Good evening all

[Rarus]

My name is Darran im 49 and i like talking to people :tinysmile_twink_t2:

For 30 years i ran my own business,s inc international , so i have some legal knowledge but by no means an expert.

I have been reading topics on this site for many years and found it extremely helpful so i decided to stop lurking and show myself.


Im afraid i have a question about statute Barred debts (not mine but a friend ..... no really i swear!), its a simple one really so i will outline it and hope some
one could be so kind as to point to the right area.

Basically a friend appealed against a recent CCJ as they never received the summons (it was sent on the 18th December 2014) so probably went missing in the post, anyway, the friend sent a SAR to the collection agents solicitors and they sent back a load of nameless templates and other spurious junk, the one thing they did not send was a copy of the original CC contract (this would hopefully show terms and conditions on how long the debtor would get time wise before a default notice was issued) unfortunately there was no copy of the original contract with the SAR info . The friend has recently been to County court for the appeal and the claimants solicitor was quoting from the BMW v Hart case when the friend said that this depended on the terms in the contract and that the friend had not received the contract in the SAR so until the terms could be seen which would show whether the debt was SB or not the case was stalemated, The judge ruled from the BMW v Hart case (section 25) and dismissed the appeal , now heres the interesting part, the friend opened their emails today and found a last minute submission to the court with a statement from the solicitor and in this submission was............................yes you guessed it a copy of the front of the original contract , strange how there was no copy of the rear of the contract which stipulates the period of none payment before default notice is issued,.

Personally i have found this a direct perversion of the course of justice and absolutely disgusting and devious behaviour from a so called professional legal person. If the judge could have read the terms im sure clarity would have been had for all.

My question really is.
1. Is this not defrauding the court ?
2. They surely have withheld information from my friend even though they paid for the SAR info

Any help would be greatly received and passed on to my friend.

Regards
Rarus

[Kati]

Re: Good evening all

Hi Darran,
welcome to LB!!
I'm sure you will get lots of help and advice from our knowledgeable Beagles xx

[Rarus]

Re: Good evening all

Thank you Kati its a pleasure to be here.

[nemesis45]

Re: Good evening all

Hi,
I'm dealing with an almost identical here on Beagles this evening.
BMW - v - Hart dealt with an Hire Purchase Agreement ( loan secured on goods).

A subject access request is very unlikely to produce a copy agreement as they are largely generic in nature and there is little personal data included, there is no specific obligation or requirement to supply the agreement with a SAR included in the DPA 1998.
Sending SARs to claimants solicitors, claimants is really a waste of £10.00 they can only provide " personal data " that they hold on the data subject from the date they acquired the debt.

A SAR should go to the original Creditor.

The arguments continue daily on their Lordships intentions in their judgement some interpret that it is the date of termination some the default date others that the date the creditor is first able to demand repayment in full and contend that the date a first demand for payment in full is issued to the debtor.

Careful checking of dates on this last letter and the document is need before accusations of any " defrauding the court " which could amount to contempt, perjury or both.

nem

[Rarus]

Re: Good evening all

Thankyou for your reply,
The last letter was actually an email sent at 5.30pm on the day before the appeal hearing less than 24 hours notice.

On the point of the SAR , yes it was sent to the debtor and not original creditor but the debtor has the original contract as it was sent in the 5.30pm email but crucially the rear of the contract was not copied so the actual contract details could not be read, surely if when they are sent an SAR and are in fact in possession of said contract they must send a copy if not it makes a mockery of pre-disclosure and therefore any defence?

[nemesis45]

Re: Good evening all

A SAR " Subject Access Request" is for " personal data " relating to a specific data subject, this part is key:
A 40 day time scale to comply.

Terms & Conditions are by nature generic and every holder of the same type of account will have the same Ts & Cs.

The provisions of sections 77/78/79 The Consumer Credit Act 1974 ( as amended) are for the provision of the agreement this is what should have been done. A 12 + 2 Working Day Time Scale for compliance.
CPR 31.14 requests all documents mentioned in the particulars of claim to be provide within 7 days/

One has to follow procedure the CCA 1974 request and the Data Protection Act 1998 should not be confused.

Data held by the debt purchaser is minimal anyway, debt is sold in portfolio lots with the bare minimum of data.

Had the proper procedure been followed a different scenario would have evolved I think.


nem

[Rarus]

Re: Good evening all

40 days was given for the SAR , but the contract was not in the SAR info even though the solicitors were clearly in possession of it, and this why i say they deliberately withheld crucial info.

