Cause of Action Discussion

[charharp]

Re: Cause of Action Discussion

That's the point can you not read? Yes a DN needs issuing before a demand can be made but it's a procedural formality. it's not when the creditor first demands full payment it's when it first has the option to. they first have the option to after one missed payment. The issuance of a DN is just a formality.

let me put this in a simpler way you may understand. You can not leave your house because the door is locked and you don't have a key. You are 'locked' in, your wife returns home and unlocks the door but you don't leave the house because you don't want to. You leave the house the following morning. You wasn't locked in until the following morning you just chose not to leave, it was your choice. The opening of the door and walking out is not required for you to be no longer 'locked' in.

[jon1965]

Re: Cause of Action Discussion

I am lost.
A DN was issued followed by a termination followed by a claim. If you are referring to section 3 i dont see the relevance.
The contract may say that but the CCA says a DN needs issuing. Also both Dodge and Andy understand that I am not sold on that point but open to persuasion.

[charharp]

Re: Cause of Action Discussion

The part where you two claim that a default notice had to be served before the outstanding money can be demanded and the fore COA is default date at the earliest.

[jon1965]

Re: Cause of Action Discussion

Charharp


The above was a LOAN and subject to normal terms.<br>Do you know what those terms were?
>In the two loans I have quoted it says one missed payment is enough to trigger a demand subject to statutory notices
You need also to understand that a default on a credit fill has bugger all to do with the issue of a default notice.
As examples I have a loan with hillsden that has never been registered on a cra and also a payday loan or two that have defaults on file with no DN issued<br>On top of that i have really bad DNs and defaults.

Which bit are you questioning.

[charharp]

Re: Cause of Action Discussion

Hi everyone

I received a court claim form dated 28th Nov 2013 - it is from Earlswood Solicitors and the claimant is Britannica Recoveries s.a.r.l.- Moorgate. The POCs say

1) Egg made a loan to Defendant (D) subject to standard terms and conditions.

2) Claimant (C) purchased loan on 11/07/11

3) If any instalment was not paid on due date, C would be entitled to repayment of outstanding balance of total payable, less (on payment) any rebate to which D might be entitled.

4)D failed to pay instalments due. C issued a default notice requesting payment D failed to pay the sums due, which consequently became immediately due and payable, Formal Demand issued dated 18.11.13

5) D has failed to pay the outstanding balance of £XXX.

I have checked my credit file and it says this debt was defaulted on 10/1/11.

I have completed an online AOS

I have sent (yesterday) a CPR 31.14 to the solicitors requesting the agreement, default notice and termination notice.

Any more advice anyone??

Many thanks in advance

There you go Von Brainstorm.

Re: Cause of Action Discussion

Much of the misunderstanding regarding overdrafts and cause of action is because of the mistaken belief that an overdraft is in itself a breach of contract, it isn't.

If a payment is presented to a bank and there is insufficient credit available the bank will make a lending decision, it will either loan the money or return the request and enter a default fee into the account for processing it.
This fee would be immediately reclaimable , the bank would send a demand.

However if the bank advances the money then it has agreed to the overdraft, this is then a regulated agreement under the consumer credit act section 10. The bank should then send out terms, (interest rate etc chargeable) under section 74a of the Eu consumer credit amendment regulations.
Previous to Feb 2011 the bank did not have to send out a notification but the agreement would still be regulated.

This is an open ended agreement usually and as far as the SOL is concerned usually comes under section 6, which states that the COA would accrue on demand of payment.( this is unless there is an agreement or promissory note in place which states otherwise).

The breach required in order to create a cause of action would be when the debtor failed to repay the demand, and of course the conduct of the account will be recorded under the data sharing permissions given when the current account was opened.

[charharp]

Re: Cause of Action Discussion

They must have considered it a breach of terms otherwise they would have no reason to start registering arrears. COA.

