Default Date relevance to Statute Barred defence?

[eroberts123]

Hi all,

I have a question I cannot find an absolute answer to, does a default date carry any relevance in accessing the cause of action for a statute barred defence under s.5 Limitations Act?

The reason I ask is that a DCA is chasing me for a credit card debt I apparently owe that was opened back in 8th July 2008 and a default date was entered against me recently (only appeared recently anyway) dated 9th March 2009. The has been no legal action taken at the moment as the account has been entered into dispute whilst they satisfy my CCA request.

I 100% never made any payment to this debt and sent a letter to the DCA agency stating that I have no record of the credit card debt plus seeing as no payment or acknowledgement would have been made means the debt it statute barred anyway.

I received a response saying that the debt is not statute barred as the default date is March 2009.

Now to my knowledge the cause of action accrued when contractual payments were missed not when a default date was entered. So cause of action was e.g August/September 2008 + statute barred 6 years no written contact or payment = August/September 2014 = this debt is statue barred. The debt collector is saying default date March 2009 + 6 years = March 2015 = Statute barred

Who is right? Is there any credible legal guidance for this? Lastly seeing as no payment has ever been made on this account is the default date of 9th March 2009 correct in any case considering the account was apparently opened 8th June?

Thank you!

[nemesis45]

Re: Default Date relevance to Statute Barred defence?

Hi Welcome to LB,

Statute Barred England & Wales (simple contracts.

The clock starts ticking on the date that a contractual payment was due and not made after which no further payment or unequivocal written acknowledgment was ever made.

Which DCA is claiming the default date is correct. (Cabot/Reston by any chance?)

There was an Appeal Court Judgement BMW - v - Hart that decided on hire purchase agreement ( loan secured upon goods) that the default date was the COA.

It is accepted generally now I think the date of the last payment + 1month is the cause of action.

nem

[eroberts123]

Re: Default Date relevance to Statute Barred defence?

Yes its cabot's that claim the default date is the date the 6 year clock starts from.

In my case the debt is statute barred now in my opinion but in cabot's it isnt until early March. Who is right then and how would i back this claim up? I would have thought case law would have this cleared up

When should a default notice be issued as it is 8 months after payment was due before being issued, is this right?

The only reason i ask is because if they respond to my cca tgey may well issue court proceedings if I don't play ball and my concern is it could be a lottery on whether a judge agrees with me or them on definition of cause of action.

I cannot see them allowing the date to pass before starting a claim even if they cant satisfy the cca request prior. At the end of they day if this debt isnt statute barred then only defence is lack of compliance of my cca request.

I am not aware of the details surrounding the debt overall but think its a credit card my ex partner had set up in my name so dont have any idea of the breakdown of it etc.

Little unsure what to do amd suggestions would be appreciated

[Amethyst]

Re: Default Date relevance to Statute Barred defence?

If you didn't make a single payment to the card that you took out in July 2008, when did you use the card to build up the debt ? Straight away? The cause of action would be the point at which they could withdraw the facility and close the account - usually two/three months without payment on credit cards. It depends on the payment terms, some cards have two months before first payment is due.

What kind of card was it ?

[eroberts123]

Re: Default Date relevance to Statute Barred defence?

The debt was built up within a 3 or 4 week spree as i cancelled the card when i realised what was going on. It was just a bog standard credit card. Based on my interpretation of cause of action im 110% the debt is statute barred.

My major concern is that there is no specific guidelines on the definition of cause of action and a judge could accept a default date instead. Am i paranoid or is that a possibility?

I may get lucky and the cca request may distract them and 9th march passes although i highly doubt it. Its been 2 weeks since i sent it so they haven't complied so far, so i don't know what this means. They did reply saying it may take some time and cant give a specific time scale before they can respond.

Bit confused as everything seems so vague and open to interpretation

[Amethyst]

Re: Default Date relevance to Statute Barred defence?

It is, as it depends on the judge, it is 6 years since cause of action and cause of action is the point at which the company could commence action against you for breach of the contract - which depending on the terms of agreement is when you have missed a monthly minimum payment.

If there's been no communication since taking out the card, you used it for 3/4 weeks, and never paid a penny or spoke to them at all, then I think Sept 2008 is quite likely to be accepted as the date for limitations.

