Drydensfairfax claim form statute barred debt!!

[labby1]

I have received a claim from Drydensfairfax Solicitors on behalf of Capquest for an old credit card debt.

I believe it is statute barred for the following reason:

1. The last payment I made was in June 2008
2. The credit card company then took a minimum payment from another account I had. The confirmation was sent in August I do not know what month they allocated it to.

No other payments have been made.

I have never acknowledged this debt.

The claim is dated 18th November.

I am aware that Drydensfairfax may try to say the relevant date is from the date of the default notice which was 21st Jan 2009. However I know that is incorrect as that was not the cause of action. The default notice was issued as a result of the cause of action, ie non payment.

I replied and ackowledged the claim on MCOL, requested 21 days and change of juristriction. I requested the extra time as I thought I would need to write to the claimant for information.

I have all the old statements that clearly show the date of my last payment. The amount they have taken from the other account is not shown on the July or August statement. August is the last statement I have

I think the key is to which month they have allocated it to.

Should I now just submit my defence:

Sec 5, of the Limitations act, 1980 states


"The time limit for actions founded on simple contract.
An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.
This debt has not been acknowledged by myself since June 2008."

Any assistance would be gratefully appreciated

[nemesis45]

Re: Drydensfairfax claim form statute barred debt!!

HI,
Yes Drydensfairfax has used the BMW Finance - v - Hart Appeal Court Judgement to claim that the cause of action on ALL CCA'74 agreements is the default date, however that was in regard to an HP agreement (loan secured upon goods) not on a simple contract such as a CC or unsecured loan.

You must find out about this payment being taken from another account, was this with your knowledge and agreement or was this a " off set" decided purely by the card provider?
Is the card provided by the same company/bank as the payment was taken from.?

[Kafka]

Re: Drydensfairfax claim form statute barred debt!!

Hello and welcome

Can you please explain how the CC co. was able to take payment from another account? Was this done without your permission?

If you have acknowledged the claim within 14 days of the date of service, then you have a further 14 days to submit a defence.
Date if issue (on the form) + 5 days = date of service.
If you ack within 14 days from service then you have a total of 33 days from issue.

[Kafka]

Re: Drydensfairfax claim form statute barred debt!!

Sorry, post crossed with nem's but I think we asked the same questions LOL

[labby1]

Re: Drydensfairfax claim form statute barred debt!!

HI,
Yes Drydensfairfax has used the BMW Finance - v - Hart Appeal Court Judgement to claim that the cause of action on ALL CCA'74 agreements is the default date, however that was in regard to an HP agreement (loan secured upon goods) not on a simple contract such as a CC or unsecured loan.

You must find out about this payment being taken from another account, was this with your knowledge and agreement or was this a " off set" decided purely by the card provider?
Is the card provided by the same company/bank as the payment was taken from.?

The payment was taken without my knowledge or agreement. It was off set by the card holder as I had a savings account with the same bank. They wrote to me to say they have done.

[labby1]

Re: Drydensfairfax claim form statute barred debt!!

Should I send a cpr request and ask for all statements. Even if it was allocated in August 2008, is it not statute barred? From my understanding it would have to have been allocated in Sept 2008 at the latest for me to be in with a chance. If they did that that means they ignored my non payment in July and August

[nemesis45]

Re: Drydensfairfax claim form statute barred debt!!

The difficulty now is the date this payment was made, and if it is possible to argue that it was unauthorised. out of your control and therefore had no effect on the "statute barring" 6 year clock.

[nemesis45]

Re: Drydensfairfax claim form statute barred debt!!

Sorry, post crossed with nem's but I think we asked the same questions LOL

Great Minds n all that:tinysmile_hmm_t2:

[labby1]

Re: Drydensfairfax claim form statute barred debt!!

The difficulty now is the date this payment was made, and if it is possible to argue that it was unauthorised. out of your control and therefore had no effect on the "statute barring" 6 year clock.

Can I ask for all statements cpr request?

Even If they allocated it in Aug 2008, is it not still statute barred

[Kafka]

Re: Drydensfairfax claim form statute barred debt!!

Can I ask for all statements cpr request?

Even If they allocated it in Aug 2008, is it not still statute barred

The CPR request doesn't normally produce all the back statements. The one that does that is the SAR, but that permits 40 days for response, so needs really to be sent when you are threatened with clear legal action, not after it has started. You can send it to the OC with the £10, but you may not get it back in time, unless they can't supply other paperwork and agree to an extension.

Remember that the onus is on them to prove that the debt isn't SB, rather than on you to prove that it is. If I was you I'd challenge any claim by them that the payment they took was a 'cause of action' by yourself.

Has the CCA request gone to the OC?

[nemesis45]

Re: Drydensfairfax claim form statute barred debt!!

Can I ask for all statements cpr request?

Even If they allocated it in Aug 2008, is it not still statute barred

If you are thinking of CPR 31.14, this provides only for the production of "documents mentioned in the particulars of the claim".

Have you made a Subject Access Request to the original creditor? However as the debt has been "sold " to a debt purchaser there is no harm in asking the OC what the date of the offset was.

Crossed again Kaf.

[labby1]

Re: Drydensfairfax claim form statute barred debt!!

If I was you I'd challenge any claim by them that the payment they took was a 'cause of action' by yourself. I don't understand what you mean by this

Has the CCA request gone to the OC

I have not sent one. The last time I asked for one was in 2008 and they sent a reconstructed one

Surely the cause of action would be the last payment received, even if they say it was their payment, that will have been in aug 2008. How can I find out??

[labby1]

Re: Drydensfairfax claim form statute barred debt!!

sorry to be thick but what is OC

[nemesis45]

Re: Drydensfairfax claim form statute barred debt!!

Original Creditor>

[Kafka]

Re: Drydensfairfax claim form statute barred debt!!

If I was you I'd challenge any claim by them that the payment they took was a 'cause of action' by yourself. I don't understand what you mean by this

Has the CCA request gone to the OC

I have not sent one. The last time I asked for one was in 2008 and they sent a reconstructed one

Surely the cause of action would be the last payment received, even if they say it was their payment, that will have been in aug 2008. How can I find out??

A CCA request sent in 2008 was presumably to the OC and can't be used against the current owner, so that needs to go off urgently.

Regarding the 'cause of action' they have to prove one within the 6 year period prior to them filing the claim. That can be a payment by you, a formal acknowledgement of the debt by you, or sometimes a CoA can be a few months after a payment. For example, if you just stop paying, then they can't reasonably know that until several payments are missed, so a creditor could argue that the cause of action only came in some months after a last payment.

The dates are critical here as this has clearly been filed because the 6 years was ending. I suspect that they will argue that the payment they too was a payment, but for Limitation purposes it needs to be a payment by you. I would argue that them transferring money without your knowledge or express permission does not constitute a CoA by you.