changing a debt court defence question

[Mark205]

Hi all

I’ve recently been taken to court by a debt management company, I received the court documents on the 23^rd April 2018 and entered a defence of statue barred as I believed it was longer than 6 years however this debt was for a bank overdraft the last payment being on the 16^th April 2012, however today I received documents from the dept management solicitors stating that the cause of action on the account would be the 9^th of October 2012 when the bank closed the account and there for within the 6 year time frame.

However the debt management solicitors have stated that their client having taken assignment of the material debt cannot obtain a copy of any agreement or default notice for credit because this does not fall into the consumer credit act 1974 (which I also quoted in my defence) however they are in the process of getting the original documentation from the bank

My question is can I change my defence or am I just blowing in the wind!? Any help would be most appreciated

[Amethyst]

They are likely to be able to argue against the statute barred element of your defence with it being an overdraft and the last payment being within a couple weeks of the 6 years before they brought the claim... even with a credit card or loan it wouldn't be taken until 2/3 months after last payment when the account defaults, overdrafts take longer to default as there isn't a set payment required each month.

Who is the claimant?

Who was the original bank and what type of account ?

How much approx is the claim for?

Could you post a copy of the claim and of the defence you entered pls. ( remove personal details)

[Mark205]

claimant is Lowell , original bank was Lloyds current account and the amount is for £1,230
defence was-
1. I received the claim from Northampton County Court on 23rd
April 2018
2. Each and every allegation in the Claimants statement of case
is denied unless specifically admitted in this Defence.
3. This claim appears to be for a Loan agreement regulated under
the Consumer Credit Act 1974.
4. It is denied that the Defendant has previously entered into an
agreement with Claimant for provision of credit.
5. The Claimants statement of case fails to give adequate
information to enable me to properly assess my position with
regards the claim.
6. The Claimant’s Particulars of Claim fail to state when the
agreement was entered into.
7. The Claimants statement of case states that the account was
assigned from Lloyds Bank to Claimant in 2015. The Defendant does
not recall receiving notice of this assignment.
8. It is denied that Lloyds Bank served any Default notice on the
Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant
is required to prove that a compliant Default Notice was served
upon the Defendant. The Claimant is required to prove that the any
Default notice relied upon complied with the requirements of
s88(4A) Consumer Credit Act 1974 and that the notice was in the
prescribed form as required by The Consumer Credit Enforcement
Default and Termination Notice Regulations 1983.
9 .On the 2nd April 2018 I sent a request for inspection of
documents mentioned in the claimant’s statement of case under
Civil Procedure Rule 31.14 to Claimant’s Solicitor. I requested
the Claimant provide copies of the Agreement, Default Notice and
Notice of Assignment.
10. Claimant’s Solicitor has not sent any of these documents to
me.
11. On the 2nd April 2018 I sent a formal request for a copy of
the original agreement to Claimant pursuant to section [77 or 78]
of the Consumer Credit Act 1974 along with the statutory £1 fee.
12. The Claimant has failed to comply with [s77 (1) / s 78 (1)]
Consumer Credit Act 1974 and by virtue of [s77 (4) / s 78 (6)]
Consumer Credit Act 1974 cannot enforce the agreement.
13. Under Civil Procedure Rule 16.5 (4) where the claim includes a
money claim, a defendant shall be taken to require that any
allegation relating to the amount of money claimed be proved
unless he expressly admits the allegation. Therefore, it is
expected that the Claimant be required to prove the allegation
that the money is owed as claimed.
14. I request the court orders the Claimants to provide the
necessary documentation in order for me to fully plead my case
else the Claim should stand struck out.
15. I would also like to point out that the only loan I have had
with Lloyds Bank was in 2009 which Unless they can provide
evidence that payment or written
contact from me has taken place within the last 6 years, then
under section 5 of the Limitation Act 1980, this claim can no
longer be taken to court As result of it being statue barred Under
Section 3.15 of the Office of Fair Trading Debt Collection
Guidance, it says that it is unfair to pursue debts where the
creditor has not made any contact during the relevant period.