Statute Barred on Overdrafts.

[charharp]

Re: Statute Barred on Overdrafts.

I still don't understand what andy58 is arguing about. It seems he thinks limitations runs from default date, although he has no evidence to support this and it flies in the face of advice from all debt charities, official advice and real life cases.

[jon1965]

Re: Statute Barred on Overdrafts.

Charharp
To be honest i do not see any point in continuing as whatever is said you will disagree.
Just for the record though, Sequenci works in the industry and knows his stuff and from my experience with him if the Brig had even half a leg to stand on he would have been there every moment of every day.Again I have to be honest that from experience if the Brig told me night followed day I would need to check. Maybe once he was good , I fear that for some reason he has lost his edge.
There are comments on that thread that broadly agreed with Dodge and I suggest you reread what has been written. A link was even posted that said the COA for overdrafts was the point that it was recalled. From what I saw there were only 2 people that held your view and that was you and the Brig, everyone else thought you were mis informed although they may not have exactly agreed with Dodge.

Right now it really doesn't matter if the clock starts at DN/Termination . Until the bank or the contract tells you that you have breached the agreement there can be no COA.

I understand what you want to achieve and why and who knows if they make a claim and you defend as SB you might win (or they might roll over).
SB or not i doubt you have a hope in hell of getting that default marker moved and worse case scenario is that you end up admitting liability they get a CCJ and your credit report is screwed for another 6 years.
Do you have the funds to take this all the way to the court of appeal if needed.
I know how frustrating it is when you have an idea and people say you are wrong, it has happened to me on a couple of occasions but you live and learn.

Another issue with forums is that people often only appear when they need help, once the case is over and done with they do not return to update

[jon1965]

Re: Statute Barred on Overdrafts.

I still don't understand what andy58 is arguing about. It seems he thinks limitations runs from default date, although he has no evidence to support this and it flies in the face of advice from all debt charities, official advice and real life cases.

I have read cases where debt purchasers are claiming that limitations start from default (on here somewhere I think). I have yet to see official advice that gives a definitive date for the start but there is some logic in saying that once the creditor is able to issue a DN then time starts. Sadly i suspect that we may see more erosion into consumer rights and an even later date become the norm

[charharp]

Re: Statute Barred on Overdrafts.

Charharp
To be honest i do not see any point in continuing as whatever is said you will disagree.
Just for the record though, Sequenci works in the industry and knows his stuff and from my experience with him if the Brig had even half a leg to stand on he would have been there every moment of every day.Again I have to be honest that from experience if the Brig told me night followed day I would need to check. Maybe once he was good , I fear that for some reason he has lost his edge.
There are comments on that thread that broadly agreed with Dodge and I suggest you reread what has been written. A link was even posted that said the COA for overdrafts was the point that it was recalled. From what I saw there were only 2 people that held your view and that was you and the Brig, everyone else thought you were mis informed although they may not have exactly agreed with Dodge.

Right now it really doesn't matter if the clock starts at DN/Termination . Until the bank or the contract tells you that you have breached the agreement there can be no COA.

I understand what you want to achieve and why and who knows if they make a claim and you defend as SB you might win (or they might roll over).
SB or not i doubt you have a hope in hell of getting that default marker moved and worse case scenario is that you end up admitting liability they get a CCJ and your credit report is screwed for another 6 years.
Do you have the funds to take this all the way to the court of appeal if needed.
I know how frustrating it is when you have an idea and people say you are wrong, it has happened to me on a couple of occasions but you live and learn.

Another issue with forums is that people often only appear when they need help, once the case is over and done with they do not return to update

You've read it all wrong, I am completely open to overdrafts not being barred until 6 years after they were recalled, I wouldn't want to test it in court. I don't understand how you can be so mistaken, those guys on that forum are arguing that limitations is from default date, whether it's loans or overdrafts.

The bit where you say the bank has to tell you there has been a breach before COA is completely wrong, one of the cases those guys posted proved this when the judge ruled that limitations runs from when the breach occurs and not when the creditor takes action other wise the creditor could suspend limitations indefinitely which would be illegal. Judges words not mine.

How can you tell me I'm wrong when you don;t even know what the opposing arguments are? You seem to think the argument on that thread was whether overdrafts are SB from date of recall or some prior breach. The argument was SB from first missed payment V default date.

