Lowell statue barred case dismissed by judge

[Woowoo78]

Hi Everyone
I have just had my case dismissed by the judge and wanted to let you know on what grounds incase it helps anybody.
I had a catalogue debt where the last payment was made in Jan 2010. Lowell disputed this was statue barred as the default was issued in see 2010.
The judge agreed with Lowell's solicitor that the cause of action accrued on the default date (9 months after last payment) but dismissed the case as Lowell couldn't provide any evidence of the actual default notice proving the date they specified.
I defended the case after advice from cab and national debt helpline ( saying the clock starts on your last payment or acknowledgment made) but the judge disagreed this.
I hope this helps.

[charitynjw]

Re: Lowell statue barred case dismissed by judge

Hi Everyone
I have just had my case dismissed by the judge and wanted to let you know on what grounds incase it helps anybody.
I had a catalogue debt where the last payment was made in Jan 2010. Lowell disputed this was statue barred as the default was issued in see 2010.
The judge agreed with Lowell's solicitor that the cause of action accrued on the default date (9 months after last payment) but dismissed the case as Lowell couldn't provide any evidence of the actual default notice proving the date they specified.
I defended the case after advice from cab and national debt helpline ( saying the clock starts on your last payment or acknowledgment made) but the judge disagreed this.
I hope this helps.

Hi Woowoo78, & thanks for the info.
It's always good to get feedback from the 'front line'. (Court cases).
The advice you received from CAB & NDL was clearly incorrect.....the trigger date for SB cannot be from 'last payment', as at this point there would not be a breach of the contract.
So the trigger date (or in other words, the date on which the cause of action accrued) must be a later date.
Exactly how that is determined is a matter for debate, but personally, for a running-type credit account, I think that allowing 9 months is pushing it.
Did you use any case law to argue your corner?

[Diana M]

Re: Lowell statue barred case dismissed by judge

I have just had my case dismissed by the judge and wanted to let you know on what grounds incase it helps anybody.
I had a catalogue debt where the last payment was made in Jan 2010. Lowell disputed this was statue barred as the default was issued in see 2010.
The judge agreed with Lowell's solicitor that the cause of action accrued on the default date (9 months after last payment) but dismissed the case as Lowell couldn't provide any evidence of the actual default notice proving the date they specified.
I defended the case after advice from cab and national debt helpline ( saying the clock starts on your last payment or acknowledgment made) but the judge disagreed this.

Have I understood your post correctly?

The DJ dismissed the claim because although he agreed with Lowell's legal argument that the cause of action is the DN, they (Lowells) were unable to provide any evidence of the date the DN was served so he (DJ) accepted your argument that it was SB?

Or did the DJ reject your Defence regardless of the fact the Claimant wasn't able to prove their case?

Di

[Woowoo78]

Re: Lowell statue barred case dismissed by judge

I didn't use any case law as I couldn't find any, I just used the limitation act 1980.
Sorry, they did state from the first missed payment not the actual last payment (my error) in hindsight I should have asked for some advice from here before submitting my defence but I thought I had an absolute case.

[Woowoo78]

Re: Lowell statue barred case dismissed by judge

The judge didn't dismiss my defence, he said my defence was that the debt was statue barred under the limitations act 1980 and the burden of proof lays with the claimant. As Lowell where unable to produce any evidence at all of the date they state the default was served he cannot be sure on the probability of doubt that the date stated was correct.
The dc said he was 50/50 and allowed the solicitor 10 minutes to try and obtain the records but when he couldn't he said he took no pleasure in having to dismiss the case

[charitynjw]

Re: Lowell statue barred case dismissed by judge

I didn't use any case law as I couldn't find any, I just used the limitation act 1980.
Sorry, they did state from the first missed payment not the actual last payment (my error) in hindsight I should have asked for some advice from here before submitting my defence but I thought I had an absolute case.

It appears that you may have been given a very lucky break.
It is not uncommon that a copy of the DN is unavailable.
In many cases, it would appear that the Claimant needs only to show evidence that, according to the record history, a DN was sent on (such & such a date), & that the procedure for doing so was (so & so), & the type of Notice used was (they produce a generic copy absent your personal data).
This, supported by a signed statement of truth, is usually accepted as admissible evidence.

