WON Arrow(Restons) Credit Card Claim - think statute barred

**time2burn** · 11th August 2016, 13:18:PM

Re: Arrow(Restons) Credit Card Claim - think statute barred

Hi

Thinking on wording of Particulars of claim- it states 'under a contract..'

yet we never had a contract but was it not an agreement?
does this make a difference in law, and more importantly within court?
as all they MAY provide is a copy of a credit card AGREEMENT, but never a contract

Secondly - i am aware that CCA on credit cards pre 2007(which this was) a lot were unenforceable due to not being CCA compliant - is that claim still applicable ? can a court case be made on unenforceable agreement ?

Thanks in advance for answers to these 2 extra points

Si

**R0b** · 11th August 2016, 14:06:PM

Re: Arrow(Restons) Credit Card Claim - think statute barred

Hello,

Could you explain what you mean by the GAAP accounting principles?

The general rule in law is that just because something is "written off" does not mean it is unenforceable and the courts will still recognise it if it is not statute barred. That being said, the letter you received from Sainsburys could be helpful in that as part of your defence you could say that the Claimant is estopped from bringing a claim as the assignor has waived their right to claim damages to which you relied upon. The words "we will no longer be pursuing you for this amount" is clear and unequivocal. Alternatively it is an estoppel by respresentation in that they represented to you indicating that the amount would no longer be pursued which you relied upon and they have gone back on their representation by selling the debt to a third party.

I suspect Arrow / Restons will deny this and say an assignment passes the benefit not the burden however under s.136 of the Law of Property Act 1925 says the following:

Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice

The bit I have highlighted in red is what you would use as your defence. Subject to equities means that despite the agreement being assigned to another party, any defences or rights you have with the original creditor can be used against the third party. So for example, if you are owed £500 and the creditor assigns it to a third party who brings proceedings, you will have a defence of set off against the third party.

CPR 31.14 hasn't changed at all, you may also wish to send a CCA request to Arrow (in the green box at the top of page), £1 postal order made out as for the "statutory fee only". In your request you could also request a full breakdown of the alleged amount owed. Your CPR 31.14 (to Restons) will need to be a separate letter to the CCA request (which goes to Arrow).

Contract / agreement means the same thing in law as long as you have an offer, an acceptance, consideration (monies in most cases) and intention to be legally bound. Its just an interchangeable word.

If the agreement was executed pre 2007 then the legislation of the CCA at the time will apply and I think you might be referring to s.127 (now repealed) and I think the relevant case law was Wilson v First County Trust Ltd 2003 which said something about if the prescribed terms are not correct then it becomes irredeemably unenforceable or something to that effect.

I've tagged @nemesis45 for more assistance.

**time2burn** · 13th August 2016, 09:56:AM

Re: Arrow(Restons) Credit Card Claim - think statute barred

Originally posted by R0b View Post

Hello,

Could you explain what you mean by the GAAP accounting principles?

The general rule in law is that just because something is "written off" does not mean it is unenforceable and the courts will still recognise it if it is not statute barred. That being said, the letter you received from Sainsburys could be helpful in that as part of your defence you could say that the Claimant is estopped from bringing a claim as the assignor has waived their right to claim damages to which you relied upon. The words "we will no longer be pursuing you for this amount" is clear and unequivocal. Alternatively it is an estoppel by respresentation in that they represented to you indicating that the amount would no longer be pursued which you relied upon and they have gone back on their representation by selling the debt to a third party.

I suspect Arrow / Restons will deny this and say an assignment passes the benefit not the burden however under s.136 of the Law of Property Act 1925 says the following:

The bit I have highlighted in red is what you would use as your defence. Subject to equities means that despite the agreement being assigned to another party, any defences or rights you have with the original creditor can be used against the third party. So for example, if you are owed £500 and the creditor assigns it to a third party who brings proceedings, you will have a defence of set off against the third party.

CPR 31.14 hasn't changed at all, you may also wish to send a CCA request to Arrow (in the green box at the top of page), £1 postal order made out as for the "statutory fee only". In your request you could also request a full breakdown of the alleged amount owed. Your CPR 31.14 (to Restons) will need to be a separate letter to the CCA request (which goes to Arrow).

Contract / agreement means the same thing in law as long as you have an offer, an acceptance, consideration (monies in most cases) and intention to be legally bound. Its just an interchangeable word.

