Statute Barred Credit Card Debt Cause of Action

[celo]

Hello all,

I have been advised that the cause of action for credit card debt is the last payment. I can't seem to find a statute or precedent that one can adduce in court. Why do the web-sites and debt advisors claim the cause of action is last payment when it does not seem to be documented anywhere?

Thanks for your help!

[Caretaker237]

Re: Statute Barred Credit Card Debt Cause of Action

For reference it is The Limitations Act 1980 Section 5 that refers to the six year limitation period from the Cause of Action. Unfortunately there is no clear definition as to when the Cause of Action would accrue.

One possible consideration had always been from the date of the last missed payment, not the date on which the last payment was made.

However, District Judges are now going off the date on the S87(1) Default Notice as the Cause of Action. They aren't considering the last missed payment to be the date of accrual for the Cause of Action.

The S87(1) Default Notice is the letter which a creditor would send out usually after 3 to 6 missed payments, giving the debtor usually 14 or 28 days to remedy the debt and bring the payments up to date. The notice would also describe the resulting action should you fail to comply. This would be a registered default on the debtors credit report usually followed by legal proceedings for the whole amount owed. So the date in question is from the date on such a letter/notice plus the time allowed for remedy. This is not to be confused with the date on which a default was entered onto a credit report.

If your default notice "S87(1) DN" was sent out within six years of the date on which legal proceedings began, then the Statute Barred defence is likely to fail even if the last missed payment was outside of the six year limitation period. Not definite, but likely to fail.

Unfortunately many of the debt advisory helplines are behind on this, and as such they are still claiming that the last missed payment is the cause of action.

Have a look at this thread link below, it is recent and covers this topic. I was in court myself recently with the statute barred defence and the Judge decided that the cause of action wasn't the last missed payment, but the date of the S87(1) DN.

There are plenty of people in the link below who can go into more detail and help you regardless.


Hope this helps.

http://legalbeagles.info/forums/show...ons-)-(-COA-DN-)

[celo]

Re: Statute Barred Credit Card Debt Cause of Action

District Judges are going off the date on the S87(1) DN as the Cause of Action. They aren't considering the last missed payment to be the date of accrual for the Cause of Action. This is vital to consider when using the Statute Barred defence.


Have a look at this thread link below, it's recent and covers this topic. I was in court myself recently with the statute barred defence and a Judge told me what she considered to be the cause of action. Every case is different though, and the details are important. Plenty of people in the link below can help on this subject.

Hope this helps.

http://legalbeagles.info/forums/show...ons-)-(-COA-DN-)

Thank you. I have indeed now read it. My goodness. All the debt helplines are handing out absolutely appalling advice. If the creditor decides when the clocks starts ticking (seems to ignore the wishes of Parliament) by letting them start the clock with a S87(1) DN then the 6 year clock is obviated and indeed misleading.

[Caretaker237]

Re: Statute Barred Credit Card Debt Cause of Action

Indeed, it seems odd to the layman that the Cause of Action can only initially be triggered by the creditor by issuing the S87(1) DN. It would make far more sense in the interests of integrity for the last missed payment or acknowledgment to be the Cause of Action, as this could only be triggered by the debtor and therefore it would not be open to abuse.

As it stands it would appear that a creditor could circumnavigate section 5 of the Limitations Act 1980 by delaying the issue of the S87(1)DN. During my hearing the Judge addressed the Barrister and pointed out that should a creditor fail to issue the S87(1)DN, then based on the Barristers argument there would never be a defence available to a defendant under the Section 5 of the Limitations Act 1980, in such circumstances. I was expecting a long winded explanation from the Barrister, but she simply answered "yes maam" in such circumstances there would not be a defence, as the creditor could simply issue the S87(1)DN years after the last missed payment, and shortly prior to issuing legal proceedings. There is nothing to stop a creditor from doing that.

The Judge then addressed me and asked if I had a legal argument to counter this. Despite the fact that my agreement allowed for account closer with 7 days notice from a missed payment, and despite the fact that the debtor was entitled to begin court proceedings from the last missed payment, the Judge ruled that for all facts to be in place a S87(1)DN would first need to have been issued, and that was the date of the Cause of Action. BMW vs Hart featured in the Judge's ruling and final summary/statement. This had an impact.

There does not seem to be a time limit in which a S87(1)DN needs to be issued. The only requirement is that the S87(1)DN should first be issued before court proceeding can commence under the requirements of the CCA 1974.

In my case the S87(1)DN was issued almost 10 months after the last missed payment.

Things to consider and certainly questionable to say the least. I believe that if this is ever argued in the High Court then the sane decision would have to be the last missed payment as the Cause of Action. There should at least be a time limit for the issue of the S87(1)DN.





[QUOTE=celo;771334]Thank you. I have indeed now read it. My goodness. All the debt helplines are handing out absolutely appalling advice. If the creditor decides when the clocks starts ticking (seems to ignore the wishes of Parliament) by letting them start the clock with a S87(1) DN then the 6 year clock is obviated and indeed misleading.

Thank you. I have indeed now read it. My goodness. All the debt helplines are handing out absolutely appalling advice. If the creditor decides when the clocks starts ticking (seems to ignore the wishes of Parliament) by letting them start the clock with a S87(1) DN then the 6 year clock is obviated and indeed misleading.

