Statute Barred on Overdrafts.

[jon1965]

Re: Statute Barred on Overdrafts.

I will post up some different terms tomorrow so we can see some actual wording. Could be interesting

[Guest]

Re: Statute Barred on Overdrafts.

You really need to support your hypothesis's with some facts

[Guest]

Re: Statute Barred on Overdrafts.

The only ambiguity is that it seems in rare cases the terms may be worded in a way that requires 2 missed payments.

A contractual term cannot be a breach of contract .

So the agreement is either being ended because of the breach or because of the term

This does make a difference when it comes to evaluating the COA

The really odd thing is that in a funny sort of way you are right, in certain cases it can be either.

[charharp]

Re: Statute Barred on Overdrafts.

COA is breach of the contractual terms.

[Tools]

Re: Statute Barred on Overdrafts.

I have edited most of the offensive comments from posts. Please continue this without resorting to personal insults. If they continue then the thread will be moderated.

Thank you

[jon1965]

Re: Statute Barred on Overdrafts.

Just to play silly beggers here are some relevant parts of terms and conditions.
The HBOS loan does say they can cancel after one missed payment subject to any documents needed by law
Credit cards tend to say they can be cancelled but will give you 30 days notice.

Now if we think that missing one payment is a COA because it is a breach of contract there are also lots of other terms that we all often breach. For example, we don't sign the card on receipt, we give someone our pin, we do not keep the card safe at all times so you could argue that all of those are breaches

03 CapOne CCA.pdf
04CCA.pdf
06 Amex CCA.pdf
06ASDACCA.pdf
Halifax CCA.pdf

Just some food for thought

[Guest]

Re: Statute Barred on Overdrafts.

Just to play silly beggers here are some relevant parts of terms and conditions.
The HBOS loan does say they can cancel after one missed payment subject to any documents needed by law
Credit cards tend to say they can be cancelled but will give you 30 days notice.

Now if we think that missing one payment is a COA because it is a breach of contract there are also lots of other terms that we all often breach. For example, we don't sign the card on receipt, we give someone our pin, we do not keep the card safe at all times so you could argue that all of those are breaches

[ATTACH]10511[/ATTACH]
[ATTACH]10512[/ATTACH]
[ATTACH]10513[/ATTACH]
[ATTACH]10514[/ATTACH]
[ATTACH]10515[/ATTACH]

Just some food for thought

Thanks for these, interesting.

Just read BMW (again). this case should be read and re-read IMO, not not dismissed as being irrelevant. There is much commentary on there which is applicable to all contracts and links other authorities which are useful if we are to understand the COA issue.

As said it seems that most agree that the COA will be dependent on the contract on CC and in fact on any credit agreement. This is certainty the case in BMW and all the associated case law and authority referred to in it.

I think as also stated before, the only real issue is if this can be deferred by the issuance of the termination notice in a regulated agreement.

It is interesting to see that many T and cs mention statutory notices within their termination clause, for these at least I think it would be safe to assume that a DN and subsequent termination would be a prerequisite for the creditor to be "able to demand full payment".

This as Jon says raises the problem which like it or not exactly parallels that raised in BMW where at 25 the judge says;

25. In my view, the judge was wrong to think that that decision applied to the present case. In
this case, the right to recover the sum set out in clause 12 did not arise unless and until the
hirer gave notice to terminate the contract. That was a right that he could choose to exercise
or not, but unless he elected to do so, the contract continued in existence and instalments of
hire would have fallen due at the stipulated intervals. Under section 5 of the Limitation Act
1980 time in a case of this kind runs from the date when the cause of action accrues. In this
case, the cause of action to recover the amounts claimed under clause 12 did not accrue on
the customer's default alone, but only upon the election of the hirer to terminate the contract.

Similarly the creditor can chose when to send a DN and indeed after that can choose when to send a termination notice.

this was referred to in the quote from squire sanders. http://www.lexology.com/library/deta...7-21b6701a273e

If the Court of Appeal had come to any other conclusion it would have been contrary to the wording of the CCA. This envisages that the balance does not become due (and cannot be demanded as being due) until after the expiry of the notice period. The Court of Appeal’s decision can also be used in appropriate circumstances by lenders wanting to stop the limitation period running. It seems clear that, subject to an argument that the lender has affirmed the agreement by not taking steps to accept a debtor’s repudiation, termination could be delayed until the end of the term of the agreement. This would allow lenders to delay (most obviously where the debtor is in a difficult financial position or cannot be located) issuing proceedings until the last moment, like BMWFS did, and avoid being time-barred.

Of course it may e that when a regulated agreement comes to court a judge will say that the statute is only a procedural bar, and all this should be disregarded, the COA would then rest purely on the contractual right to demand full payment..

Interesting though

[charharp]

Re: Statute Barred on Overdrafts.

Issuing a default notice is a procedural formality that does not affect limitations. If this wasn't true a creditor could postpone limitations indefinitely just by not issuing a default notice.

all those things listed are a breach of contract but unless it leads to something bad happening how would they find out. I have a friend who received a warning from his credit card company because he had something refunded to his card and it went into credit. He was told he had broken the terms of the contract and they quoted the term he had broken and said because it was the first time they would not suspend his account but they will if it happens again and that he should go to an ATM and withdraw the excess money. They do take action when you break terms.