If the agreement was executed pre 2007 then the legislation of the CCA at the time will apply and I think you might be referring to s.127 (now repealed) and I think the relevant case law was Wilson v First County Trust Ltd 2003 which said something about if the prescribed terms are not correct then it becomes irredeemably unenforceable or something to that effect.

I've tagged @nemesis45 for more assistance.

Thanks for the above info ROb

GAAP- general accepted accounting principles- basically statute law for accounting -so if a company writes of a debt it is included in its accounts and used as an expense and taken into account for profit, and tax- they can't write off a debt then sell it- that is fraud and the IR will need to investigate
the points on sec 136 Lpa 1925 are helpful and will def use if need to goto court
yes to prescribed terms not correct- there were many firms using this a few years ago, saying if your CC was pre 2007 they COULD write off debt as a lot of CC companies didn't have the prescribed terms correct- such as a signature from creditor, or the certain wording being formatted correctly- BUT you say this has now been repealed?
Basically i will do pre court stuff CPR 31.4 and CCA request to each party, but need to know which line of defence(if req) i should go for 1st - the letter from Sainsburys 'written off' seems to be strongest- and although the courts are totally biased to creditors, surly a DDJ can't gee ruling with such a blatant statement from original creditor???????
Any more info on the unenforceable contract pre 2007- prescribed terms , would be gratefully received

Many thanks

simon

**nemesis45** · 13th August 2016, 10:12:AM

Re: Arrow(Restons) Credit Card Claim - think statute barred

Each credit agreement/contract has in its terms and conditions at some point saying that the creditor may if it deems is necessary sell/assign it rights in the agreement to a 3rd party such "sales " are made under the provisions of the Law of Property Act 1925.

The debt is written of the creditors books because it has been sold to a debt purchaser for a percentage of it's face value.

I absolutely sure the HMRC and the FCA would have been quick to act if your theory was of merit.

Even some pre April 2007 debts are being enforced with the provision of recon agreement and English Civil Law is based upon the " balance of probabilities" as seen by a judge.

Personally I don't think your defence based on these grounds will be successful.

nem

**time2burn** · 14th August 2016, 10:04:AM

Re: Arrow(Restons) Credit Card Claim - think statute barred

Hi
Thanks for info and input Nemisis45

Just further info on the 'written off debt' tact
the letter as stated above was dated 16/11/10 stating debt written off on 2/9/10 and no longer pursuing you for debt
then a letter from Sainsurys again stating balance was SOLD to Arrow on 21/4/11 - some 7 months AFTER they claimed it was written off

In accounting(i use to be accountant ) you can NOT write off a debt THEN sell the same 7 months later- if something is written off- it is classed as loss for balance sheet and tax purposes
If the dates were the same then there may be a case to say written off and sold maybe the same, but as a 7 month gap between the 2 then surely a court can not rule that in favour of claimant in this scenario

THOUGHTS please....

Simon

**nemesis45** · 14th August 2016, 10:12:AM

Re: Arrow(Restons) Credit Card Claim - think statute barred

Originally posted by time2burn View Post

Hi
Thanks for info and input Nemisis45

Just further info on the 'written off debt' tact
the letter as stated above was dated 16/11/10 stating debt written off on 2/9/10 and no longer pursuing you for debt
then a letter from Sainsurys again stating balance was SOLD to Arrow on 21/4/11 - some 7 months AFTER they claimed it was written off

In accounting(i use to be accountant ) you can NOT write off a debt THEN sell the same 7 months later- if something is written off- it is classed as loss for balance sheet and tax purposes
If the dates were the same then there may be a case to say written off and sold maybe the same, but as a 7 month gap between the 2 then surely a court can not rule that in favour of claimant in this scenario

THOUGHTS please....

Simon

Hello Simon Creditors sell debts in Portfolio Lots not individually, so the NOA is sent when the is sold which may be some months on.

As you will see on many threads here the debt may not be pursued by a debt purchaser for years e.g. " The debt was assigned to the claimant on xx x 2011 "

It's common and there's nothing unlawful in this situation.

nem

**R0b** · 14th August 2016, 10:41:AM

Re: Arrow(Restons) Credit Card Claim - think statute barred

Just to add to the point nemesis has made, if the debt is written off on a balance sheet and tax purposes does not make the debt statute barred. Unless the GAAP rules are set out in legislation and that particular legislation says once a debt is written off by a company it cannot be sold on or is deemed statute barred then the claim can be assigned and sold on.

