Strict Proof for a Staute Barred Debt Payment

[TalbotWoods]

Hi all

Looking for a bit advice, it is not straight forward, but please bear with me

This is for a defence against a potential CCJ for a CCA claim dating back to 2005, last payment was made 2005, and there has never been a written acknowledged

All normal stpes covered, yes oddly there is a correct CCA, etc. (Hmmmm, very similar signature after all this time, but we'll leave that for now)

However, this debt is most DEFINITELY statute barred under section 5, but the client has received a letter from the solicitors AND the DCA informing that a payment was made in 2011, an out of the blue single payment for £10. Oddly both replies were in the same envelope.

Now the client could NOT have made the payment, he was (and still is) a single man who at that time of the alleged payment was detained in a HMP. He was incarcerated for 7 and a bit years, and this is why we can be certain that the debt is barred, he could not have physically made the payment himself, and as he has no family or representatives, so no one could have made it on his behalf!

Soooooooooooo………..

Looking for the correct wording to fire back at claimant on his defence, along the line that as he can prove to the court he could not have paid anything, and as the solicitor is adamant he did, he wants to put the solicitor under strict obligation for provide absolute proof to the court.

So how the hell do you put on a defence that he wishes to challenge the Solicitor and DCA and put them under ‘strict proof’ to produce their evidence of payment received? What law applies, what anything applies?

He does not want to show his hand yet, as he is looking at catching the solicitors out in his local court. He fully knows the risks but because of all his past he isn’t worried, but to quote him he just wants the chance to ‘stick it to the man’. Oddly I agree in this case

I’ve told him I would seek advice, and agreed to keep the name of the solicitors out of it, his is OK with this.

Unfortunately on our system there is nothing showing that can help with wording, and I know if I refer it, it may take up to two weeks to get a reply. Noting in CPAG and cant find anything on IMA?

The solicitors is WELL known for finding payments, so in this instance he has a massive chance to hit them back, right in the …………..

Ta Muchly in advance

Tim

[Amethyst]

Re: Strict Proof for a Staute Barred Debt Payment

Hey Tim.

Sorry for lateness of response.

Does the 'client' have copies of bank statements covering the period when the 'solicitors' say the payment was made? Obviously he has evidence of his incarceration, I don't really know how dealing with finances is handled when in prison though so whether that he was in prison at the time of payment is enough evidence that he could not have made the payment.


Has a defence been entered at all or is this the initial defence you need help with ?

[Amethyst]

Re: Strict Proof for a Staute Barred Debt Payment

So if an initial defence, then thinking briefly something thus;



1: The Defendant contends that the claim is for a debt founded on a simple contract and has not been acknowledged or any payment made for at least 6 years. The claimant is therefore barred from enforcing the debt pursuant to section 5 of the limitations act 1980.

2. The Defendant believes the last acknowledgment of, or payment of this debt was in 2005.

3. The Claimants contends that a single payment of £10 was made in xxxxx 2011. This is denied by the Defendant and the Claimant is put to strict proof of this payment, and the method by which this payment was made.

4. The Defendant denies the Claimant is entitled to the relief as claimed or at all.



Now presumably he doesn't want to tell the solicitors/dca of the absolute evidence that he did not make any payment so he can embarass them in court? (which would be lovely as they are WELL known for this) But if he doesn't and doesn't want to take the risk of getting a 'hate all debtors and hate all people who've ever been in prison' mode then he can provide the evidence within his defence. someting like....

4. The Defendant contends he could not have made the payment as he was residing at HMP xxxxxxxxxxxxx from xxxxxxxx 2005 to xxxxxxxxxx 2012 and had no contact from the original creditor or the claimant during that period.

5. The Defendant has copies of all his banking statements from xxxxxxxxx and there is no matching entry for the alleged payment.

[Nibbler]

Re: Strict Proof for a Staute Barred Debt Payment

Sadly, I expect the usual will happen should BC/Lowells be caught out in the lie. It will be an admin error... they will have mixed up payment histories of 2 accounts... they will have had the wrong information from the original creditor... or some other excuse that makes it look like an honest mistake, that is next to impossible to disprove. They know that 99.99% of the time they will get away with it or at least excuse it away. Is why they try this tactic so frequently now.

[Crazy council]

Re: Strict Proof for a Staute Barred Debt Payment

[MENTION=6]Amethyst[/MENTION] ... quite a few of the threads on debt on here claim theses odd payments to jump statute bard regs.

