Tweet
A brief history:
About 10 years ago I took a loan out with Black Horse finance. Not so long after that my marriage suddenly broke down and left me with all sorts of issues. One of the issues became finance so I had to abandon certain agreements and focus on getting the useful stuff arranged. Luckily, it didnt take so long for me to resume normal living but by that time this loan had Defaulted. What Black Horse done with it after the default is unknown to me to this day.
Fast forward to February 2016 and on one of my regular browses of my credit report (courtesy of Noddle) I spot a CCJ having been recorded. However, the address it was recorded at was my previous address and not my current one. Time to do some digging then. Straight away I could see that the creditor (Hillesden) had accessed my credit report in April 2015, the same credit report confirmed my current address and entry into the electoral role in December 2014. Therefore, im pretty sure they knew my current (and therefore last known) address.
So, in went the N244 (before the price rise thankfully) on the grounds documents were not served. The response from Restons Solicitors was a Witness Statement and a copy of their final letter (part of the Pre Action Protocol they barely abide by). This letter and the Witness Statement refer to Cabot Financial as being the company taking the action. So, back to the credit reports and on my Equifax report I find 2 trace enquiries performed by Cabot in September 2015, one at my previous address, one at my current address.
Now things get more interesting. The final letter from Restons (acting for Cabot), referred to as DLC1 was written in mid November and as I didnt respond to it they issued a claim in early December, all at my previous address. Of course, the claim was undefended so they were awarded the judgement for something approaching £4K.
Anyway, had the N244 hearing a few days ago and the Restons representative was very aggressively pushing the judge to dismiss the case on 2 grounds, they claim they served correctly according to the CPR 1998 and 2, the debt isnt statute barred as payments were made in 2010. No evidence of this was forthcoming as he couldnt find it in his bundle (I know he had it though, I got a brief look at it).
I wasnt well prepared, I had no idea what was required of me so the Judge (irritated by the Restons rep it seems) adjourned for 21 days and made the point that he would be taking the next hearing personally. I was instructed to get my Witness Statement in order and on his desk within 7 days (with a copy to Restons). All this I have done with some great help from the local CAB.
All this will be in the post (Special Delivery) shortly but one thing that did come up in conversation is how do I defend against the claim that payments were made on the account? I know the limitations act is a bit woolly on the payments thing but the chap at CAB told me there is some case law out there that clarifies the payment must be made by the debtor and not just anybody.
I would like a copy of that piece as a backup plan in court on the day. My fear is that the Judge will just say that payment has been made in accordance with the limitations act therefore I lose. In fact, the Judge sided with the Restons rep when he made the point that it didnt matter who paid on the account, just that a payment was paid. Being able to refute that on the spot (I may even slip it into the Witness Statement) as supporting evidence covers the only base that I am not confident on.
In essence, my case is that the service of documents knowingly to the wrong address has disadvantaged me on the grounds I have a defence that the alleged debt is Statute Barred.
Sorry for the long first post but does anybody know where I can find the piece of case law im after? I will keep the forum updated on progress as it happens.
About 10 years ago I took a loan out with Black Horse finance. Not so long after that my marriage suddenly broke down and left me with all sorts of issues. One of the issues became finance so I had to abandon certain agreements and focus on getting the useful stuff arranged. Luckily, it didnt take so long for me to resume normal living but by that time this loan had Defaulted. What Black Horse done with it after the default is unknown to me to this day.
Fast forward to February 2016 and on one of my regular browses of my credit report (courtesy of Noddle) I spot a CCJ having been recorded. However, the address it was recorded at was my previous address and not my current one. Time to do some digging then. Straight away I could see that the creditor (Hillesden) had accessed my credit report in April 2015, the same credit report confirmed my current address and entry into the electoral role in December 2014. Therefore, im pretty sure they knew my current (and therefore last known) address.
So, in went the N244 (before the price rise thankfully) on the grounds documents were not served. The response from Restons Solicitors was a Witness Statement and a copy of their final letter (part of the Pre Action Protocol they barely abide by). This letter and the Witness Statement refer to Cabot Financial as being the company taking the action. So, back to the credit reports and on my Equifax report I find 2 trace enquiries performed by Cabot in September 2015, one at my previous address, one at my current address.
Now things get more interesting. The final letter from Restons (acting for Cabot), referred to as DLC1 was written in mid November and as I didnt respond to it they issued a claim in early December, all at my previous address. Of course, the claim was undefended so they were awarded the judgement for something approaching £4K.
Anyway, had the N244 hearing a few days ago and the Restons representative was very aggressively pushing the judge to dismiss the case on 2 grounds, they claim they served correctly according to the CPR 1998 and 2, the debt isnt statute barred as payments were made in 2010. No evidence of this was forthcoming as he couldnt find it in his bundle (I know he had it though, I got a brief look at it).
I wasnt well prepared, I had no idea what was required of me so the Judge (irritated by the Restons rep it seems) adjourned for 21 days and made the point that he would be taking the next hearing personally. I was instructed to get my Witness Statement in order and on his desk within 7 days (with a copy to Restons). All this I have done with some great help from the local CAB.
All this will be in the post (Special Delivery) shortly but one thing that did come up in conversation is how do I defend against the claim that payments were made on the account? I know the limitations act is a bit woolly on the payments thing but the chap at CAB told me there is some case law out there that clarifies the payment must be made by the debtor and not just anybody.
I would like a copy of that piece as a backup plan in court on the day. My fear is that the Judge will just say that payment has been made in accordance with the limitations act therefore I lose. In fact, the Judge sided with the Restons rep when he made the point that it didnt matter who paid on the account, just that a payment was paid. Being able to refute that on the spot (I may even slip it into the Witness Statement) as supporting evidence covers the only base that I am not confident on.
In essence, my case is that the service of documents knowingly to the wrong address has disadvantaged me on the grounds I have a defence that the alleged debt is Statute Barred.
Sorry for the long first post but does anybody know where I can find the piece of case law im after? I will keep the forum updated on progress as it happens.
Comment