much on these guys..

Thank you so much for all your help so far x

As the claim has already been filed you are less likely to get favourable terms for settlement. You might have been able to negotiate before, but now I suspect that would not work.

The SB defence sounds tight, and it's likely that they have filed this now to catch you within the 6 years. The last date of payment or acknowledgement is critical so send SAR to Lloyds asap, with no need to tell the claimant. You might also chase the bank because that date is critical to SB defence.

In truth, you have fewer options for bank accounts because they don't fall under the CCA meaning you can't challenge the agreement, plus you can't counterclaim for charges on a bank account as you can for regulated agreements.

If you haven't done so you should immediately send a CPR request for disclosure, sent to the issuing solicitor. You can ask for sight of documents referred to in the POC and these seem to be:
1) The credit agreement as they call it that, even though its not a regulated account.
2) the Default Notice.
3) The Notice of Assignment.

Can you also confirm if you received a formal Letter before Action threatening legal action and at least 14 days before they filed?

In honestly you may struggle here unless you can prove a SB defence, which isn't clear.

[beaglelover]

Re: Claim received - statute barred or other defence??

Yes I received a letter on 9 September which was the first I had heard from them, so they have been pretty quick off the mark with issuing, but it is dated 24 September so looks like within correct timescales? I'm wondering why they chose me rather than my husband to pursue - i'm a student with no income so any offer I make to pay will be VERY small, which may help with a full and final (money in the hand and all that).

However, how do I negotiate without acknowledging the debt? Am I not in a chicken and egg situation here?

In the meantime I will make the suggested requests for information and see how we go. If they are not able to supply any of said documents, does that help me?

[Kafka]

Re: Claim received - statute barred or other defence??

Yes I received a letter on 9 September which was the first I had heard from them, so they have been pretty quick off the mark with issuing, but it is dated 24 September so looks like within correct timescales? I'm wondering why they chose me rather than my husband to pursue - i'm a student with no income so any offer I make to pay will be VERY small, which may help with a full and final (money in the hand and all that).

If its a joint account you may wonder. What will perhaps be in your favour is that any agreement with the court to pay - if it gets to that - will mean that repayments would be set according to your income level, so could be very low if that's all the court deems that you can afford. Maybe a token payment.

However, how do I negotiate without acknowledging the debt? Am I not in a chicken and egg situation here?

Yes maybe, but see what they send for CPR request first. its highly unlikely that they will have any of the paperwork referred to although this is a legal requirement, so they will have to delay while they send for it, or more likely, write and say that they don't need to follow the court rules. That all helps your defence with their non compliance.

In the meantime I will make the suggested requests for information and see how we go. If they are not able to supply any of said documents, does that help me?

Probably not as much as usual, because the big one is the credit agreement, but that doesn't apply in this case. When they can't provide a valid copy under the CCA that can often get a claim dismissed, but you don't have that option.
Interestingly they refer to a credit agreement in the POC, so the court will think that this is a claim on a regulated account. We may be able to use that to advantage (because there is no credit agreement as such), but flaws with default and assignment aren't usually sufficient to stop a claim on their own.

....

[beaglelover]

Re: Claim received - statute barred or other defence??

Thank you so much for the replies so far. I am drafting a letter as we speak..I'm getting a bit confused though.. should I go straight in and write to them saying I believe it is statute barred and asking them to prove otherwise?? Or send the CPR request? Or do both?? I'm thinking that I if i ask them to prove that I have made payments, the info might be gained quicker than if I put in a request to LLoyds myself? And if they don't reply to me before I need to file my defence I can use that in my (stat barred) defence? Thanks again. x

[beaglelover]

Re: Claim received - statute barred or other defence??

Hello, I have heard back from Drydens Solicitors to the effect that they cannot currently comply with my CPR request and have referred my request to their client. ie; Capquest. They advise that the case is "on hold" until such time as they are able to comply.. The letter doesn't mention anything about a 28 day extension. I would ordinarily have to submit my defence on or before 25 October (or I guess 24 October as 25th is a Saturday). Should I do this or should I make a request for an order on the basis that they have not supplied the documents? I'm not quite sure where to go from here and hoping for a little advice.. Many thanks

[Kafka]

Re: Claim received - statute barred or other defence??

Did you send the SAR as advised on post #11?
If that shows its statute barred then you can submit a defence on that basis alone.

[beaglelover]

Re: Claim received - statute barred or other defence??

