Statute Barred Credit Card Debt Cause of Action

[jaguarsuk]

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

Di

Good point well made, I asked if the order is "to settle by Consent" wouldn't that cover the matter being finalised as the claim reference will be within the order?

If they have agreed to settle the claimant couldn't then pursue a new claim for something they have already settled surely?

[Diana M]

Good point well made

Thank you.

Your advice was for the OP to sign a legally binding court Order without first seeking professional advice as to the legal 'status' of the original claim once the CCJ had been set aside (by consent) so the Hearing would be vacated. The claim would still exist.

A covering letter from solicitors saying their client Cabot will not pursue the OP further may not prevent them for assigning the debt to the next debt purchaser or reassign it to the original creditor (who's not been named on this thread).

Di

[jaguarsuk]

A covering letter from solicitors saying their client Cabot will not pursue the OP further may not prevent them for assigning the debt to the next debt purchaser or reassign it to the original creditor (who's not been named on this thread).

If they have agreed to settle and then Cabot sell the debt on, the new creditor would have no right to bring a claim as the Defendant has already settled the matter with Cabot. I don't see how that assignment would be legal as the debt was settled by consent order and Cabot had nothing to sell. Hence why I asked if the order says "settle by consent."

The reason I thought the dismissal being added was a good idea was to save time in the court sending out directions and waiting on Cabot discontinuing.

[Diana M]

If they have agreed to settle and then Cabot sell the debt on, the new creditor would have no right to bring a claim as the Defendant has already settled the matter with Cabot. I don't see how that assignment would be legal as the debt was settled by consent order and Cabot had nothing to sell. Hence why I asked if the order says "settle by consent."

The reason I thought the dismissal being added was a good idea was to save time in the court sending out directions and waiting on Cabot discontinuing.

The Order (which I've not seen) appears to consent to:

(a) vacate the Hearing to decide on the Application to set aside the CCJ

because

(b) the Order consents to the Application to set aside the Judgment (so no Hearing/DJ decision needed)

(c) the CCJ to be removed from the Registry Trust (since it will no longer exist after it's been set aside)

(d) no Order to costs.

I don't see anything about the Claimant planning/agreeing to discontinue, but if that were to be the case then it should be included in the Order.

I also don't see anything which says Cabot have agreed to settle, only that they've agreed to set aside the CCJ without the need for a Hearing where they would likely be ordered to pay the Applicant's costs if they lost.

Di

[jaguarsuk]

The Order (which I've not seen) appears to consent to:

(a) vacate the Hearing to decide on the Application to set aside the CCJ

because

(b) the Order consents to the Application to set aside the Judgment (so no Hearing/DJ decision needed)

(c) the CCJ to be removed from the Registry Trust (since it will no longer exist after it's been set aside)

(d) no Order to costs.

I don't see anything about the Claimant planning/agreeing to discontinue, but if that were to be the case then it should be included in the Order.

I also don't see anything which says Cabot have agreed to settle, only that they've agreed to set aside the CCJ without the need for a Hearing where they would likely be ordered to pay the Applicant's costs if they lost.

Di

Hence why my original advice in post #6 was:

sign it as long as the "Order is to settle by Consent"

I did not just say sign it as you implied in post #17 and in fact only said sign it if it was an order to settle as that will end the matter.

[Diana M]

in fact only said sign it if it was an order to settle as that will end the matter.

There is no such thing as an Order to settle (by consent or otherwise).

Di

[celo]

There is no such thing as an Order to settle (by consent or otherwise).

Di

Hello,

Many thanks for your keen insight and commendable paranoia!

The claimant, Restons' client, is Arrow Global. I have signed the order and sent it off. They'll receive it by 1:30pm today (5/4/2018).

I've tried uploading the order, it is a tiff, but the beagle won't accept it.

The actual wording is:

Consent Order

Upon the application of the solicitors for the claimant and the defendant in person it is ordered by consent that: (and then the enumeration of the 4 points as above).

The covering letter (which is labeled WITHOUT PREJUDICE, so I suppose that it can't be adduced in court?) states in the final paragraph:

Once received back at this office, we shall countersign the draft and file it with the court for approval. Once approved the judgement entered against you shall be set aside and our client confirms it will not pursue you any further for any balance associated with the account which is subject to these proceedings.

[jaguarsuk]

There is no such thing as an Order to settle (by consent or otherwise).

