Documents I intend to rely on ?

[Bonio79]

Hi I'm in the small claims court today over an old debt relating to a credit card.

The defence i submitted was that the debt was statute barred as the last payment I paid was 6 years and three months ago.

However in the witness statement ,they denied this and showed a token payment, which I realised my dad made whilst I was out of the country .

My problem is they sent out the witness statement 15 days ago , but I only received it on Friday due to the fact that me and my dad were both away from home.

It stated that my defence was denied by the claimant because of a token payment before the 6 year deadline ended ,
however I intend to contest that payment as it was made by my dad whilst I was out of the country and he did not have legal power of attorney or my authority to make the payment on my behalf, He has written a letter to the court stating this.

My question is can I rely on this in court and will the judge accept this as I did not have the chance to send a copy to the court or the claimant within 14 days of the hearing.

[Bonio79]

Re: Documents I intend to rely on ?

The court claim was issued on 10th Jan 2017 and the token payment was made by dad from his account into my Dmp account on 16 th of Feb 2011 however the last payment I made was on Nov 2010 I stopped paying into the dmp after I lost my job and moved away to live with family in Australia.

[Bonio79]

Re: Documents I intend to rely on ?

The only reason he made the payment was because he was pressured by payplan over the phone to keep the plan open by making £3 token payment to cover the three months prior that I refused to pay , as he could not get in touch with me he paid it without my knowledge or permission and I did not give him power of attorney to deal with any of my finances.

[R0b]

Re: Documents I intend to rely on ?

My personal view would is that argument would not be enough to claim it is statute barred. The creditor could rely on 'apparent authority' which is that they could reasonably think that your dad made the payment acting on your behalf despite you giving your dad no authority to act at all. Unless there is some other exceptional reason, I think you may struggle with that argument.

Whilst I don't know how your case has panned out, it may have been smarter (if you didn't already do this) to put the Claimant to proof and provide evidence of the bank name, account number and sort code. Only if they provided those details you could argue that account details they supplied is not your bank account so you did not in fact make any payment and put the onus on them to prove you did.

[Bonio79]

Re: Documents I intend to rely on ?

My problem is I didn't have sufficient time to prepare any defence as I was sure The debt was time barred up until Friday when I read through the claimants witness statement and saw this token payment which I had no knowledge of and my dad could not recollect until he checked his bank statement and his memory was jogged so I have not had the chance to show the court or the claimant my new evidence, so I'm in court at 11.30 am today and I don't know what to do .

[Bonio79]

Re: Documents I intend to rely on ?

Also before I left we fell out over the fact that I refused to pay into my dmp and I told my dad I wasn't going to make any further payment to them and neither should he ,it was his own decision with his own money going against my wishes so he was not acting as my authority .

[R0b]

Re: Documents I intend to rely on ?

If you didn't have enough time to prepare a defence then you should have made an application to the court for an extension of time and/or filed a further application for an amended defence to be admitted. Unfortunately, because you are a litigant in person there is not one rule for you and other rules for solicitors, we all work to the same rules.

So I am a bit lost here, the Claimant has stated in their witness statement that a token payment was made, have they provided in their evidence of how and where it was paid from e.g. the bank account details?

You also said that your dad wrote a letter to the court, when did he do this and was it sent to the Claimant too? Why did he do this, did he send it off your suggestion or his own? what did it say, does he admit to making the payment?

Again, just because your dad didn't have your authority to make the payment doesn't mean it wasn't a legal payment. If the Claimant believes that the payment was genuine and has no reason to believe that it was fraudulent or not intended to be paid into that account, then they can rely on that payment as a genuine payment. The issue is then between you and your dad to sort out, not the court's or the Claimant.

The judge may have some sympathy for you but legally speaking, the debt does not appear to be statute barred based on your dad's payment and I would be surprised even if a judge decided to find in your favour that the Claimant wouldn't appeal it depending on the sums involved. In the eyes of the court, you owe the debt and ran the risk by not paying for such a long time (and maybe hoping it to be statute barred) but because a payment was made although without your authority, it was still made.

Was your only defence relying on it being statute barred? Are there any other holes in the Claimant's argument that you could pick at such as a lack of default notice or assignment notice? You could raise these as being issues and ask for an adjournment with permission to amend your defence within a short period e.g. 7 days because you didn't have time to make any amendments. But it is ultimately the judge's discretion and he might want to know why amendments or applications had not been made before the hearing.

Perhaps others may have other suggestions on how to get around this but from the sounds of it, it isn't good.