After this BMW v hart case it seems now that creditors can wait years before issuing a default which total defeats the original point of the Statute barred rule , 6 years was the period set because if a debtor cant be bothered to chase a debt to CCJ in 6 years then its their own fault now it seems 1 misguided judge who obviously doesn't understand that 6 years is a long time has messed another protection law up and basically allowed the huge global corporate machine to ride ruffshod over the common man , yet again.

[Rarus]

Re: Good evening all

Sooo my next question .................can my friend appeal against the appeal decision and how do they find the original credit default date as its over 6 years and not showing on their credit file anywhere ??
Infact the default date is now shown as 3 days ago ?
Thanks.

[nemesis45]

Re: Good evening all

There are rules/technical guidance issued by the Information Commissioners Office which deal the how/why and when of placing defaults, the when is within 6 months of cause of action, e.g. cessation of contractually required payments.
Your view on BMW - v - Hart is totally wrong it deals with when the Statute of Limitations Act 1980 Section 5 6 year period starts in regard to Regulated Hire Purchase Accounts the ambiguity seen is that some see the termination date, some the default date, so the first date the creditor can Demand Payment in Full , there is no question of extending any limitation period.

The Lord Justices of Appeal made the decision on BMW not "some misguided judge " as you put.
As to your take on the SAR I had hoped that I had made it clear that there is no obligation for an agreement to be supplied with the SAR, this is covered by sections 77/78/79 of CCA 1974 (as amended) it matters not if the solicitors had it or not.
Please explain what you mean in post 8 re the default date, there can only ever be one on any debt.
A SAR to the original creditor (records are kept for 6 years after an account is closed).to get the " Personal Data" held should show up the default date.

The original " appeal" was this heard by a circuit judge i.e. His or Her Honour Judge XXXXXX?
English Civil Law is based on what is reasonable and on the balance of possibilities. Case Law
enables the scope of Civil Law to grow and evolve almost on a daily basis.

nem







nem

[Rarus]

Re: Good evening all

Thanks for that, firstly the default date was actually 7 months after the cessation of payments which took the default date into 2009, but now when my friend looked on their credit report it states the default date was the 15th of this month which was the actual appeal date ?

[Rarus]

Re: Good evening all

Your view on BMW - v - Hart is totally wrong it deals with when the Statute of Limitations Act 1980 Section 5 6 year period starts in regard to Regulated Hire Purchase Accounts the ambiguity seen is that some see the termination date, some the default date, so the first date the creditor can Demand Payment in Full , there is no question of extending any limitation period.

My point is simply that it seems the creditor can choose at will when the default date is, could be 1 month or 4 years , this fact alone extends the 6 year limitation , surely there should be a shceduled timescale for the amount of time before a default itself becomes void, as it stands i cant find a limit on how long a creditor has before they have to issue only the fact it seems its up to them to list such timescale in the original contract.

[nemesis45]

Re: Good evening all

Do you have a screen print of the CRA file please if so can you post a redacted copy showing all the dates.
The ICO Guidance is 6 months for recording a default 1 month over is of little or no consequence.
The appeal was just 3 days ago???

nem

[Rarus]

Re: Good evening all

I will ask my friend for a copy and then scan it and post it , thanks.
ICO guidance is 6 months, but you can go longer if you like ??? that's the problem with guidance its not law so can be abused, if its 6 months it should be 6 months and no longer.
Yes the appeal was actually 2 days ago , Thursday 16th im informed.

I appreciate the time you are spending answering and thank you for it.

[nemesis45]

Re: Good evening all

My point is simply that it seems the creditor can choose at will when the default date is, could be 1 month or 4 years , this fact alone extends the 6 year limitation , surely there should be a shceduled timescale for the amount of time before a default itself becomes void, as it stands i cant find a limit on how long a creditor has before they have to issue only the fact it seems its up to them to list such timescale in the original contract.

NO, I have explained that defaults Should Be Placed within 6 month of the cause of action.
Default have a " life" of 6 years after which they are removed from Credit Reference Files Paid Or Not.
The " break down " of an agreement triggers the issue of a Default Notice
giving the debtor a time scale in which to return the account to " Normal Status" e,g, by paying the arrears. often an arrangement is made to pay reduced amounts for a period and to return to contractual payments at a later date some creditor will not register a default at this time.
A default is caused by the debtor breaching the agreement the creditor cannot predict when this may happen.

Most terms and condition layout clearly what will happen if a debtor default on payment, it maybe up to 3 missed payments,agreements vary.
Now if you could answer the questions in post 9# we may go a little further.
nem

[Rarus]

Re: Good evening all

My friend said that the default date which was originally 14/05/2009 had changed to last Thursdays date, but i have just asked them again and it seems they were mistaken and it was the date the file was updated.