Can Default Notice Start the clock on the 6 year limitation period on a personal loan

[aversnee]

Hello fellow good people,

Ive followed most of the advice on this forum and felt empowered to take these DCAs on but have subsequently found that all arguments (at least in my case) have fallen on deaf ear during the hearing. As a result Im facing a CCJ after if I do not appeal in the next few days.

My appeal boils down

Recap
- amount owed to original creditor £18k
- completed 3 letter process
- made all arguments to court re DOA, Notice of Default, Incorrect communication, uncertainty as to amount, inconsistency throughout witness statements
- Most salient argument - Statute barred as first default, several consequent defaulted payments and final payment all more than 6 years

- Judgment against me despite the above although the Statute barred was a difficult point...basis of judgment - caselaw which says that clock can start at date of default notice issue - which is less than 6 years and therefore not barred.

My question is simple and Id love some support as well as I think the answer to this could help many from not going as far as hearing and getting CCJ:
- When does the clock start
- Can it EVER start with default notice on standard BANK Loan
- What caselaw supports this position and can it be rebutted in an appeal

nb Im an accountant so the CCJ could affect my career massively but at this late stage I regret tackling the issue in court despite the bullying, improper conduct and blatant lies on the part of the DCA.


Very urgent so please if anyone can help!?



- - - Updated - - -

<Didnt complete this part> My appeal boils down to when does the limitation act start
- at the date of the first cause of action (if so then statute barred and judge applied case law incorrectly so I will appeal)
- at the date of the last payment (if so then statute barred and judge applied case law incorrectly so I will appeal)
- or at the date issue of the default notice (judgment made on this basis; what caselaw is good caselaw for applicant/ if not used I will appeal)

>>>the contract says all sums are due immediately on default

[Nibbler]

Re: Can Default Notice Start the clock on the 6 year limitation period on a personal

- completed 3 letter process

If that is the one from "get debt free out" (rearrange words) then I would imagine that may have got a judge off your side at the start.

My appeal boils down to when does the limitation act start
- at the date of the first cause of action (if so then statute barred and judge applied case law incorrectly so I will appeal)
- at the date of the last payment (if so then statute barred and judge applied case law incorrectly so I will appeal)
- or at the date issue of the default notice (judgment made on this basis; what caselaw is good caselaw for applicant/ if not used I will appeal)

>>>the contract says all sums are due immediately on default

So they are arguing BMW v Hart?

http://www.lexology.com/library/deta...7-21b6701a273e

[nemesis45]

Re: Can Default Notice Start the clock on the 6 year limitation period on a personal

[QUOTE=Nibbler;564197]

If that is the one from "get debt free out" (rearrange words) then I would imagine that may have got a judge off your side at the s

This case law was in regard to a Hire Purchase Agreement not a simple loan some DCA's are using the default date which is wrong I believe as it's the date the creditor can First Demand Immediate Payment in Full that starts the clock.

nem

[Nibbler]

Re: Can Default Notice Start the clock on the 6 year limitation period on a personal

Yes, believe me, I'm more than aware of that. I did not say I agreed with what they were arguing.

[FlamingParrot]

Re: Can Default Notice Start the clock on the 6 year limitation period on a personal

Hello fellow good people,

Ive followed most of the advice on this forum and felt empowered to take these DCAs on but have subsequently found that all arguments (at least in my case) have fallen on deaf ear during the hearing. As a result Im facing a CCJ after if I do not appeal in the next few days.

My appeal boils down

Recap
- amount owed to original creditor £18k
- completed 3 letter process
- made all arguments to court re DOA, Notice of Default, Incorrect communication, uncertainty as to amount, inconsistency throughout witness statements
- Most salient argument - Statute barred as first default, several consequent defaulted payments and final payment all more than 6 years

It should be noted that this forum has never recommended or endorsed the three letter process so that came from the other site.

Was that brought up at any time at the hearing?

Was there any award for costs?

[nemesis45]

Re: Can Default Notice Start the clock on the 6 year limitation period on a personal

Yes, believe me, I'm more than aware of that. I did not say I agreed with what they were arguing.

The " three letter" nonsense is certainly not going to impress a judge, discredited all over the world.

nem

[Roland]

Re: Can Default Notice Start the clock on the 6 year limitation period on a personal

BMW is so widely misunderstood, it had nothing to do with the fact it was a HP agreement, it was about if a contractual term can trigger the point where the creditor is able to commence an action to recall all sums under an agreement, this is defined as the point of commencement of the six year period under section 5 of the act. It would have made no difference if it were fixed sum or even running account credit.

I can find the case law for you if you like.