[celo]

I have a hearing scheduled to set aside the CCJ. Restons seem to want to withdraw and have sent me a Tomlin order that they would like me to sign. It provides for:

1. The hearing to be vacated
2. The Judgement entered herein on 12 October 2017 against the Defendant be and is hereby set aside.
3. The registration entry be and is hereby cancelled
4. There be no order for costs

On the covering letter they state that their client (Arrow Global Ltd.) will not pursue me further.

So I think this is what I want? I should sign the Tomlin Order and send it back?

[jaguarsuk]

I have a hearing scheduled to set aside the CCJ. Restons seem to want to withdraw and have sent me a Tomlin order that they would like me to sign. It provides for:

1. The hearing to be vacated
2. The Judgement entered herein on 12 October 2017 against the Defendant be and is hereby set aside.
3. The registration entry be and is hereby cancelled
4. There be no order for costs

On the covering letter they state that their client (Arrow Global Ltd.) will not pursue me further.

So I think this is what I want? I should sign the Tomlin Order and send it back?

If you are happy to have the judgement set aside, the entry removed from your credit file and you don't want to pursue them for costs then sign it as long as the "Order is to settle by Consent" (or wording to the tune of).

Personally I might be inclined to ask them to consent to paying fixed costs for the cost of your application to set aside seen as they are the ones wanting this to be settled.

Just redraft the order to change point 4 if that's what you want to read:

4. The Claimant pay the Defendant the fixed cost of £XXX 14 Calendar days after the court seals this order
5. There be no other order for costs

Send the draft back to them explaining that you wish them to cover the cost of your application to set aside and ask them to sign, then return it to you. Then when returned sign it, copy it for them and send the original to be sealed by the court. Plus a copy for your records of course.

If you choose to sign it as is have they already signed it? If so, copy it twice and send the original to the court to be sealed. If not, ask them in a covering letter the once they sign it to send you a copy of the signed version as well as sending it to court for your records..

[celo]

I have a hearing scheduled to set aside the CCJ. Restons seem to want to withdraw and have sent me a Tomlin order that they would like me to sign. It provides for:

1. The hearing to be vacated
2. The Judgement entered herein on 12 October 2017 against the Defendant be and is hereby set aside.
3. The registration entry be and is hereby cancelled
4. There be no order for costs

On the covering letter they state that their client (Arrow Global Ltd.) will not pursue me further.

So I think this is what I want? I should sign the Tomlin Order and send it back?

Thanks for your thoughts. At this point I'm happy for them to simply go away. I just wanted to be sure it meant what I thought it did. I was concerned that it was a trick. They've been real swines.

Thanks!

[jaguarsuk]

Thanks for your thoughts. At this point I'm happy for them to simply go away. I just wanted to be sure it meant what I thought it did. I was concerned that it was a trick. They've been real swines.

Thanks!

Yes, basically it'll be as if the claim never existed and as the debt is statute barred then they couldn't bring another, so that's the end.

The swines bit was why I asked if they'd signed it first as then you could ensure you get it off to the court promptly for sealing.

[celo]

Yes, basically it'll be as if the claim never existed and as the debt is statute barred then they couldn't bring another, so that's the end.

The swines bit was why I asked if they'd signed it first as then you could ensure you get it off to the court promptly for sealing.

It wasn't signed. Was worried they might just want an example of my signature. I've scanned it. I assume a judge would consider it bad faith if they reneged at this point?

[celo]

Yes, basically it'll be as if the claim never existed and as the debt is statute barred then they couldn't bring another, so that's the end.

The swines bit was why I asked if they'd signed it first as then you could ensure you get it off to the court promptly for sealing.

That was naive. Please ignore.

[jaguarsuk]

It wasn't signed. Was worried they might just want an example of my signature. I've scanned it. I assume a judge would consider it bad faith if they reneged at this point?

I assume you signed the application form to set aside? A copy of that was served on them and they have your signature already then.

You're not admitting to anything or agreeing to anything with this order other than what is written on it.

[celo]

I assume you signed the application form to set aside? A copy of that was served on them and they have your signature already then.

You're not admitting to anything or agreeing to anything with this order other than what is written on it.

They have indeed been served, so they have my signature (hearing was set for this month). Excellent point!

Thanks so much. You've put my mind at ease.

[celo]

I assume you signed the application form to set aside? A copy of that was served on them and they have your signature already then.

You're not admitting to anything or agreeing to anything with this order other than what is written on it.

And until I hear otherwise from the CC, I plan on attending my hearing.

[jaguarsuk]

And until I hear otherwise from the CC, I plan on attending my hearing.

Exactly, post back here once you have the order vacating the hearing to let us all know it went through successfully.

[Diana M]

I have a hearing scheduled to set aside the CCJ. Restons seem to want to withdraw and have sent me a Tomlin order that they would like me to sign. It provides for:

1. The hearing to be vacated
2. The Judgement entered herein on 12 October 2017 against the Defendant be and is hereby set aside.
3. The registration entry be and is hereby cancelled
4. There be no order for costs

On the covering letter they state that their client (Arrow Global Ltd.) will not pursue me further.

So I think this is what I want? I should sign the Tomlin Order and send it back?

If you've been sent a Tomlin Order to sign by solicitors acting for the opposition (i.e. the Claimant) then I suggest you seek professional legal advice from a lawyer who has seen it and explained the consequences of any potential ongoing legal issues - especially Paragraph No 2 in relation to the covering letter.

Has anyone suggested whether the claim could be dismissed by consent?

Di