Am thinking, why would it not be fraud from the claimant. the 2007 fraud update gives some specific example. The one in particular for these, making or serving a document to be used at court or part of a money claim.

It may make sence to ask all that have posted that have contended a payment being on there file, to make a joint complaint to one of the regulators.

Just my musings.... I probably dont know what am on about and dont normal comment on debt threads because i dont understand the processes well enough to advise anyone

[Crazy council]

Re: Strict Proof for a Staute Barred Debt Payment

SECTION 2 http://www.cps.gov.uk/legal/d_to_g/fraud_act/#a07

OR SECTION 7 http://www.cps.gov.uk/legal/d_to_g/fraud_act/#a13

[TalbotWoods]

Re: Strict Proof for a Staute Barred Debt Payment

Hi All

Thanks for the input so far, eveyone.

For Amethyst

Thanks for the wording, especially para 3 and 4.

However, I think he would prefer not to mention why at this stage, thus opening the way for the Solicitor to go to court and then be shown as miss-informing the court. He is very aware that if he says why on the defence now, that the Solicitors would withdraw now, come to that anyone with even a gramme of sense would!

I think he is looking for a defence that leaves that bit out for now, but allows it to be brought verbally up in court, something along the lines of

"The Defendant contends he could not have made the payment as he had no contact from the original creditor or the claimant during that period, ....... ".

He really want his day in court with as he has put it the chance to stick it to the man, besides I don't think it is about hating all who have been in prison, I think it more about a case of he can prove beyond doubt that he could not have made the payment

Now you see where a lot of the confusion is coming from, and I am still stuck as to how word the final bit.

He didn't have a bank account at the time, it was closed down by the bank at an early stage, so the payment would have had to have been made by some other means. (Kind of hoping they do say it was a bank payment though!)

For Nibbler

Not BC or Lowells this time, more the shame.

But I think he is hoping that if they are given enough rope, they will hang themselves. Remember they he has already had a letter from BOTH the DCA and the Solicitors saying that the payment was made, if they are still adamant in court and they can be shown to be 'incorrect' then it 'may' show that this was more than a mistake, as they would have had at least three times to double check and were under strict proof on the last one.

And that would be worth a nice claimant to the FCA! (My thought not his)

For Crazy council

I think if it can be shown in a court that they fabricated under strict proof, then there may well be a case for a formal complaint for fraud espcially under Section 2, always like "False Instrument", much easier the complain on that one, than on Section 7. Simply as & requires a named person, Section 2 can be a named organisation! But the FCA would run with that!

Many thanks

Tim

[Nibbler]

Re: Strict Proof for a Staute Barred Debt Payment

Not BC or Lowells this time, more the shame.

Teach me to assume the usual suspects for this behaviour then... lol

I would love to see whoever this is get their comeuppance, as this practice has been bugging me recently. It's use seems to be growing. And by that I mean at the court stage, whereas until relatively recently companies tended to crawl away if you called their bluff.

[righty]

Re: Strict Proof for a Staute Barred Debt Payment

I suggest using Ame's wording putting them to strict proof. Leave your "i was incarcerated" defense until the hearing just make sure he has evidence of his incarceration he's able to produce in court.
As for the bank account if he didn't have one does he have any correspondence confirming that his was closed by the bank if so produce it
If they claim in court another method of payment was used again put them to strict proof. They may try this knowing you cannot prove a negative. The court should understand this & treat their argument with the contempt it deserves

[Amethyst]

Re: Strict Proof for a Staute Barred Debt Payment

Sadly, I expect the usual will happen should BC/Lowells be caught out in the lie. It will be an admin error... they will have mixed up payment histories of 2 accounts... they will have had the wrong information from the original creditor... or some other excuse that makes it look like an honest mistake, that is next to impossible to disprove. They know that 99.99% of the time they will get away with it or at least excuse it away. Is why they try this tactic so frequently now.

Completely agree and sadly we see the court think the shoddy invented print out is absolute evidence and go against the defendant, hence trying to get people to get together bank statements covering the period the alleged payment is made, as at least then the defendant can say, how was the payment made, if they say bank, the statements can evidence it wasn't. It needs sorting as they get away with too many 'oopsy's' - if we can get together evidence of cases or get people who have been affected to complain about it. FCA seem the only way to go as SRA won't take complaints against solicitors unless you were their client.

