Letter of Claim - Advice

[dennis1973]

Hello,

I have received a letter of claim from a solicitor (part of a debt management company) for a credit card debt that I last made a payment to in November 2012. I spoke to them and asked for a copy of the original credit agreement and for them to prove the date of default vs. the credit agreement as they are saying it defaulted in August 2013, thus the six years for statutory barred is not up until August this year.

They put me on hold, repeatedly, and came back with lines such as "we just want to nip this in the bud, let's set up a payment plan" which suggests to me that they don't have the agreement.

My questions, please, as I need to reply to them this week, are as follows:

1. Without the original agreement can they move to court action?
2. Is my best action to write back, not accepting the debt, tick the dispute option and ask for the above documents?

I would like them to confirm the default date, to default it nine months after the last payment seems to long to me, can I challenge this?

Thank you.

[Amethyst]

Yes, complete The reply form saying you don't know if you owe this debt and requesting documents, being the notice of assignment default notice and credit agreement and any statements of account. At the same time but separately, send a formal CCA request to the claimant ( not the solicitor) .https://legalbeagles.info/library/gu...etter-example/

Sadly they are correct that the date of default is the date of the cause of action for the limitation act purposes so even though you last paid in November 2012 if it took them 8/9 months before they defaulted the account you'll have an argument on your hands.

Does anything still show on your credit file for this debt because if it did default in August 2013 it should still show.

[dennis1973]

Thanks for the reply.

Yes, it is on my credit file, Nine months to issue a default seems long to me, I had others and they all defaulted much quicker than that. There must be an obligation or something in the original agreement that states when it will default, otherwise what would stop the original company never defaulting it?

I will ask for the documents as I note and see what they come back with.

When you say send a CCA to the claimant, can you confirm if you refer to the original credit card provider or who the solicitor is acting on behalf of? (the solicitor is part of the same debt management company who it was sold to).

Thank you.

[Amethyst]

The Debt purchaser, so Cabot or Lowell, as opposed to Mortimer Clarke or Lowell Solicitors... ( under the CCA 1974 the purchaser/assignee of the debt becomes the creditor for the purposes of the CCA s.77/78 requests)

And yes it is a long time... if they sent you a default notice though in say January that gave 14 days, and you didn't comply with such, you can argue the default date should have been the date of expiry of the Default Notice, not some arbitrary date in the future.

A SAR actually might help to the original credit company as well - Subject Access Request Letter

you can ask for full SAR online or by email/phone now with many creditors. That should give you some details of when it defaulted/ should have defaulted etc.

[dennis1973]

Great, thank you for your help.

[dennis1973]

Hi - if the debt management company replies that they are unable to source the CCA due to “the age of the debt” is it then unenforceable in terms of court action?
It will be statutory barred in 14 days, is it best to ignore them as they are chasing me...
Thank you.

[Amethyst]

Yes - While they are in default of your cca request the debt is unenforceable. They can still issue a court claim against you but you should be able to defend it on the grounds of non-compliance with section 77/78.

Did you send a subject access request to the original creditor?Anything back on that yet?

[dennis1973]

Thank you.

To be clear I have two debts here. One is in relation to the above, they sent me a letter of claim and I sent them a CCA request and to the original creditor and they just replied saying they would come back to me once they’d spoken to the original credit card company - three weeks ago, still waiting.

The other one, same debt management company, I asked for the CCA they came back with the above response and are still chasing me, this is statutory barred in 14 days and they haven’t sent me any claim forms or pre-court action.

[Amethyst]

Did you actually send a formal CCA Request

in

the post, with £1 ? or just ring them ?
If you haven't sent a formal one with £1, then do so... one for each debt.

If you think it will be going statute barred shortly, put at the top that you do not acknowledge any debt.

I'd also get SARs in to the original creditors so you know where you stand if the current debt owner does take it to court Subject Access Request Letter

[dennis1973]

Thanks for the reply. Yes, I sent the letter template and a £1 postal order as per your advice. They wrote back saying they’d be back in touch when they’d spoken to the original creditor.

Is it not correct that they have to pay to take it to court, a fee based on the % of the amount owed? If that’s the case why would they do that if they can’t provide the CCA? It would just be thrown out if I challenged them and they’d lose the money, wouldn’t they, plus fees?

Noted on the SAR point.

Thanks again.

[Amethyst]

Oh good, just checking

If they issue a claim, you defend the claim, and they are still unable to provide documents, or it is found to be statute barred, then yes they will lose their court fee. It's a numbers game with them though, they know that 89% of claims issued will either be settled or go to a default judgment ( source: https://assets.publishing.service.go...n-Mar-2019.pdf ) - and they paid such a small amount for the debt ( under 20% most likely ) that it's really worth a risk.

Court fees are EX50... as below …. so cost/potential benefit risk... I don't know how much the debt you're being chased for is.

[dennis1973]

Interesting, thank you.
these two debts are in the 5k to 10k range.
I defaulted on about 60k, six/seven years ago, across multiple cards. 45k of that is now statutory barred and I’ve never been taken to court for any of it, which I’ve always found surprising. Will be clear by year end, so just trying to protect the credit score I’ve rebuilt up after previous mistakes.
Ill send the SARS in.
thanks for your help.

[dennis1973]

Hi - just to close the above I debated back and forth with the providers on the dates of default and the absence of credit agreements to that point that they either gave up and passed the debts back, and, or, they became statutory barred. I was very lucky, I had about 9 separate defaults for about 60k, and faced no formal court action over the six years.

My final question is in relation to overdrafts, I have three old ones which will go over the 6 years statutory barred date next month. They are listed as closed, and the amounts have not changed for five years. Are the statutory rules the same? These were never passed to debt management companies, just closed. How are overdrafts dealt with, they’ll come off my credit report but could they still be enforceable, what are the rules?

Thank you.