[Woowoo78]

Re: Lowell statue barred case dismissed by judge

Yes I agree, I had a very lucky break.
I think the judge would have accepted what you state above if it had been provided but all they had was a statement of truth stating it was issued on our around this date but no records are available.
I can't understand how the default issue date is when the clock starts though, surely if this is the case creditors could wait 2/3/4 years before issuing the default giving them well over 6 years to pursue the debt

[Diana M]

Re: Lowell statue barred case dismissed by judge

The judge didn't dismiss my defence, he said my defence was that the debt was statue barred under the limitations act 1980 and the burden of proof lays with the claimant. As Lowell where unable to produce any evidence at all of the date they state the default was served he cannot be sure on the probability of doubt that the date stated was correct.
The dc said he was 50/50 and allowed the solicitor 10 minutes to try and obtain the records but when he couldn't he said he took no pleasure in having to dismiss the case

He may have got no pleasure in dismissing the claim but he did the right thing nevertheless which is encouraging.

An equally wise DJ once said "we're here to judge facts not morals".

Well Done You for going into court to stand up for your legal rights. That's not easy when you know you're likely to face a headwind of prejudice against perceived 'debt avoiders'.

Justice prevailed which is what matters most.

Thank you for sharing your story

Please stick around to share it and what your learned from your experience with other LIPs who find themselves in the same daunting shoes as you did today.

Di

[charitynjw]

Re: Lowell statue barred case dismissed by judge

I can't understand how the default issue date is when the clock starts though, surely if this is the case creditors could wait 2/3/4 years before issuing the default giving them well over 6 years to pursue the debt

It would appear that these Claimants often refer to the case of BMW Financial v Hart (2012).
Although this concerned an agreement which was not regulated by the Consumer Credit Act, & was decided with reference to the contract terms particular to that case, Debt Purchase Claimants have apparently used it successfully in cases concerning regulated agreements as well.

[Diana M]

Re: Lowell statue barred case dismissed by judge

creditors could wait 2/3/4 years before issuing the default giving them well over 6 years to pursue the debt

The ICO has other ideas about that issue

Di

[Celestine]

Re: Lowell statue barred case dismissed by judge

The ICO advises that defaults should be recorded between 3-6 months from last payment.

http://www.scoronline.co.uk/sites/de...ment_final.pdf


The date of default recorded on the file would normally be the date on which a decision tofile a default becomes effective, e.g. 28 days from the date of the default notice.

(Just to emphasise difference between a default notice and a default recorded to your credit file)

[charitynjw]

Re: Lowell statue barred case dismissed by judge

The ICO has other ideas about that issue

Di

The ICO advises that defaults should be recorded between 3-6 months from last payment.

http://www.scoronline.co.uk/sites/de...ment_final.pdf


The date of default recorded on the file would normally be the date on which a decision tofile a default becomes effective, e.g. 28 days from the date of the default notice.

(Just to emphasise difference between a default notice and a default recorded to your credit file)

How would ICO guidance stack up against BMW/Hart?
(Not that I'm doubting you lovely ladies........gawd forbid!)

[Celestine]

Re: Lowell statue barred case dismissed by judge

BMW/Hart was for car finance and there was greater doubt as to when/how the default date is set.

A catalogue debt is totally different and the date of default should be easier to agree upon. I'd be very concerned to see BMW being used to successfully remove Limitation in credit card/catalogue claims. What court was this and who was the Judge please?

[Nibbler]

Re: Lowell statue barred case dismissed by judge

How would ICO guidance stack up against BMW/Hart?
(Not that I'm doubting you lovely ladies........gawd forbid!)

ICO guidance is in relation to a default on your credit files, not a default notice under a CCA or contract. While there can be a relation between the two in timing in a practical sense in many cases, they are distinctly different legal issues and entities.

The timing of a credit file default and the ICO's opinion on when that should fairly happen under the DPA prescribes no legal limit on when a creditor must issue a DN under the CCA for example.

So even if you extrapolate the faulty logic of applying BMW vs Hart to CCA agreements (cards/catalogues etc), the ICO guidelines on when a credit file default should be applied have no bearing on the cause of action in a Limitation Act case.

[Woowoo78]

Re: Lowell statue barred case dismissed by judge

This was Judge Beck at Reigate cc.
The dj did give the solicitor a grilling about they should know this was a vital piece of the case and shouldn't have proceeded without this.