Also an issue is post judgment, if you have been ordered instalments, and the claimant want a charging order, don't put it beyond them to pretend you missed an instalment payment to get it.

[Amethyst]

Re: Strict Proof for a Staute Barred Debt Payment

Also, because we know they get away with it in court too much, I'd have to say, unless he really wants a fight, then putting in the evidence at defence stage is a good idea. Completely understand wanting to stick it up 'em in court, but reasonable advice would be to put all the details in the defence so they either drop out, or demonstrate where the payment came from before the next stage, so you can be forearmed and prepare your argument against their new story.

[FlamingParrot]

Re: Strict Proof for a Staute Barred Debt Payment

Does the 'client' have copies of bank statements covering the period when the 'solicitors' say the payment was made? Obviously he has evidence of his incarceration, I don't really know how dealing with finances is handled when in prison though so whether that he was in prison at the time of payment is enough evidence that he could not have made the payment.

I wouldn't think so since payments could still be made by someone else acting on your behalf, for example, you could ask your OH to make a payment. I very much doubt this would have been the case here and there are many examples of DCAs inventing phantom payments, however, merely showing you were in prison doesn't prove that you couldn't have made the payment. In view of this fact as well as widespread prejudice against people convicted of criminal offences, I'd say it's probably best to leave this it out. It would be useful if they were trying to prove they couldn't have been responsible for, say, a credit card transaction, since they couldn't have gone shopping while imprisoned, but the imprisonment wouldn't prove the payment couldn't have been made.

[FlamingParrot]

Re: Strict Proof for a Staute Barred Debt Payment

Completely agree and sadly we see the court think the shoddy invented print out is absolute evidence and go against the defendant, hence trying to get people to get together bank statements covering the period the alleged payment is made, as at least then the defendant can say, how was the payment made, if they say bank, the statements can evidence it wasn't. It needs sorting as they get away with too many 'oopsy's' - if we can get together evidence of cases or get people who have been affected to complain about it. FCA seem the only way to go as SRA won't take complaints against solicitors unless you were their client.

Actually that's the other way round, if you want to complain about a solicitor you've been using as a client, then you'd have to complain to the Legal Ombudsman, however, you CAN report solicitors to the SRA if you think they are acting in breach of the SRA principles: http://www.sra.org.uk/consumers/prob...solicitor.page

When you should report a solicitor to the SRA

We deal with cases where firms or those we regulate have breached the SRA Principles. Most of the time, complaints about solicitors are about poor service, and therefore should be sent to the Legal Ombudsman. If the Legal Ombudsman thinks your case involves a breach of our Principles, they will refer your case to us. Likewise, if you report a solicitor to us for poor service, we will refer you to the Legal Ombudsman; read our Memorandum of understanding (PDF, 3 pages, 66K) for more information on this arrangement. We do not have the power to award compensation for poor service, or to reduce or refund your legal fees.
However, you should report the matter directly to us if you think a firm or anyone regulated by us has breached an SRA Principle.

Also an issue is post judgment, if you have been ordered instalments, and the claimant want a charging order, don't put it beyond them to pretend you missed an instalment payment to get it.

Sadly, if the judgment was made on or after October 1st 2012, the creditor can still secure the debt with a charging order even if you don't miss any installments. :mad2: :mad2:

[Amethyst]

Re: Strict Proof for a Staute Barred Debt Payment

I wouldn't think so since payments could still be made by someone else acting on your behalf, for example, you could ask your OH to make a payment. I very much doubt this would have been the case here and there are many examples of DCAs inventing phantom payments, however, merely showing you were in prison doesn't prove that you couldn't have made the payment. In view of this fact as well as widespread prejudice against people convicted of criminal offences, I'd say it's probably best to leave this it out. It would be useful if they were trying to prove they couldn't have been responsible for, say, a credit card transaction, since they couldn't have gone shopping while imprisoned, but the imprisonment wouldn't prove the payment couldn't have been made.

Thanks FP that's basically what I was thinking, it doesn't feel like an absolute evidence. If someone made a payment on your behalf (without your instruction or knowledge) though would that still count for limitations ? (can't believe I don't actually know that).

[Amethyst]

Re: Strict Proof for a Staute Barred Debt Payment

Sadly, if the judgment was made on or after October 1st 2012, the creditor can still secure the debt with a charging order even if you don't miss any installments. :mad2: :mad2:

lol, I'm having a great night aren't I