Statue of limitations??

[Boogiemaster]

Statue of limitations

Does it go by last payment or default date because Lowell's seem to think its default date?

Because if it is last payment then mine is already statue barred and my wife's will be on the 14th of March.

Thanks

[labman]

Re: Statue of limitations??

My understanding is that it goes from the date you actually default. Assuming your last payment was made on time, you would be in default for the first time one month after that (your first missed payment). You then have a further 6 years with no acknowledgement of the debt until it is Statute Barred.

[miliitant]

Re: Statue of limitations??

typical lowells crap

get them to put that in writing

the statute of limitations goes from the cause of action, that would be when you missed the last contractual payment

missed payment 30 january
cause of action would be 30 feb six years start from this date, not the date the default was recorded

[Boogiemaster]

Re: Statue of limitations??

Well its statue barred now and I told them if they think it isn't to take me to court but they said they don't want to.

So they said they will carry on sending me letters so I said cool I will carry on wiping my backside with them

Thanks for the replies.

[miliitant]

Re: Statue of limitations??

you send them the statute barred template, they then have to back off

i bet they never put the default date crap in writing did they

bet it was a phone drone
------------------------------- merged -------------------------------
The debts never end (unless in Scotland), but after 6 years of zero activity they become statute barred under section 5 of the Limitations Act.
The important thing here is the lack of activity either by payment or acknowledgement.
------------------------------- merged -------------------------------
Dear Sir/Madam

Acc/Ref No 4563210025897412

You have contacted us regarding the account with the above reference number, which you claim is owed by ourselves.

We would point out that under the limitation act 1980 Section 5 “an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

We would also point out that the OFT say under their debt collection Guidance on statute barred debt that “it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period”.

The last payment of this alleged debt was made over six years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from us in the relevant period under Section 5 of the Limitation Act, we suggest that you are no longer able to take any court action against us to recover the alleged amount claimed.

The OFT Debt Collection Guidance states further that “continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred could amount to harassment contrary to CPUTR2008

We await your written confirmation that this matter is now closed and that no further contact will be made concerning the above account after that last letter.

We look forward to your reply.

Yours faithfully

[Guest]

Re: Statue of limitations??

This is not a simple question.
My understanding is that the cause of action is triggered by repudiatory breach.
The date the default notice is sent is not necessarily the same as the date that the contract suffered a breach severe enough to be considered repudiatory.
It has to be remembered that the DN is for information only, it advises the debtor that the account is in default.
Most would agree that a single missed payment would not constitute a default situation, so in my opinion would not be the cause of action, neither in my opinion could the date on the DN for the afore mentioned reason.
The actual default date and cause of action must therefore; lie between the two.
The ICO guidelines recommend that an indication that the account has broken down (in default) should not be sent to the CRA until six payments have been missed.
Thee CCA says that an account may be considered as being in default and a notice sent after two monthly arrears notices are sent.
In practice both notices are sent together, which would indicate that as far as the CCA was concerned the contract became “in default” sometime earlier than the DN was sent
To complicate matters further there may be a contractual term that states” this account will be considered to be in default, or full payment of liability under the contract become due after x payments are missed", this would then become the date of the cause of action.
As i said, not a simple matter
Peter

[miliitant]

Re: Statue of limitations??

peter, if i may pick your brains

a default notice must be served on a debtor under 87 (1) of the cca 1974 prior to any enforcement, thats in the default and termination regs.

after 14 days the creditor can then legally default the account and send an official default of account to the credit agencies to be recorded for a period of six years.

once a default has been registered the creditor can then go on and terminate the agreement if they wish.

the average is three months of missed payments is normally the time line to register a default but the creditor can do it after the first missed contractual payment if they wished.

if there is no cause of action then what incentive is there to register a default. a creditor can wait for five years 364 days without taking any action, then officially default, obtain a ccj and you are then screewed for another 6 years making 12 years in total

i still maintain that the cause of action would be missing the last contractual payment but very much welcome the debate on this matter

[Guest]

Re: Statue of limitations??

There is no problem because the notice of default requied by the CRA is indeprendant to the default notice required by the CCA.

Accounts can be placed on a credit file long before a DN is issued undeer the act.

All agreements are covered by the same rules(not just CCA ones) 28 days notice before a default is registerred with a CRA.

The notices are just"usually "sent on the same document. It is all in th ICO guidlines.

Peter

[miliitant]

Re: Statue of limitations??

yes i agree

but where does that leave the creditor putting an account into official default as to 87 (1) for a six year period after the debtor missing just one contractual payment

at the end of the day guidelines are just that, guidelines

a credit agreement is a contract and by missing just one payment the debtor is in breach of that contract and that would then be the cause of action for the creditor

it sounds unfair but logical

but i could be totally wrong as usual

[Guest]

Re: Statue of limitations??

The creditor doesnt put the account in default.

The notice mearly reports the account status and gives the debtor advance warning of proceedings.

This is way off topic, all the answes are already there, so unless there is something to do with SOL. i will withdraw

[labman]

Re: Statue of limitations??

I am still of the opinion (not necessarily the correct one) that as far as the SOL is concerned, the cause of action is the first missed payment.

I agree wholeheartedly that the definition of default is variable - I negotiated a six month repayment holiday for someone today with HSBC with no default being recorded, which they would never usually do. Technically though they would not deal with me until the account was in default, even though they'd had a full month's warning it was going to be. The day after the first missed payment they spoke to me as the account was now in default.

[miliitant]

Re: Statue of limitations??

thanks for the discussion peter, its illuminating to get other peoples educated views on topics

regards

[Guest]

Re: Statue of limitations??

I am still of the opinion (not necessarily the correct one) that as far as the SOL is concerned, the cause of action is the first missed payment.

I agree wholeheartedly that the definition of default is variable - I negotiated a six month repayment holiday for someone today with HSBC with no default being recorded, which they would never usually do. Technically though they would not deal with me until the account was in default, even though they'd had a full month's warning it was going to be. The day after the first missed payment they spoke to me as the account was now in default.

Fortunately the debtor does not have to prove it is statute barred the cred has to prove it isnt.

I think if it were me i would err on the side of caution and say nothig until the full six years from the DN had passed.
Peter

[labman]

Re: Statue of limitations??

Very wise! If in doubt, play safe.

[Boogiemaster]

Re: Statue of limitations??

Its not default date like Lowell's told me on the phone its last payment date.

My wife's default drops off in October 2012 and her last payment was march 14th 2006 so on 14th of march 2012 I sent Lowell's an email saying this debt is now statue barred and I will not be paying.

Received a letter from Lowell's saying after checking this account we find this debt now comes under sec 5 of the limitations act 1980 and have now closed the account.


So it is the last payment date