The issue you are raising is a tax and financial one which as above, does not affect the the right to bring a claim. In fact I think there is already case law out there that says written off debts do not mean statute barred but I'd have to look for the specific case.

As I've said though, there is perhaps a defence of reliance on the fact that they have said this matter won't be pursued anymore and not because it's just written off

**charitynjw** · 14th August 2016, 11:26:AM

Re: Arrow(Restons) Credit Card Claim - think statute barred

Originally posted by R0b View Post

As I've said though, there is perhaps a defence of reliance on the fact that they have said this matter won't be pursued anymore and not because it's just written off

........and we are no longer pursuing you for this amount

Would this legally preclude someone else from pursuing it?

**nemesis45** · 14th August 2016, 12:00:PM

Re: Arrow(Restons) Credit Card Claim - think statute barred

They say " We will not pursue any more " not the no one will pursue any more.

nem

**R0b** · 14th August 2016, 16:02:PM

Re: Arrow(Restons) Credit Card Claim - think statute barred

Originally posted by charitynjw View Post

Would this legally preclude someone else from pursuing it?

It would be an equitable estoppel - either estoppel by representation which is similar to a misrepresentation. For example, A owes B £500 and B communicates to A that he will no longer pursue the remaning outstanding balance (£100 lets say) and A relies on that position. B decides 9 months down the line that he wants to recover the remaining £100 and issues proceedings against A. A's defence is that B is estopped from bringing a claim because of A's reliance.

Estoppel by representation requires the following

1. A representation which is made by A to B
2. the representation made A is contradicted by another representation or intention of A
3. the original representation by A induced B to rely on the represenation
4. A has changed their orignal position to B's detriment.

Then you have estoppel by waiver i.e. A has certain rights and obligations under a contract and because A indicates something to B which indicates their intention to waive any particular right or obligation, then it could be said that A has potentially waived their right. Examples of waiver could be where a deadline is not met under the contract, goods which are defective but nonetheless are accepted, a breach of a contractual term such as payment and instead of terminating the breach is affirmed (note, just because a breach is affirmed does not mean that damages for the breach is automatically waived - you can waive the breach and still claim damages).

So there's two options here and I think estoppel by representation is a better chance than waiver but still also worht pleading because it estoppel by representation is not agreed by the court they may still agree that there has been a waiver. For waiver of estoppel you would have to say argue that the words and conduct of the letter "not pursue you anymore" amounts to a waiver of their right to bring a claim.

Despite the fact that its been sold on, the OP can still rely on that defence.

**time2burn** · 15th August 2016, 14:59:PM

Re: Arrow(Restons) Credit Card Claim - think statute barred

Originally posted by R0b View Post

It would be an equitable estoppel - either estoppel by representation which is similar to a misrepresentation. For example, A owes B £500 and B communicates to A that he will no longer pursue the remaning outstanding balance (£100 lets say) and A relies on that position. B decides 9 months down the line that he wants to recover the remaining £100 and issues proceedings against A. A's defence is that B is estopped from bringing a claim because of A's reliance.

Estoppel by representation requires the following

1. A representation which is made by A to B
2. the representation made A is contradicted by another representation or intention of A
3. the original representation by A induced B to rely on the represenation
4. A has changed their orignal position to B's detriment.

Then you have estoppel by waiver i.e. A has certain rights and obligations under a contract and because A indicates something to B which indicates their intention to waive any particular right or obligation, then it could be said that A has potentially waived their right. Examples of waiver could be where a deadline is not met under the contract, goods which are defective but nonetheless are accepted, a breach of a contractual term such as payment and instead of terminating the breach is affirmed (note, just because a breach is affirmed does not mean that damages for the breach is automatically waived - you can waive the breach and still claim damages).

So there's two options here and I think estoppel by representation is a better chance than waiver but still also worht pleading because it estoppel by representation is not agreed by the court they may still agree that there has been a waiver. For waiver of estoppel you would have to say argue that the words and conduct of the letter "not pursue you anymore" amounts to a waiver of their right to bring a claim.

Despite the fact that its been sold on, the OP can still rely on that defence.