Did you send the SAR as advised on post #11?
If that shows its statute barred then you can submit a defence on that basis alone.

Hi, no I didn't because I found some paperwork indicating that I had made some payments on the account within the last six years so didn't think it was worth going down that road, as it clearly isn't going to be barred...

[Kafka]

Re: Claim received - statute barred or other defence??

Hi, no I didn't because I found some paperwork indicating that I had made some payments on the account within the last six years so didn't think it was worth going down that road, as it clearly isn't going to be barred...

It would still have been worth doing because the SAR will show you what the OC has for agreement and so on, which is all that the new owner can get hold of. Additional things are finding out about the default and assignment processes, as well as what charges have been added on.

[FlamingParrot]

Re: Claim received - statute barred or other defence??

It would still have been worth doing because the SAR will show you what the OC has for agreement and so on, which is all that the new owner can get hold of. Additional things are finding out about the default and assignment processes, as well as what charges have been added on.

Unfortunately they have 40 days to respond to a SAR, so even with a 28 day extension, time would be short, unless they responded to the SAR before the allowed timeframe. :clock:

Hello, I have heard back from Drydens Solicitors to the effect that they cannot currently comply with my CPR request and have referred my request to their client. ie; Capquest. They advise that the case is "on hold" until such time as they are able to comply.. The letter doesn't mention anything about a 28 day extension. I would ordinarily have to submit my defence on or before 25 October (or I guess 24 October as 25th is a Saturday). Should I do this or should I make a request for an order on the basis that they have not supplied the documents? I'm not quite sure where to go from here and hoping for a little advice.. Many thanks

As they are saying the case is 'on hold', I'd suggest picking up the phone and asking them whether they can send you an email stating that they agree to a 28 day extension as allowed by CPR 15.5 so you can forward it to the court. I'd say you should try this before considering an unless order. If they are happy to put the case on hold, they should be happy to confirm that fact in the proper way, i.e. agreeing to an extension. :thumb:

[FlamingParrot]

Re: Claim received - statute barred or other defence??

Hi, no I didn't because I found some paperwork indicating that I had made some payments on the account within the last six years so didn't think it was worth going down that road, as it clearly isn't going to be barred...

Have you got any other arguments to dispute this account? Did they respond to your CCA request?

[beaglelover]

Re: Claim received - statute barred or other defence??

Hi Parrott, thanks for for the advice. I will ring them today and ask them to confirm that they agree to a 28 day extension so that I can advise the Court as you suggest. CCA doesn't apply as it is an overdraft but to be honest I don't think they know that. They just refer to "an agreement" and "failure to maintain payments". I'd be surprised if Capquest are aware of what the original account was for either or I would have thought it would have been correctly in the particulars of claim? What happens if I don't hear anything after another 28 days? Do I at that point ask the Court to make an order to strike it out? Perhaps I should also still send the SAR request, I guess it won't do any harm?? Thanks again (sorry I've not been back to reply sooner but had a couple of hectic days at Uni..)

[FlamingParrot]

Re: Claim received - statute barred or other defence??

Yes, definitelly ask theem to agree to a 28 day extension, that woud be because the've not complied with the CPR request, they still have to supply documents even if not a credit agreement.

You can still send the SAR if you don't mind paying £10 plus postage, bearing in mind if they do supply the docs you'll have to submit a defence before you receive it. :typing:

[beaglelover]

Re: Claim received - statute barred or other defence??

Yes, definitelly ask theem to agree to a 28 day extension, that woud be because the've not complied with the CPR request, they still have to supply documents even if not a credit agreement.

You can still send the SAR if you don't mind paying £10 plus postage, bearing in mind if they do supply the docs you'll have to submit a defence before you receive it. :typing:

I don't mind paying the £10 but I'm still not entirely sure what I will gain from the request? I have rung them this morning and emailed them to ask for confirmation of the extension.

How do I actually advise the Court? I've been using the moneyclaim online service thus far - can I do it through that? And then what do I do if I don't hear within the next 28 days? Sorry for all the questions...

[beaglelover]

Re: Claim received - statute barred or other defence??

Further to above post - I presume I need to do something before my 28 days to enter my defence is up or the Court will simply enter judgement in default, won't they??

[beaglelover]

Re: Claim received - statute barred or other defence??

Just bumping for a bit of advice on what I should say to the Court and how I should do it (in terms of Drydens agreeing a 28 day extension, although I'm still waiting for that in writing).. TIA