BMW was different because he was renting the car, it was only when the contract was terminated that all future rental payments became owed. On a loan or credit card you owe the outstanding balance as soon as you spend it and if you miss a payment the creditor reserves the right to demand full repayment. The contract does not have to be terminate first. Sorry but if you can't grasp that concept it really isn't my problem.

[Guest]

Re: Statute Barred on Overdrafts.

Issuing a default notice is a procedural formality that does not affect limitations. If this wasn't true a creditor could postpone limitations indefinitely just by not issuing a default notice.

all those things listed are a breach of contract but unless it leads to something bad happening how would they find out. I have a friend who received a warning from his credit card company because he had something refunded to his card and it went into credit. He was told he had broken the terms of the contract and they quoted the term he had broken and said because it was the first time they would not suspend his account but they will if it happens again and that he should go to an ATM and withdraw the excess money. They do take action when you break terms.

BMW was different because he was renting the car, it was only when the contract was terminated that all future rental payments became owed. On a loan or credit card you owe the outstanding balance as soon as you spend it and if you miss a payment the creditor reserves the right to demand full repayment. The contract does not have to be terminate first. Sorry but if you can't grasp that concept it really isn't my problem.

?
Why do you have to always descend into insults.

All agreements have to be ended before there is any right to demand liquidated damages, this is elementary contract law, otherwise there would be no point in having a contract which permitted repayment over a period, this is not just a feature of a HP agreement

[charharp]

Re: Statute Barred on Overdrafts.

That's true but here is the point that the guys on the other forum didn't understand and it seems neither do you. Limitations runs from the CAUSE OF ACTION not the action itself. As soon as you miss a payment the creditor is free to issue you with a default notice and start proceedings, even though it is unlikely after 1 missed payment because that would be rather aggressive it doesn't make any difference.

BMW was different because he didn't borrow any money, when he missed a payment all that was due was the missed payment because the contract had to be terminated first by both parties. It was only when he missed 2 payments that BMW took this as a request to terminate the contract and accepted it, that was the point all future monies was owed.

On a credit card you owe the money as soon as you spend it, when you break the terms by missing a payment this is COA and limitations starts. The contract does not have to be terminated for a COA, it only has to be terminated for the action to proceed.

[Guest]

Re: Statute Barred on Overdrafts.

That's true but here is the point that the guys on the other forum didn't understand and it seems neither do you. Limitations runs from the CAUSE OF ACTION not the action itself. As soon as you miss a payment the creditor is free to issue you with a default notice and start proceedings, even though it is unlikely after 1 missed payment because that would be rather aggressive it doesn't make any difference.

BMW was different because he didn't borrow any money, when he missed a payment all that was due was the missed payment because the contract had to be terminated first by both parties. It was only when he missed 2 payments that BMW took this as a request to terminate the contract and accepted it, that was the point all future monies was owed.

On a credit card you owe the money as soon as you spend it, when you break the terms by missing a payment this is COA and limitations starts. The contract does not have to be terminated for a COA, it only has to be terminated for the action to proceed.

I think you should support some of this with relevant case law or statute. as I have.

You seem to think that a contract can continue even when all liabilities under it are being recalled, this is wrong at such a basic level, I find it hard to see common ground on which I can begin to explain your error.

[charharp]

Re: Statute Barred on Overdrafts.

If you don't get it that's your problem.

The contract continues that's why late fees and other charges constantly accrue when you stop paying. As per the contract. First they demand the account be put back into line, then they start demanding the whole outstanding balance and then they start saying you will be issued with a default notice if you do not pay ect. Normal progression is nearly every case. The creditor doesn't actually want to default you, the creditor wants you to stick to the contract so they make money!! They don't make any money when they sell the debt to a DCA at 10-20% they lose! You seem to have this idea that a creditor is shark who is just waiting for the slightest mistake so they can default you, it's just not true.

[jon1965]

Re: Statute Barred on Overdrafts.

Charharp
It seems to me that you have a very narrow definition as to what money is...does it exist?
When the bank of England started quantitative easing did they actually print billions of notes and if so what did they do with it.
It seems to me that money is virtual, I use a credit card to buy something , the credit card company give a note to the retailer who then can use that to buy more stock. There is no physical money involved

Then we come to COA, by your own admittance a breach is a breach, be it going into credit or missing a payment. What causes the distinction between a breach that triggers limitations and a breach that doesn't. I would suggest that it would be a letter from the company giving notice to close the account and demanding payment. If we take that point, which breach is the actual trigger..the 1st, 2nd, 3rd, 10th, or the letter demanding payment?

[CleverClogs]

Re: Statute Barred on Overdrafts.

If you don't get it that's your problem.

It isn't.

They don't make any money when they sell the debt to a DCA at 10-20% they lose!

They don't.

They write off the bad debt against their tax liability.

[jon1965]

Re: Statute Barred on Overdrafts.

If you don't get it that's your problem.

The contract continues that's why late fees and other charges constantly accrue when you stop paying. As per the contract. First they demand the account be put back into line, then they start demanding the whole outstanding balance and then they start saying you will be issued with a default notice if you do not pay ect. Normal progression is nearly every case. The creditor doesn't actually want to default you, the creditor wants you to stick to the contract so they make money!! They don't make any money when they sell the debt to a DCA at 10-20% they lose! You seem to have this idea that a creditor is shark who is just waiting for the slightest mistake so they can default you, it's just not true.

Statute says that for a regulated agreement they can not demand the early full repayment UNTIL a S87 DN is issued
In my experience with cards and loans (and I have a lot) once the DN has been issued the fees stop