Statute Barred Defence and tactics of Lowells and others

[Amethyst]

A number of cases we're seeing from Lowells and other DCA's are already stat barred by the time the claim is issued.

People are defending the claim on this basis. Instead of backing off, the claimants are continuing through the court process, coming up with 'print outs' showing some random amount payment was made within the past 6 years. In one case they've pretty much invented a whole DMP payment scheme.

What is the best way to counter those arguments - as always proving you haven't done something is harder than proving you have.

So copies of statements/ transaction lists from the current account etc held over the past six years ?

So as well as CCA and CPR requests, should we being doing a DSAR for transaction lists on the debtors bank account as soon as they receive a claim which they think is Statute Barred ?

[Nibbler]

Re: Statute Barred Defence and tactics of Lowells and others

From a well known legal text.



A typed up list of numbers proves nothing.

I could type up a list showing all sorts of imaginary things. Doesn't make it real or prove a damn thing.

[Celestine]

Re: Statute Barred Defence and tactics of Lowells and others

This is an issue I've seen repeatedly in Lowell cases. It's most often a £20 payment around one actual year after the last real payment.

I've also seen cases os Lloyds debiting payments from a closed/dormant/abandoned overdrawn bank account and crediting them to a defaulted credit card account. I don't believe they are permitted to do this under right of offset. In a recent case I dealt with, 'phantom' payments continued from the defaulted bank account to the defaulted credit card account for a year. This extends the Limitation period.

[NotPaying]

Re: Statute Barred Defence and tactics of Lowells and others

So there's a £20 payment showing 1 year after the last actual payment.
If you keep your correspondence you should have numerous letters from the creditor and/or DCA's showing an outstanding balance which has not been reduced by £20 from the phantom payment date.

[Celestine]

Re: Statute Barred Defence and tactics of Lowells and others

Yes, that s very true. Lowell's own statements often do not reflect the £20 payment...which is a bit of a giveaway!

[Amethyst]

Re: Statute Barred Defence and tactics of Lowells and others

Trouble is the courts accept it, like they do with the entry saying 'default notice sent'.

So if we're at allocation stage on a stat barred debt where you have defended on statute barring, at what point can we ask the claimants to evidence that the debt is not stat barred and evidence the payments?


Another thing is making out in court that you missed an installment payment, when you didn't, in order to get a final charging order. If you're not prepared with your evidence in hand they get away with it.

[Celestine]

Re: Statute Barred Defence and tactics of Lowells and others

Well the defence is where the defendant should set out a decent explanation of their belief that the debt is time barred. The claimant would really need to produce a witness statement with exhibits which reinforce their position.
If those exhibits are fakes, then the defendant would need to produce a witness statement to address the points raised in claimants WS.
If it gets this far, then I would feel safer having access to old statements etc to evidence payment history. So a SAR at the commencement of any court claim is a vital, plus accessing old statements for your own bank account if necessary.

[NotPaying]

Re: Statute Barred Defence and tactics of Lowells and others

Could making a SAR request mark you out as someone who has poor records and trigger off a phantom payment for a statute barred debt?

[FlamingParrot]

Re: Statute Barred Defence and tactics of Lowells and others

So as well as CCA and CPR requests, should we being doing a DSAR for transaction lists on the debtors bank account as soon as they receive a claim which they think is Statute Barred ?

Wouldn't it be better to send a Part 18 request for information under the CPR instead?

This is an issue I've seen repeatedly in Lowell cases. It's most often a £20 payment around one actual year after the last real payment.

I've also seen cases os Lloyds debiting payments from a closed/dormant/abandoned overdrawn bank account and crediting them to a defaulted credit card account. I don't believe they are permitted to do this under right of offset. In a recent case I dealt with, 'phantom' payments continued from the defaulted bank account to the defaulted credit card account for a year. This extends the Limitation period.

Would it? :noidea: I was under the impression that payments had to be made by the debtor or an agent or representative acting for the debtor, not by the lender itself, in which case all banks would be making small payments into defaulted accounts to keep them alive.

A similar issue was discussed on this thread, where a refund was paid into a defaulted credit card account several months after the account was defaulted and no further payments were made by the cardholder: http://www.legalbeagles.info/forums/...142#post316142

As said it would be up to them to prove, this is the part of the act in question

29,(5)
and the person liable or accountable for the claim acknowledges
the claim or makes any payment in respect of it the right shall
be treated as having accrued on and not before the date of the
acknowledgment or payment.

A possible problem may be this :

section 30

2) For the purposes of section 29, any acknowledgment or
payment-
(a) may be made by the agent of the person by whom it is
required to be made under that section ; and
(b) shall be made to the person, or to an agent of the
person, whose title or claim is being acknowledged or,
as the case may be, in respect of whose claim the
payment is being made.

[FlamingParrot]

Re: Statute Barred Defence and tactics of Lowells and others

Could making a SAR request mark you out as someone who has poor records and trigger off a phantom payment for a statute barred debt?

Why should it? It's your lawful right under the DPA to send a Subject Access Request for all data held about you, it's got nothing to do with having a poor credit record or being in default, you could send a SAR if you are still making contractual payments or for a closed account like a loan or card you've paid off.

http://ico.org.uk/for_the_public/personal_information

You have the right to get a copy of the information that is held about you. This is known as a subject access request.


This right of subject access means that you can make a request under the Data Protection Act to any organisation processing your personal data. The Act calls these organisations ‘data controllers’.
You can ask the organisation you think is hold

[mystery1]

Re: Statute Barred Defence and tactics of Lowells and others

It shows how important keeping stuff is. You are supposed to get regular statements. You will get a million letters etc etc.

For those that didn't keep anything yes you should DSAR everyone involved including the alleged payment bank/ card company and if it's not allocated to small claims a part 18 as well, not just for information but to get a statement of truth to go with it.

M1

[Nibbler]

Re: Statute Barred Defence and tactics of Lowells and others

HLoE: "A part payment may be sufficient if it is made by the creditor to himself by agreement with the debtor, out of the debtor's funds in the creditor's hands."

[FlamingParrot]

Re: Statute Barred Defence and tactics of Lowells and others

HLoE: "A part payment may be sufficient if it is made by the creditor to himself by agreement with the debtor, out of the debtor's funds in the creditor's hands."

Payments made using set-off wouldn't be by agreement with the debtor, would they?

HLoE: "A part payment may be sufficient if it is made by the creditor to himself by agreement with the debtor, out of the debtor's funds in the creditor's hands."

...and these wouldn't be the debtor's funds either:

I've also seen cases os Lloyds debiting payments from a closed/dormant/abandoned overdrawn bank account and crediting them to a defaulted credit card account. I don't believe they are permitted to do this under right of offset. In a recent case I dealt with, 'phantom' payments continued from the defaulted bank account to the defaulted credit card account for a year. This extends the Limitation period.

[Amethyst]

Re: Statute Barred Defence and tactics of Lowells and others

mmm tricky one, when you sign up for accounts etc the right of set off is often included in the terms and conditions, so you might be deemed as having agreed to that course of action by signing the agreement, although you didn't specifically instruct that transaction.

[Celestine]

Re: Statute Barred Defence and tactics of Lowells and others

Well this exact scenario came up in a recent 1st Credit stat demand. When I explained to them how the payments had been generated, they agreed that was not acceptable under right of offset and withdrew the demand.