Thanks for all above - as always we see how the law stinks and justice and fairness have nothing to do with court proceedings and outcome!
Anyway REALLY appreciate your detailed knowledge on these matters - will see what happens with initial stages of CPR31.4 request etc and take it from there - the above on estoppel seems a good route based on my paperwork along with other defences- 1st lets see what actual paperwork ARROW/Restons actually produce

Thanks again for a good community - this really does help

Kind regards
simon

**R0b** · 15th August 2016, 15:25:PM

Re: Arrow(Restons) Credit Card Claim - think statute barred

Unfortunately I don't think the court process is to blame, the majority of times judges only see the information on the day and are not going to do the jobs of lawyers or litigants in person (but may sometimes assist) in querying the claim before them. Judgments are almost always based on the evidence before them on a balance of probabilities so really it is the debt purchasers in this case who push their luck in trying to obtain payment (some may say fraudulently) where cases may be statute barred or cannot be brought for other reasons.

They buy debts in bulk and probably go through the list issuing claims without verifying the merits of the case on the basis debtors will succumb to their demands. Fortunately, recent case law has allowed defendants to bring claims for malicious prosecution (slightly different to abuse of process) where claimants are bringing cases which are considered groundless e.g. statute barred. This sort of overlaps with the argument of an abuse of process where the courts have held that if a claimant decides not to do any investigatory work prior to commencing legal proceedings, and have no evidence or rely on the hope that something might turn up during the course of proceedings then this is an abuse of process. Counterclaims for this should be pleaded by defendants to (hopefully) make debt purchasers re-think their strategy of issuing in bulk.

That being said, you do need to make a note that your defence will need to be submitted no later than 7 September as I calculate providing you have acknowledged the claim (33 days from the date of issue). This is on the basis that an extension of time is not agreed by Restons.

In fact, subject to what their response is, it might be worth providing a copy of the letter supplied by Sainsburys to Restons inviting them to withdraw, that way if they press on and continue then you could potentially claim more than fixed costs on the basis that they had the opportunity to withdraw at an earlier stage and wasted court time and resources.

Anyway, there's no harm in starting to prepare your defence already based on the information you have right now, a lot of people underestimate how long it takes to draft defences and witness statements and often get rushed. Presenting a well laid out and thoughtful defence not only shows the other side you mean business but also to the judge.

**time2burn** · 15th August 2016, 17:27:PM

Re: Arrow(Restons) Credit Card Claim - think statute barred

Hi ROb
actually that was 1 of my other questions - if i should show my hand with the sainsurys letter or not prior to proceedings?
but was going to, prior to submitting defence but AFTER they replied to CPR31.4 request.
i have also issued them a statute barred notice(separately ) - Limitation Act1980 and stated they can't bring court claim if statute barred and asked for evidence to show otherwise - see what they give there

Again thanks all so far
si

**nemesis45** · 15th August 2016, 18:39:PM

Re: Arrow(Restons) Credit Card Claim - think statute barred

Originally posted by R0b View Post

Unfortunately I don't think the court process is to blame, the majority of times judges only see the information on the day and are not going to do the jobs of lawyers or litigants in person (but may sometimes assist) in querying the claim before them. Judgments are almost always based on the evidence before them on a balance of probabilities so really it is the debt purchasers in this case who push their luck in trying to obtain payment (some may say fraudulently) where cases may be statute barred or cannot be brought for other reasons.

They buy debts in bulk and probably go through the list issuing claims without verifying the merits of the case on the basis debtors will succumb to their demands. Fortunately, recent case law has allowed defendants to bring claims for malicious prosecution (slightly different to abuse of process) where claimants are bringing cases which are considered groundless e.g. statute barred. This sort of overlaps with the argument of an abuse of process where the courts have held that if a claimant decides not to do any investigatory work prior to commencing legal proceedings, and have no evidence or rely on the hope that something might turn up during the course of proceedings then this is an abuse of process. Counterclaims for this should be pleaded by defendants to (hopefully) make debt purchasers re-think their strategy of issuing in bulk.

That being said, you do need to make a note that your defence will need to be submitted no later than 7 September as I calculate providing you have acknowledged the claim (33 days from the date of issue). This is on the basis that an extension of time is not agreed by Restons.

In fact, subject to what their response is, it might be worth providing a copy of the letter supplied by Sainsburys to Restons inviting them to withdraw, that way if they press on and continue then you could potentially claim more than fixed costs on the basis that they had the opportunity to withdraw at an earlier stage and wasted court time and resources.

Anyway, there's no harm in starting to prepare your defence already based on the information you have right now, a lot of people underestimate how long it takes to draft defences and witness statements and often get rushed. Presenting a well laid out and thoughtful defence not only shows the other side you mean business but also to the judge.

Spot on [MENTION=71570]R0b[/MENTION] !!!!!

WON Arrow(Restons) Credit Card Claim - think statute barred