Defense to Statute barred debt

[curlywurly]

Re: Defense to Statute barred debt

Hiya,

Thanks very much for all the feedback. I have returned to N180,. The last payment was 19th February 2009. The first missed payment was 21st March 2009 which shows as a direct debit reversal on the statement of account they have sent me on 24th March 2009. The claim date is 4th April 2015. Is it a black and white situation with Sbd, or because this is a close one will the courts take a different view? Many thanks for your help

[nemesis45]

Re: Defense to Statute barred debt

Hiya,

Thanks very much for all the feedback. I have returned to N180,. The last payment was 19th February 2009. The first missed payment was 21st March 2009 which shows as a direct debit reversal on the statement of account they have sent me on 24th March 2009. The claim date is 4th April 2015. Is it a black and white situation with Sbd, or because this is a close one will the courts take a different view? Many thanks for your help

Hi,

For clarification.

Statute Barred England & Wales = 6 clear years with no payments or unequivocal written acknowledgment of the debt.

For a credit card the 6 year clock starts ticking on the date a contractual payment was due and Not paid after which no further payment or written acknowledgement was ever made.

For Current Accounts / overdrafts the date when the creditor can first demand immediate payment in full i.e. The date that the creditor issues a Demand/Final Demand for repayment in full.

Fixed term loans the date the creditor 1 month after the last payment made, but it is argued that an Appeal Court Judgement in
BMW - v - Hart established that the default date was when the relevant 6 year period started, this however was in regard to an HP debt. Some debt purchasers are trying to use this on all loan products.

Which one fits your case?

nem

[jon1965]

Re: Defense to Statute barred debt

I have read a thread on another site in which Bryan Carter are claiming that limitations start when the account fell into default although it is not exactly clear how they reached the date, if I find out more I will let you know.

Good luck

[curlywurly]

Re: Defense to HStatute barred debt

I have read a thread on another site in which Bryan Carter are claiming that limitations start when the account fell into default although it is not exactly clear how they reached the date, if I find out more I will let you know.

Good luck

Hi, it is a credit card account. Cheers

[nemesis45]

Re: Defense to HStatute barred debt

Hi, it is a credit card account. Cheers

Hi what's the default date on the account?
This a very close call for SB there are some debt purchasers attempting to claim that the default date is the start of the relevant 6 year period.


nem

[jon1965]

Re: Defense to Statute barred debt

If you have a copy of terms and conditions it is worth reading them , it seems contracts can vary however you might as well try the SB defence. Hopefully there are other defences as well, non compliance to a S78 request, bad DN things like that

[curlywurly]

Re: Defense to Statute barred debt

Hi,

I have received a court date for this claim and today received a reply to the defense which is stating sec 88 of CCA 1974 as the basis for the default notice verifying a breach of agreement or course of action. Is this correct as i though for credit card agreements it was the date of last payment that was used as a the course of action date? Has anyone got any experience of whether this will be successful in court or whether there is a valid challenge. Can anyone advise of any specialist who would be able to defend this claim for me. Also, am i able to respond to the 'reply to defence' before the court date. There are some irregularities in their statement, they have got both date of default wrong and date of last payment wrong. Thanks for any advice.

[FlamingParrot]

Re: Defense to Statute barred debt

Hi,

I have received a court date for this claim and today received a reply to the defense which is stating sec 88 of CCA 1974 as the basis for the default notice verifying a breach of agreement or course of action. Is this correct as i though for credit card agreements it was the date of last payment that was used as a the course of action date?

The date the last payment was made cannot be the cause of action because the creditor would have no cause to take any action when you've just made a contractual payment, they would have no way of knowing you won't be making any further payments at that point, so the CoA would have to be at least one month after the date of last payment or when you first miss a minimum payment.

Has anyone got any experience of whether this will be successful in court or whether there is a valid challenge.

It all depends on the judge. :noidea: Sadly there was a recent case where the judge decided to rule that the cause of action was when the default notice was issued. :mmph: It was a county court judgment which does not set precedent and it's in the process of being appealed.

Can anyone advise of any specialist who would be able to defend this claim for me. Also, am i able to respond to the 'reply to defence' before the court date. There are some irregularities in their statement, they have got both date of default wrong and date of last payment wrong. Thanks for any advice.

I can tell you who is looking into the appeal mentioned above, however, I can't make any promises.

[curlywurly]

Re: Defense to Statute barred debt

Hi, Thanks so much for the reply, if you could let me know who is dealing with the appeal or recommend any other credit act solicitors I would be really grateful. Also, the claimants reply to my defended has some incorrect statements in. Am I able to reply to it before the court date? Finally do you have any examples of cases won on 1st missed payment date being cause of action that I can reference? Thanks so much for your help.

[FlamingParrot]

Re: Defense to Statute barred debt

Hi, Thanks so much for the reply, if you could let me know who is dealing with the appeal or recommend any other credit act solicitors I would be really grateful.

Also, the claimants reply to my defended has some incorrect statements in. Am I able to reply to it before the court date?

Could you refresh our memories and post up what their arguments were?

Finally do you have any examples of cases won on 1st missed payment date being cause of action that I can reference? Thanks so much for your help.

I don't think there's any case law that establishes that the date of first missed payment is the cause of action, if there was the judge in the case we're discussing here couldn't have ruled the way he did, not if there was precedent saying otherwise.

[Nibbler]

Re: Defense to Statute barred debt

I don't think there's any case law that establishes that the date of first missed payment is the cause of action, if there was the judge in the case we're discussing here couldn't have ruled the way he did, not if there was precedent saying otherwise.

Quoting HLoE

Apart from any special provision , a cause of action normally accrues when there is in existence a person
who can sue and another who can be sued, and when there are present all the facts which are material to
be proved to entitle the claimant to succeed.

[FlamingParrot]

Re: Defense to Statute barred debt

Apart from any special provision , a cause of action normally accrues when there is in existence a person
who can sue and another who can be sued, and when there are present all the facts which are material to
be proved to entitle the claimant to succeed.

That's as specific as saying "any time between New Year's Day and Christmas Day"! :lol:

If I was meant to make a payment under a contract today and I don't make it, would ANY creditor issue a claim tomorrow?

[Nibbler]

Re: Defense to Statute barred debt

No, but that does not prevent time starting to run at that point.

Up to 6 years is plenty of time to try to sort things after all.

So a small amount of time running where in most cases a claim won't be made is worth that slight oddness in order to have a fairly simple starting point.

[FlamingParrot]

Re: Defense to Statute barred debt

No, but that does not prevent time starting to run at that point.

Up to 6 years is plenty of time to try to sort things after all.

So a small amount of time running where in most cases a claim won't be made is worth that slight oddness in order to have a fairly simple starting point.

I fully concur, if only the judges also agreed with this... ray: