Confusion about cause of action on statute barred account

[MikeG]

Re: Confusion about cause of action on statute barred account

That's good news Mike take a look at the template defence (s) in the green box at the top of the " court claim" forum make a draft and post here and we can go through it with you.
The question about the possibility of a short statement being made at the time the claim was acknowledged was valid as I have seen this happen and the court has Not acknowledged receipt of a defence.

nem

I have no idea what I need to include in this but here goes......

1: I received the claim ….......... from Northampton County Courton 14/01/2017

2: Each and every allegation in the Claimantsstatement of case is denied unless specifically admitted in thisDefence.

3: This claim appears to be for a Loan agreement regulated under theConsumer Credit Act 1974.

4: I requested documents from the claimant under 31.14 of the CivilProcedure rules. These arrived 12 months after the original requestwith a Default Notice dated 23^rd July 2008.

5: The claimant has not supplied the terms and conditions of thisloan agreement.

6: I believe that this case is unenforceable under the statue barredlimitations act 1980 with more than 6 years passing since the lastpayment, acknowledgement and default notice being served.

[Amethyst]

Re: Confusion about cause of action on statute barred account

Did you send a CCA request btw? That wants including before paragraph 5 ... before you go into the lack of terms. You def need the terms regardless of the CCA anyway to check the terms on default and termination.

The claim is dated 14th Jan 2016 I believe, not 2017.

Ahh yes - this might explain the 2011 date

So it could fall under BMW v Hart - if the original agreement was due to end on 22/03/2011 ?

If so, you might have a problem with the statute barred. I don't know the current arguments against BMW v Hart - but termination seems to be important - could be worth a SAR to BlackHorse to find out the termination date. It was obviously sent off to DCA's in 2009, and they issued a default notice which entitled them to call in the remainder of the debt, and I believe you can therefore argue that the cause of action is the point at which they were entitled to have taken action - not the point at which they actually decided to.

Any recent cases defending against BMW Hart judgment [MENTION=7765]Joanna C[/MENTION]; / [MENTION=551]pt2537[/MENTION] ?

[Diana M]

Re: Confusion about cause of action on statute barred account

This is what I have got to work with, The length of the claim is for 48 months from 16/05/2007

If the loan term was 48 months from 16th May 2007 it would have expired on 16th June 2011.

I can't read the blurred date on that loan agreement but it looks like 17/03/07 (so March not May)

The first statement shows an opening balance in 27/03/07 (March not May).

That Mortimer Clarke letter (from 2015) says the debt was not SB because the COA was when it was terminated on 22nd March 2011.

If the loan stated in March 2007 and was for 48 months then the loan term would have expired in March 2011.

The DN is dated July 2008 but there's still activity on the account (interest added and collection fee applied) up until August 2009 (at least).

What does the letter you have just received from Mortimer Clarke actually say they plan to do now that they have sent you some documents which I presume means they believe that they have now complied with your CCA and CPR Requests? Any threat will usually be in the last paragraph.

From what you say the court told you that the Claimant has not entered judgement yet, but does that new letter from Mortimer Clarke indicate that they might or does it give you a deadline to respond (file your Defence) before they would enter judgement?

Di

[MikeG]

Re: Confusion about cause of action on statute barred account

Did you send a CCA request btw? That wants including before paragraph 5 ... before you go into the lack of terms. You def need the terms regardless of the CCA anyway to check the terms on default and termination.

I received the CCA request quite sometime ago. It included the same info that I post above but without the default notice. Again with this there was no T&C's.

[Joanna C]

Re: Confusion about cause of action on statute barred account

Did you send a CCA request btw? That wants including before paragraph 5 ... before you go into the lack of terms. You def need the terms regardless of the CCA anyway to check the terms on default and termination.

The claim is dated 14th Jan 2016 I believe, not 2017.