[charharp]

Re: Statute Barred on Overdrafts.

I have read cases where debt purchasers are claiming that limitations start from default (on here somewhere I think). I have yet to see official advice that gives a definitive date for the start but there is some logic in saying that once the creditor is able to issue a DN then time starts. Sadly i suspect that we may see more erosion into consumer rights and an even later date become the norm

I read a lot where DCA's claim that limitations runs from default date and like their phantom payments and other lies it's just a ploy to get you to pay. The only outcomes I have seen in these cases is the DCA folding when sent SB letter.

[jon1965]

Re: Statute Barred on Overdrafts.

Oh dear
Please provide links to DCA's folding , remember that they may fold for many reasons that have nothing to do with limitations etc.

You are confusing COA with action. I said that until the bank or the contract says that you have breached there can be no cause, the action then has to be brought within 6 years.

I am afraid it is in black and white that you believe that the limitations clock starts from last activity on the account.

I know exactly what the question was by the way and where it started. It started with a post asking when did the clock start ticking as there were differing opinions around ranging from the one the Brig said (last payment) to time of default on credit file. The consensus was that for loans and credit cards every case was different and depended on the contract and for OD's it was probably from the time of recall. Dodge then presented an argument that said actually it would be time of default and gave his reasons.

You then came here and still got an answer that you didn't like. Sorry

[charharp]

Re: Statute Barred on Overdrafts.

Oh dear
Please provide links to DCA's folding , remember that they may fold for many reasons that have nothing to do with limitations etc.

You are confusing COA with action. I said that until the bank or the contract says that you have breached there can be no cause, the action then has to be brought within 6 years.

I am afraid it is in black and white that you believe that the limitations clock starts from last activity on the account.

I know exactly what the question was by the way and where it started. It started with a post asking when did the clock start ticking as there were differing opinions around ranging from the one the Brig said (last payment) to time of default on credit file. The consensus was that for loans and credit cards every case was different and depended on the contract and for OD's it was probably from the time of recall. Dodge then presented an argument that said actually it would be time of default and gave his reasons.

You then came here and still got an answer that you didn't like. Sorry

This all seems so pointless you don't even know what my argument is so how can judge if it is wrong or not.

Mistake 1: First you say no breach can occur until a bank says it has, I said a breach occurs when you break the contract. You now change your mind and say its when the bank or the contracts says you have breached. You changed your stance from disagreeing with me to a point which encompasses both mine and yours.

Mistake 2: I never said limitations runs from last activity on the account I said it runs from first missed payment.

Mistake 3: You keep mixing a general limitations argument with one on overdrafts. I have been told that all overdrafts are accepted as SB 6 years after non payment and SUGGESTED a theory as to why that is. Overdrafts are more complicated and I SUGGESTED AS A THEORY than because overdrafts are repayable without a breach limitations could be deferred to last activity on the account.

I wouldn't be here asking for advice on SB from recall date v breach date if I thought that I would just send of the SB letter.

I'm not frustrated that you disagree with me that's fine, I'm frustrated because you don't even understand what my argument is to begin with so how can you possibly pass judgement on it.

[charharp]

Re: Statute Barred on Overdrafts.

I came on here to find someone who had dealt with similiar cases to tell me what the outcome was. All this theory talk is just nonsense from people who have no experience in similiar cases and just want to be part of a discussion.

[CleverClogs]

Re: Statute Barred on Overdrafts.

So you think limitations runs from when a DN is issued?

No, as there may be no cause of action if the debtor takes the steps required to remedy the breach of contract.

The limitation period starts when the notice period in the DN has expired with no response by the debtor.

[Guest]

Re: Statute Barred on Overdrafts.

Just been reading the argument over the way. There is a lot of case law an authority on that thread, some of which is also on here.

"One of the main points is this,
This expression "cause of action" has been repeatedly the subject of decision, and it has been held particularly in Hemp v. Garland 4 QB
519, decided in 1843, that the cause of action arises at the time when
the debt could first have been recovered by action. The right to bring
an action may arise on various events, but it has always been held that
the statute runs from the earliest time at which an action could be
brought."