The creditor, of course, will argue the default date, as that will be the only date they have on their list of purchased debt. Make a positive assertion that the last time you had any contact with the OC was August 2008 to them and the burden of proof is on their shoulders to disprove it. That the OC chose to keep the card running until March 09 is irrelevant.

You've done the CCA request so if they did find the agreement you'd be able to double check the terms on repayment of the card.

[eroberts123]

Re: Default Date relevance to Statute Barred defence?

It is, as it depends on the judge, it is 6 years since cause of action and cause of action is the point at which the company could commence action against you for breach of the contract - which depending on the terms of agreement is when you have missed a monthly minimum payment.

If there's been no communication since taking out the card, you used it for 3/4 weeks, and never paid a penny or spoke to them at all, then I think Sept 2008 is quite likely to be accepted as the date for limitations.

The creditor, of course, will argue the default date, as that will be the only date they have on their list of purchased debt. Make a positive assertion that the last time you had any contact with the OC was August 2008 to them and the burden of proof is on their shoulders to disprove it. That the OC chose to keep the card running until March 09 is irrelevant.

You've done the CCA request so if they did find the agreement you'd be able to double check the terms on repayment of the card.

You must have seen a fair few of these kind of disputes around default dates, what usually happens?

[nemesis45]

Re: Default Date relevance to Statute Barred defence?

The last case like this I 've seen just before Christmas Cabot withdrew at the last minute, the sent the "morally obliged to pay" begging letter.

nem

[eroberts123]

Re: Default Date relevance to Statute Barred defence?

The last case like this I 've seen just before Christmas Cabot withdrew at the last minute, the sent the "morally obliged to pay" begging letter.

nem

They haven't started any proceedings yet at least. Awaiting cca, presuming the come up with a recon they no doubt will. They probably will start them even without satisfying my cca request as even by their interpretation statute barred is very near. Can they actually do that considering they are now in breach of my cca request and the account is in dispute and on hold by their own letters? Usually it seems from reading these threads on here most people get served with Court papers before sending a cca request at least mine is in before.

I find it odd though how they would waste the time and costs doing so considering the circumstances and my correspondence stating my points. Worst case scenario i have two legitimate defences in cca and statute barred.

[nemesis45]

Re: Default Date relevance to Statute Barred defence?

Yes that's right!
Cabot is constantly " bending " legislation, regulation, guidance to suit it's own purpose!

nem

[eroberts123]

Re: Default Date relevance to Statute Barred defence?

Yes that's right!
Cabot is constantly " bending " legislation, regulation, guidance to suit it's own purpose!

nem

Do I need to send them anything seeing as they have failed to satisfy my CCA request?

Can they commence legal litigation whilst in breach of a CCA request seeing as now by law the debt is unenforceable as they have not responded within 12 days?

How quickly do DCA's take to satisfy a CCA Request as I am hoping it takes them until after the default expires as then by their own admission the debt is statute barred?

I do apologise for the questions, im just trying to understand the situation and possible developments in the next month. I appreciate your advice, thank you!!

[nemesis45]

Re: Default Date relevance to Statute Barred defence?

Hi, Cabot could start a claim, but the debt remains unenforceable until the agreement is produced.
The statutory time scale for the CCA request is 12 + 2 working days, however as we often see Cabot
don't play fair!

nem

[eroberts123]

Re: Default Date relevance to Statute Barred defence?

Hi there,

I have still not received anything in regards to my CCA request or any court papers as of yet, however, I have checked my credit report and Cabot have amended the default date on there to 14/12/2014 from March 2009.

This is totally wrong, please can anybody advise me on what steps I need to take in respect to this as this default was due to fall off in a matter of weeks?

[Nibbler]

Re: Default Date relevance to Statute Barred defence?

Definitely a new original default date, rather than a new "updated" date or a recent D or 8 in the status history?

[nemesis45]

Re: Default Date relevance to Statute Barred defence?

Cabot updated the original entry with its details, manipulating default dates did in the past happen with debt purchasers believing that they could issue a new default on acquiring a debt in belief I think that it then a "New" account.
Please post up a suitably redacted copy of the credit file entry.
This can be easily rectified if need be.
nem