[Bonio79]

Re: Documents I intend to rely on ?

Yes I didn't know I needed an amended defence until late Friday just gone and my dad has written the letter for me but I have not sent it to anyone as I did not have time, I was going to show the judge in court but I'm realising that might not be possible.

[R0b]

Re: Documents I intend to rely on ?

So if it's not sent then you maybe want to keep it close to your chest instead of handing it over.

If they have suggested a token payment had been made to the account then you can dispute that and say that no payment was made by you from any of your bank accounts and it is up to them to prove that the source of funds came from you e.g. the date of the payment, account number, sort code and name of the bank.

If they haven't already given you that evidence then they may not have it in their possession and again you can explain to the court that simply stating a token payment was made without proof of where it came from is not satisfactory evidence and that you maintain that no payment ever came from you for over 6 years, meaning the debt is statute barred. It is common knowledge that it is for the claimant to prove the debt is not SB and the court should not speculate where it is possible for evidence to be adduced.

It might give you a lifeline if they ask for an adjournment but you could also resist an adjournment and press for a dismissal since they have had plenty of time to get their affairs in order and it is clear that they don't have the necessary evidence to bring a claim at all because if they did, then they would be able to produce the evidence before the court now. giving effect to the overriding objective, any adjournment is a further waste of court resources and the court should not indulge the Claimant in allowing an adjournment to take place and therefore dismiss the claim.

There's not much more I can assist with because you've left it really late and I don't know the full facts of your case. It is really up to you now as to how you go about it.

[Bonio79]

Re: Documents I intend to rely on ?

I've just attended the hearing and provided my new evidence, the letter from my dad and his bank statement relating to his payment to the court and claimant and the judge ordered an adjournment in order for both parties to provide more evidence so now I have to legally prove my dad wasn't liable for the debt and did not have the authority to act against my wishes and was not legally assigned as my agent or the fact he did have my power of attorney , I didn't know I could press for dismissal I wish I had read this post before going in , thanks for your help .

[R0b]

Re: Documents I intend to rely on ?

Well you might just very well get away with it. Is it possible for your dad to attend the next hearing, there is likely to be more credibility in him attending in person rather than through a statement being made.

You said you were out of the country at the time so it may help if you have evidence of the time you were out and, maybe evidence to show that your dad tried to contact you whilst out there and through no response he then decided to make the payment without your knowledge.

The question that might be raised is whether or not he left a voicemail and if not why not? Equally, he could have sent you a text message about it and again, if he didn't send a text message why didn't he - were there any valid reasons why?

If the Claimant or its representative was savvy enough they may find something that could potentially sink your case but I won't mention it on here as creditor do have a tendency to look at forums like this.

Ultimately, if you can convince the judge that no payment was made out of your bank account and no dad was not given authority at all to make the payment, then you could get away with it.

Has the judge suggested how long the adjournment will be? If you turn up to court again and the Claimant seeks another adjournment you should definitely resist it on the basis that they were already given an adjournment to find the evidence needed.

[Bonio79]

Re: Documents I intend to rely on ?

At the time I was in a debt spiral , I had several creditors all adding interest and charges on as well so I ended up on the DMP as I could not keep up with the payments and then I lost my job.

Me and my dad fell out over this and he kicked me out , my uncle took pity on me and offered to pay for my flight over to Perth Australia were he lives.

I lived with my mums brother and he doesn't speak to my dad as my mum and dad went through a messy divorce and I didn't have a working mobile If I wanted to contact anyone I rang off his house phone , I didn't speak to my dad the whole time I was there after are big bust up so I spent three months there before coming back to face the music , I personally hadn't made a payment to anyone regarding my debts for 6years 2 months before the claimant made the claim against me .

[Bonio79]

Re: Documents I intend to rely on ?

I don't know wether I should start a new post about this but it relates to my case , the terms and conditions are not the originals and the credit agreement is eligible and so is the first page of the terms and conditions should I amend my defence or have i already admitted to the debt ?

[Joanna C]

Re: Documents I intend to rely on ?

It is difficult for anyone to suggest anything without seeing either the claim form, the defence or their witness statement.

You shouldn't just rely on the statute barred defence. It is likely that the District Judge will find for the claimant on this point given your fathers close connection with you.

You are being allowed to submit witness evidence. So use it to make them prove their claim. For example is it an assigned debt? If so then require them to prove assignment. Have they enclosed a default notice in their witness statement? If they haven't then they can't claim the while balance.