It was postulated of the back of this that because the contractual term delayed the termination of the contract and therefore its ability to be rescinded that the same would apply to default notices issued under section 87 of the act, as only after one of these have been issued can a debt be recalled, so only then can a creditor be entitled to recall the debt. To my knowledge this has never been tested.

What is for sure is that the agreement must be at an end before the sums can be recalled. Some agreements will say that the agreement will be terminated after a couple of missed payments some will say more some less.

The antidote to this argument i that the default notice is just a procedural barr to enforcement and has no effect on the commencement date, there is case law to support this position also. A result of this carried to its logical conclusion is that a defaulted account could be terminated 6 years or more before the creditor can enforce, thus removing his right to enforce completely, this eventuality has been discussed and does not seem to effect the value of this particular argument.

If you are going to fight against the default notice under section 87 argument you are going to have to argue tht the DN is merely a procedural bar and the actual termination of contract and the ability ot commence proceedings occurred some time earlier.


I am afraid it is a matter of paying your money and taking your chances.

[nemesis45]

Re: Can Default Notice Start the clock on the 6 year limitation period on a personal

BMW is so widely misunderstood, it had nothing to do with the fact it was a HP agreement, it was about if a contractual term can trigger the point where the creditor is able to commence an action to recall all sums under an agreement, this is defined as the point of commencement of the six year period under section 5 of the act. It would have made no difference if it were fixed sum or even running account credit.

I can find the case law for you if you like.

It was postulated of the back of this that because the contractual term delayed the termination of the contract and therefore its ability to be rescinded that the same would apply to default notices issued under section 87 of the act, as only after one of these have been issued can a debt be recalled, so only then can a creditor be entitled to recall the debt. To my knowledge this has never been tested.

What is for sure is that the agreement must be at an end before the sums can be recalled. Some agreements will say that the agreement will be terminated after a couple of missed payments some will say more some less.

The antidote to this argument i that the default notice is just a procedural barr to enforcement and has no effect on the commencement date, there is case law to support this position also. A result of this carried to its logical conclusion is that a defaulted account could be terminated 6 years or more before the creditor can enforce, thus removing his right to enforce completely, this eventuality has been discussed and does not seem to effect the value of this particular argument.

If you are going to fight against the default notice under section 87 argument you are going to have to argue tht the DN is merely a procedural bar and the actual termination of contract and the ability ot commence proceedings occurred some time earlier.


I am afraid it is a matter of paying your money and taking your chances.

And badly misinterpreted by some!!
Your very confused and making advising members here more difficult.

I think I've come across you elsewhere starting this kind of " discussion" and disruption.

[Roland]

Re: Can Default Notice Start the clock on the 6 year limitation period on a personal

No it seems to be the general informed view. Several threads on here, i give a balanced view here because as i say there is no binding authority.

[jon1965]

Re: Can Default Notice Start the clock on the 6 year limitation period on a personal

I have to say that Paul has raised the question of BMW and its validity

I think I have this right, if within the loan agreement there was a clause that let them terminate the loan without issuing a default notice AND they did this, the limitations would start from that date. In order to get this info you would need to SAR the bank but that can take 40 days for a reply .
The issue of Limitations is very complex. It is interesting that the judge has stated this . As the sum is large it may be worth getting some professional advice http://www.qualitysolicitors.com/how...le/paul-tilley
I believe the firm do an initial free phone consultation

[Roland]

Re: Can Default Notice Start the clock on the 6 year limitation period on a personal

Some light reading on the subject

For those unfamiliar with the case, here's a few links to read:



http://www.forwarn.com/news/db.asp?P...ance_Companies

http://www.lexology.com/library/deta...7-21b6701a273e

[Roland]

Re: Can Default Notice Start the clock on the 6 year limitation period on a personal

There is convincing argument from both aspects, it is true that the creditor cannot terminate the agreement on a regulated loan until a DN is issued so in this there is a delay in when the SB can commence.
Contractually though this is a requirement of statute and some would say equally validly that the SB is a matter of contract law and should not be effected by statute, and that this would not effect the requirements of the contract. I could create a reasonable defence in both scenarios

[jon1965]

Re: Can Default Notice Start the clock on the 6 year limitation period on a personal

When I said that Paul was asking questions on the validity of the BMW case he was actually saying that if you are arguing Limitations in court you may well come up against the BMW argument . He was not questioning the judgement

[Roland]

Re: Can Default Notice Start the clock on the 6 year limitation period on a personal

No he wouldn't.as said there are valid arguments both ways

[Roland]

Re: Can Default Notice Start the clock on the 6 year limitation period on a personal

I am on my tablet away from home ATM.
What the op needs is to read the case where the council contractor,sued and the authority claimed SB.he lost on grounds that the invoice was,just a bar to enforcement and the coa occurred earlier. It is on my other PC,but I am sure someone. On here will have it