The thread OTR has over 600 posts most of which try and explain the meaning of this to you and a couple of others, I am loathe to reproduce the reasoning here, however.

The sol concerns an "action" as any proceedings in a court" (section 38). So when we are talking about "cause of action" we are talking about an action in court, in this case of recovery of liabilities claimed after termination of agreement.

The SOL is not only about ensuring the debtor does not have to worry about old debts, it is also about the creditor being given 6 years to claim, hence the earlier quote.

Yes the cause of action can run from the breach of an agreement, often it does, however there may be contractual matters that will prevent the creditor from being able to reclaim, difficulties because of the way the contract is made or even because common law(or statute) does not allow the contract to abandoned and sums under it recalled.

In these cases the cause of action starts when the creditor is "able to make a claim".

This is all well known and understood, the point raised in BMW was not this, the bone of contention there was that the point where the creditor could claim was altered by the idea that he could "elect" to postpone it further via a term in the agreement.

As said unless there is someone else on here that wish to discuss this i see no point in continuing for your benefit,you have been offered this information before plainly.

In addition I happen know some of the site team from over the road personally, and have inquired into this, and I can assure you that when you say they agree with your ideas, you are mistaken, in fact the opposite is true.

sorry if this appears rude.

[charharp]

Re: Statute Barred on Overdrafts.

Sorry you said breach is when bank or contract says it was. It's wrong though, only the contract can say you have breached it's terms the bank can't just decide you have breached it for a condition that is not in the contract. Recalling an overdraft is not when a bank has decided you have breached the contract, as I have previously said no breach is required to recall an overdraft.

[charharp]

Re: Statute Barred on Overdrafts.

Just been reading the argument over the way. There is a lot of case law an authority on that thread, some of which is also on here.

"One of the main points is this,
This expression "cause of action" has been repeatedly the subject of decision, and it has been held particularly in Hemp v. Garland 4 QB
519, decided in 1843, that the cause of action arises at the time when
the debt could first have been recovered by action. The right to bring
an action may arise on various events, but it has always been held that
the statute runs from the earliest time at which an action could be
brought."

The thread OTR has over 600 posts most of which try and explain the meaning of this to you and a couple of others, I am loathe to reproduce the reasoning here, however.

The sol concerns an "action" as any proceedings in a court" (section 38). So when we are talking about "cause of action" we are talking about an action in court, in this case of recovery of liabilities claimed after termination of agreement.

The SOL is not only about ensuring the debtor does not have to worry about old debts, it is also about the creditor being given 6 years to claim, hence the earlier quote.

Yes the cause of action can run from the breach of an agreement, often it does, however there may be contractual matters that will prevent the creditor from being able to reclaim, difficulties because of the way the contract is made or even because common law does not allow the contract to abandoned and sums under it recalled.

In these case the cause of action starts when the creditor is "able to make a claim".

This is all well known and understood, the point raised in BMW was not this, the bone of contention there was that the point where the creditor could claim was altered by the idea that he could "elect" to postpone it further via a term in the agreement.

As said unless there is someone else on here that wish to discuss this i see no point in continuing for your benefit,you have been offered this information before plainly.

In addition I happen know some of the site team from over the road personally, and have inquired into this, and I can assure you that when you say they agree with your ideas, you are mistaken, in fact the opposite is true.

sorry if this appears rude.

I have no idea what your argument is seeing as though you change it.

State clearly when you think limitations runs from?

So you have found some loophole that goes aginst NDL and all other legal rulings advice that limitations runs 6 years after first missed payment?

NDL and all other debt charities are all wrong and you are right even though you have no evidence?

[charharp]

Re: Statute Barred on Overdrafts.

http://www.pinsentmasons.com/PDF/Limitation.pdf

Read that, limitations runs 6 years from date of breach. Clear as day.

[charharp]

Re: Statute Barred on Overdrafts.

Quote from that site..

''The cause of action occurs as soon as the contract is breached''

This is fact.

[charharp]

Re: Statute Barred on Overdrafts.

You are making the same mistake as dodge and others by not being able to distinguish between COA and action. It's the cause of action (breach of contract) that starts limitations not when the action is brought. That's very easy for me to understand I don't get why you and others have a hard time understanding that.