Di

No, there are Consent Orders in which the wording can settle a court proceeding. I know you don't like to admit when you are wrong, but stop being pedantic for the sake of it.

Usually the wording of such consent orders is:

Upon the parties agreeing by consent to settle the matter in the <<COURT & ADDRESS>>

IT IS ORDERED THAT

1. terms
2. more terms

Schedule (if applicable)

A Terms
B more terms

I'm going to unsubscribe to this, as yet again this is detracting from the OP's thread.

[Diana M]

I know you don't like to admit when you are wrong, but stop being pedantic for the sake of it.

I'm not going to admit I was wrong because I was not wrong.

Being pedantic is one of the tools of my trade (being a lawyer).

Diana M

[Diana M]

The actual wording is:

Consent Order

Upon the application of the solicitors for the claimant and the defendant in person it is ordered by consent that: (and then the enumeration of the 4 points as above).

The covering letter (which is labeled WITHOUT PREJUDICE, so I suppose that it can't be adduced in court?) states in the final paragraph:

Once received back at this office, we shall countersign the draft and file it with the court for approval. Once approved the judgement entered against you shall be set aside and our client confirms it will not pursue you any further for any balance associated with the account which is subject to these proceedings.

What you have signed is a Consent Order not a Tomlin Order (with a Schedule) as you first thought which agrees that the CCJ is set aside and the entry is removed from the Registry Trust so it should also be removed from your CRA files. There's no Order for Costs so Cabot/Restons will be paying the filing fee at court.

The way I see it the claim remains live until or unless it is either Discontinued or the court makes a further Order to dismiss it or strike it out.

You have also received a Without Prejudice letter (which is privileged) which you say includes a paragraph saying that their client confirms they will not pursue you any further for any balance.

Keep both the Order and that letter safe in case there's an unexpected encore in these proceedings.

You've not filed a Defence so they can reissue a claim without needing permission from the court even if they do Discontinue it. I can't comment on whether that is likely or not since you've not said anything about the claim such as the amount claimed, the original creditor etc etc.

Ideally you would have asked them to agree to Dismiss the claim in that Consent Order before you signed it but if the debt really is Statute barred then you would have a Defence even if this issue did rear it's ugly head again another day.

What date is the set aside Hearing? You need to check with the court beforehand to make sure it has been taken out of the List and that the Consent Order has been filed and put before a DJ.

Di

[celo]

What you have signed is a Consent Order not a Tomlin Order (with a Schedule) as you first thought which agrees that the CCJ is set aside and the entry is removed from the Registry Trust so it should also be removed from your CRA files. There's no Order for Costs so Cabot/Restons will be paying the filing fee at court.

The way I see it the claim remains live until or unless it is either Discontinued or the court makes a further Order to dismiss it or strike it out.

You have also received a Without Prejudice letter (which is privileged) which you say includes a paragraph saying that their client confirms they will not pursue you any further for any balance.

Keep both the Order and that letter safe in case there's an unexpected encore in these proceedings.

You've not filed a Defence so they can reissue a claim without needing permission from the court even if they do Discontinue it. I can't comment on whether that is likely or not since you've not said anything about the claim such as the amount claimed, the original creditor etc etc.

Ideally you would have asked them to agree to Dismiss the claim in that Consent Order before you signed it but if the debt really is Statute barred then you would have a Defence even if this issue did rear it's ugly head again another day.

What date is the set aside Hearing? You need to check with the court beforehand to make sure it has been taken out of the List and that the Consent Order has been filed and put before a DJ.

Di

The cover letter referred to it as a Tomlin Order, even as a laymen that made no sense to me. I assume that the people Restons employs are simply sloppy.

The hearing to set aside the CCJ is on April 25th. I plan to attend unless the CC notifies me that the matter is closed. I even wondered if Restons is using this a ruse, to trick me into failing to appear. I thought it odd that they would send the consent order unsigned.

I know very little about the underlying matter. I moved back to the UK last summer (following an absence of 6 years). I moved within the UK in the autumn, missed a court summons and discovered a CCJ from a credit alert (default judgement Oct 11, Clearscore told me Nov 11, I filed a N244 straight away). So I haven't seen any documents. I called Restons and they claim that the do not have to prove the debt or that their client owns it.

It looks like an HSBC credit card (16 digit account number). I don't even have the full account number, half are starred out. I did have an HSBC credit card back in 2011. I was unemployed between 2009-2011, so I moved to the states for work in 2011.