Brian Carter solicitors LLP

**FlamingParrot** · 28th November 2014, 23:51:PM

Re: Brian Carter solicitors LLP

Hi and welcome

Sorry to have missed your post yesterday.

Originally posted by Nbt24 View Post

I just wanted to get some advice, I recieved a claim form from Northampton county court today at an old address for a debt of £942+ costs from a current account that had an overdraft the debt was passed from lloyds tsb to Lowell portfolio 04/07/2013 and they are taking me to court to recover the debt.

I have viewed my credit report and it shows that the date of default was 17/06/2009 I do not think this is correct as I had other debts that I defaulted on at the same time that have all been statue barred and been removed from my credit report last year.

Default dates on credit files do not determine whether a debt is statute barred or not. You say you stopped paying into this current account at the same time as the others that dropped off last year, so presumably you stopped paying in 2007, is that correct?

The thing with overdrafts is that, unlike loans and cards, there are no set payment dates, so the cause of action is not as clear cut. The bank may wait a few months before deciding you are no longer going to be paying into the account and recalling the overdraft, meaning it would take a bit longer for this account to go SBd. Having said that, if you didn't pay into the account since 2007, then it should be SBd. :thumb:

Originally posted by Nbt24 View Post

i am not to sure how to proceed as I only have 14 days to respond to the court and I'm not sure how much time Lowell have to send me proof that they have had contact or payment from me in the last 6 years and that the debt is still within that time limit.

You have 14 days to acknowledge and state your intention to defend in full, you then get a further 14 days to submit a defence, plus 5 days allowed for service, a total of 33 days from date on claim. :clock:

If you submit a SBd defence, the onus would be on THEM to PROVE that it isn't :thumb:

Originally posted by Nbt24 View Post

my questions are if they fail to provide proof that the debt is not statue barred then will the court dismiss the claim?

You have to submit a SBd defence. Once you do that the court will send it to the claimants who have 28 days to state whether they wish to proceed with the claim or not. They may discontinue at that point.

ray:

Originally posted by Nbt24 View Post

If they do prove that they are within the 6 years will they accept an arrangement with me so I can avoid getting a CCJ??

Normally, yes, but what sort of proof could there be if you haven't paid into the account?
An example SBd defence can be found here: http://www.legalbeagles.info/forums/...010#post496010

**Nbt24** · 1st December 2014, 21:01:PM

Re: Brian Carter solicitors LLP

hi,

Thanks for the welcome and all of your advice,

I have been looking at older copies of my credit reports and I am sure that I defaulted on all of my accounts in the summer of 2007, all other credit cards and loans have gone from my current credit report but the current account with the overdraft still remains and shows that the default date was June 2009, after reading your advice I am now aware that does not determine that a debt is statue barred however how do they determine the "cause of action"? could a Lloyds actually wait more than a year before recalling the overdraft?

I am going to post the papers back to the courts tomorrow with a defence of the debt being statue barred using the link you provided for the wording although im not 100% of the actual month I do know the year was 2007.

im hoping Lowell are just trying their luck and that will be the end of it!!

once again many thanks for the sound advice

thanks

nick

**FlamingParrot** · 2nd December 2014, 00:05:AM

Re: Brian Carter solicitors LLP

Originally posted by Nbt24 View Post

I have been looking at older copies of my credit reports and I am sure that I defaulted on all of my accounts in the summer of 2007, all other credit cards and loans have gone from my current credit report but the current account with the overdraft still remains and shows that the default date was June 2009, after reading your advice I am now aware that does not determine that a debt is statue barred however how do they determine the "cause of action"? could a Lloyds actually wait more than a year before recalling the overdraft?

I've just posted about this same issue on another thread, see below:

Originally posted by FlamingParrot View Post

An O/D would be trickier to defend, not least because the cause of action for SBd is not as clear cut as with accounts with a set payment date such as cards, loans, HP, etc. where the cause of action would be right after you first miss a payment. With an O/D, the bank would have no way of knowing whether you will be making further payments into the current account or not, and it would be a few months before they decide to recall the O/D which would be when the CoA starts to run.

With small O/D like this, they may not recall for a long time, for example I have a business account with Barclays I did not use for a couple of years, it didn't have an arranged O/D but they were applying fees and charges and it went into the red until I started using it again, around a year later. Barclays never recalled the O/D which went up to around £350 and I'm still using the account. Yours may have been a similar case and, unless you've not paid into this account since 2007 or earlier, I think you'd probably struggle with the SBd argument.

Originally posted by Nbt24 View Post

I am going to post the papers back to the courts tomorrow with a defence of the debt being statue barred using the link you provided for the wording although im not 100% of the actual month I do know the year was 2007.

im hoping Lowell are just trying their luck and that will be the end of it!!

They will have to provide evidence that it isn't SBd if they want to continue with the claim after receiving your SBd defence so let's hope for the best.

ray:

Brian Carter solicitors LLP