Ahh yes - this might explain the 2011 date


If so, you might have a problem with the statute barred. I don't know the current arguments against BMW v Hart - but termination seems to be important - could be worth a SAR to BlackHorse to find out the termination date. It was obviously sent off to DCA's in 2009, and they issued a default notice which entitled them to call in the remainder of the debt, and I believe you can therefore argue that the cause of action is the point at which they were entitled to have taken action - not the point at which they actually decided to.

Any recent cases defending against BMW Hart judgment @Joanna C; / @pt2537 ?

The OP would want to be able to prove a termination date after service of the DN.

[Diana M]

Re: Confusion about cause of action on statute barred account

I received the CCA request quite sometime ago. It included the same info that I post above but without the default notice. Again with this there was no T&C's.

Did you send a CPR 31.14 request asking for the assignment (Deed and Notice)?

Have you been sent anything surrounding the assignment?

Di

[MikeG]

Re: Confusion about cause of action on statute barred account

If the loan term was 48 months from 16th May 2007 it would have expired on 16th June 2011.

I can't read the blurred date on that loan agreement but it looks like 17/03/07 (so March not May)

The first statement shows an opening balance in 27/03/07 (March not May).

That Mortimer Clarke letter (from 2015) says the debt was not SB because the COA was when it was terminated on 22nd March 2011.

If the loan stated in March 2007 and was for 48 months then the loan term would have expired in March 2011.

The DN is dated July 2008 but there's still activity on the account (interest added and collection fee applied) up until August 2009 (at least).

What does the letter you have just received from Mortimer Clarke actually say they plan to do now that they have sent you some documents which I presume means they believe that they have now complied with your CCA and CPR Requests? Any threat will usually be in the last paragraph.

From what you say the court told you that the Claimant has not entered judgement yet, but does that new letter from Mortimer Clarke indicate that they might or does it give you a deadline to respond (file your Defence) before they would enter judgement?

Di

The letter that landed the other day says

"the way forward

Please be advised that a claim remains on this account and we note that you have not formally responded to it.

Our client would like to settle matters with you without the need for further court proceedings. We therefore ask that you put forward repayment proposals to address the outstanding balance. Payment can be made through reasonable and affordable repayments. Our client will not ask you to pay more than can afford, therefore we include an income and expenditure form for you to complete. We ask that this form is returned to us within 14 days along with your offer of payment.

If we do not receive a response within 14 days we will seek our clients instructions with a view of taking further steps in relation to the court proceedings."

[MikeG]

Re: Confusion about cause of action on statute barred account

Did you send a CPR 31.14 request asking for the assignment (Deed and Notice)?

Have you been sent anything surrounding the assignment?

Di

In the CPR 31.14 I requested a copy of the agreement as that is the only thing listed in the Particulars of Claim. Sorry for my ignorance but I am unsure what you mean by assignment.

[Diana M]

Re: Confusion about cause of action on statute barred account

If we do not receive a response within 14 days we will seek our clients instructions with a view of taking further steps in relation to the court proceedings."

I'm glad I asked the question.

You must respond within 14 days of the date on that letter (what was that date?) or else they may take "further steps in relation to the court proceedings".

Their next obvious step would be to request a Default Judgment (CCJ) against you since you've not filed a Defence (yet). They can do that at the click of a mouse on MCOL.

Perhaps they're only being polite in forewarning you since if they went behind your back (which they can easily do since you've not protected your legal position by filing a Defence a year ago) you may apply for the Default Judgment to be set aside because they told you it was ok by them for you to wait while they went hunting for documents (they agreed to an extension).

So back to my earlier suggestion. You need to file a Defence.

You have reason to believe the debt is Statute Barred. Let them prove you wrong.

The SB issue has been debated on your thread for over a year but you have no time to waste with further debate.

Send a Subject Access Request to the original creditor to get the bottom line on what happened and when. Don't rely on documents disclosed by the Claimant.

I'm not in a position to advise on the contents of a Defence (I have to respect my firm's insurance) but it may make sense to throw in other legal arguments in case the debt isn't SB.

Di