Aktiv Capital chasing an old debt, not sure if Statute Barred

[Guest]

Re: Aktiv Capital chasing an old debt, not sure if Statute Barred

Am not refering to the CCJ being statued barred am saying the debt it self is. As you an i both know they will not likely get permission from the court to enforce, and we can easily get the CCJ set aside. Then what will the creditor/DCA do, as they then wouldn't be able to continue the original claim since its been over six years since last payment, and as the CCJ was setaside, and therefore for all intents and purposes never existed. If they did try to continue the original claim, then the simple defence would be what Davyb? Thats right statuted barred as last payment was made in 2003/4 therefore the debt became statuted barred according to the limitations act in 2009/10.

Off course it depends on OP not receiving the particulars of claims when the claim was issued prior to the CCJ being granted original by default judgement - But we both know they are not likely to get the courts permission to enforce the CCJ now in any case, so the status quo is no different to the status of being statuted barred as in either status they can not enforce. And if they in the unlikely event were to get permission to enforce the CCJ and the op informs us that they never received the particular of claims prior to the original CCJ being granted or never received an valid default notices etc, prior the claim being issued and did not defend or ignored the particulars of claim then we can look at getting the CCJ setaside.

So no Davyb i did not say the CCJ was barred by statuted but only that it can not be enforced and so the status of the debt is exactly the same as it would be if it was statued barred. And if they were to try and get permission to enforce, then we can easily apply for setaside, as i very much doubt they have a copy of the true signed credit agreement under section 61 given the amount of time that has passed. Which without it, they can not hope to prevent a setaside of the CCJ let alone win at any following court hearing, considering the debt is statuted barred and the CCJ deemed as never having existed if setaside is granted.

Try reading my whole post and look at the variables involved that explain my point as to why i discribed the debt as statued barred.

Why do you find it so difficult to just say you were wrong?

A CCJ debt is not barred by statute simple as that.

D

[teaboy2]

Re: Aktiv Capital chasing an old debt, not sure if Statute Barred

Am not saying the CCJ is barred by statute after 6 years Davy. Am saying that it might as well be as the status quo is just the same as it is when a debt is statuted barred - Neither can be enforced. Read my reasoning behind what i said.

As you know as well as i do if they go for permission to enforce the CCJ we could have the CCJ setside, which resets the court proceedings to where they were as if the claim had just been issued. But as its now 2012 and not 2004, and as its only reset proceedings and does not send us back in time to the begining of proceedings in 2004 or whenever. Then the court will have to take into account that no payment was made between 2003/4 and 2010. Therefore making the debt statuted barred. The claiment simply can not rely on the CCJ originally being issued as a way of getting round the limitations act as the originally CCJ for all intents and purposes ceased to exist when setaside and therefore must be deemed to have never have been granted.

So the claim would be no different then someone trying to claim in a court a debt where last payment was over 6 years ago and where no CCJ was ever granted.

So regardless of how they want to play it, they will find the debt is statuted barred once its all over in court. Not to mention the fact they probably no longer have a copy of the signed credit agreement as per 61, meaning that it would be unenforcable too as well as statuted barred, should the a set aside be granted and the legal process be reset.

Just because they got a CCJ by default (assuming it was by default judgement), within 6 years period from date of the last payment, it doesn't mean that once the CCJ is setaside and the legal process is reset that they can then claim that the limitations act does not apply - As it does still apply. If anything it can be argued that they brought this upon themselves by not enforcing the CCJ within the first 6 years. You can't just get a CCJ against someone, not enforce it for 6 years, and then say after the CCJ is setaside that the limitations period doesn't apply because you had been granted a CCJ originally, when that very CCJ was set aside and therefore legally deemed to have never existed in the first place.

Hers some basic steps behind my reasoning as if application for setaside was made:

1) Application for set aside of CCJ made on grounds of no particular of claims were received by the defandant and therefore the defendant was not aware a claim had been made nor were they able to defend against such claims as a result of not being aware of the claim.

2) CCJ Setaside is granted

3) New particulars of claim issued, defendant acknowledges and ticks the box to say they will defend against the claim.

4) Defendant sends CPR31.14 Letter to claiment asking for Copy of agreement, default notices and statements etc

5) Claiment response but fails to provide copy of agreement (as we well know its unlikely given the time that has passed that they still have it) but supplies allegded default notices and statement showing last payment was made in 2003/2004 and one other payment made just over 6 years later in 2010.

6) Defandant draws up his defence. Stating Claiment failed to fully comply with defendants cpr31.14 request, to be specific, Claiment failed to produce a copy of the credit agreement that complies with section 61 of the consumer credit act. Defendant stricts them to proof that they have a true copy of the signed consumer credit agreement complete with all perscribed terms and terms and condition. Defendant also stricts them to proof the Default Notices was served on the defendant (not proof of postage but served as in received by defendant). Defandant then states the second to last payment accourding to the account statements provided by the claiment was on (for example) 25th Febuary 2004, the last payment was on (for example) 15 May 2010. the duration of time between to payments was therefore a total of 6 years 1 month and 20 calander days. The Limitations act clearly state that if no payment or acknowlegdment is made by the debtor towards the debt, then the debt is as of 6 years from the date of the last payment or acknowledgement of the debt Statuted Barred and unenforceable on court.

7) The Hearing:

Suprisingly the Claiment arrives with a copy of the agreement that complies with section 61, they then argue and present evidence of default notices being received by the debtor. They then argue that the limitations act does not apply in this case as the original CCJ was issued in June 2004 and last payment was made in May 2010 a duration of time of only 5 years and 11 months, therefore within the 6 year time limit and as such the payment in MAY 2010 resets the statued barred clock.

8) the Defendant argues that the CCJ was setaside and legal proceedings reset, therefore for all intents and purposes the CCJ is deemed to have never existed. As such the the period of time between 2nd to last payment on the 25 febuary 2004 and last payment on 15th may is the duration that is relevant period in regards to the limitations act and not the period between the date the now setaside CCJ was issued and the last payment in May 2010. As such the payment in May 2010 was made after the the debt had become statuted barred, and as a statuted barred debt can not be unstatuted barred, the debt therefore remains statuted barred.

9) The Judgement:

The judge agreed that their was an agreement and a debt was owed in favour of the claimant. However the judge also agreed with the defendant that the the CCJ when setaside is indeed deemed as having not existed, and therefore the last payment on 15th may 2010 was indeed made over 6 years later than the 2nd to last payment and as such the debt was indeed according to the limitations act Statuted Barred and as such the debt can not be unstatuted barred by the payment made in May 2010, Therefore the judge rules the debt unenforcable and awards costs to the defendant.

Case Closed. Now i can not explain it any better than that.

[Guest]

Re: Aktiv Capital chasing an old debt, not sure if Statute Barred

Oh I see

D

[teaboy2]

Re: Aktiv Capital chasing an old debt, not sure if Statute Barred

No worries DavyB. Main thing is i agree that a CCJ is never statuted barred legally, just given the circumstances and how things would likely play out. iIn which case, regardless of the CCJ, the debt would in the end been deemed statuted barred.

Though thats based on the assumption that the OP did not receive the Particulars of claim or didn't reply to them and claiment got judgement by default. Because if the OP did originally defend in court and lost, resulting in the CCJ in the first place, then... Well we both know that the OP would have no choice but to live with the consequences of not complying with the CCJ should the DCA get permission from court to enforce.

I know i probably didn't explain it well originally, and i hold my hands up to that. But i'd rather the OP have a good idea of what may happen and what they could do about it should it happen.