[jon1965]

Re: Cause of Action Discussion

Why must it have been. I am not trying to play games but do you have anything that says it is? I know you would like to think it was , in fact I am sure many of us would but I can see no way round it. Credit files have no standing other than as a way to see how you conduct you affairs.

[charharp]

Re: Cause of Action Discussion

COA for an overdraft requires two different discussions. One for OD being recalled and one where you go into an unplanned overdraft. The month following me entering into an unanned overdraft my credit file had me 1 month in arrears. This must have been COA.

Re: Cause of Action Discussion

I do not know if it was me reading it differently or what.
As we discussed earlier my interpretation is that early repayment can only be demanded when the contract says so. For example in some of the contracts in post 1 it says that they will give 30 days to remedy any remedial breach i.e bring the account back within its credit limit and/or catch up with the missing payments. In those situations IMHO the limitations would start 30 days after the due date of the missed payment because up until then the creditor can not demand full repayment
In another it doesn't make any express time limits or even an express number of missed payments it just says frequent so again IMHO the definition of frequent needs to be determined , I would suggest 3 in a 6 month period maybe 3 in a year but at any rate if the account was in good order at least two missed payments.

The way I was reading the post by Charharp was that any 1 missed payment would trigger the COA and hence limitations on the day after that payment was due.

There are some other details on which opinion is divided but that may well have to wait until case law is established

I think that where no contractual term exists the requirements of common law would have effect, in that demanding full repayment on just a single missed payment would be a penalty, the creditor would have to show more serious repudiatory breach.

earlier in this thread there is opinion which agrees that any contractual term which allows early repayment must be consistent with common law, I would agree.

[jon1965]

Re: Cause of Action Discussion

I do not know if it was me reading it differently or what.
As we discussed earlier my interpretation is that early repayment can only be demanded when the contract says so. For example in some of the contracts in post 1 it says that they will give 30 days to remedy any remedial breach i.e bring the account back within its credit limit and/or catch up with the missing payments. In those situations IMHO the limitations would start 30 days after the due date of the missed payment because up until then the creditor can not demand full repayment
In another it doesn't make any express time limits or even an express number of missed payments it just says frequent so again IMHO the definition of frequent needs to be determined , I would suggest 3 in a 6 month period maybe 3 in a year but at any rate if the account was in good order at least two missed payments.

The way I was reading the post by Charharp was that any 1 missed payment would trigger the COA and hence limitations on the day after that payment was due.

There are some other details on which opinion is divided but that may well have to wait until case law is established

Re: Cause of Action Discussion

Good stuff, everyone agrees on the basics then, so standard CCA loans and credit cards are sorted.

COA is the point at which the creditor has the right to demand repayment according to the terms of the agreement.

So the question is now;

When is COA on an HP agreement ?

When is COA on an overdraft ?

A HP agreement is no different than a fixed sum agreement in this respect, in that it will accrue upon the right to demand full repayment of liquidated damages(liabilities) as defined in the terms of the agreement, or on termination (when the agreement reaches its full term.).

An overdraft which is taken on a current account without a formal agreement(a tacit agreement to overdraw) will have a cause of action which accrues on the first demand for repayment.

This comes under section 6 of the SOL.

[Amethyst]

Re: Cause of Action Discussion

Good stuff, everyone agrees on the basics then, so standard CCA loans and credit cards are sorted.

COA is the point at which the creditor has the right to demand repayment according to the terms of the agreement.

So the question is now;

When is COA on an HP agreement ?

When is COA on an overdraft ?

Re: Cause of Action Discussion

So



?

Yes this is right, it is also what the advice agencies say, authority is in reeves vs butcher." COA has always been held to arise when the wronged party is first able to demand repayment"

However this does not mean that they can delay the COA by not demanding payment in;

Royal Borough of Kensington and Chelsea V Khan [2002] EWCA Civ 279

The judge says at section 35, “Who ever heard, with reference to any statute of limitations, that a creditor could enlarge the time for suing indefinitely by omitting to do that which it is his duty by statute or common law to do? It appears to me that we ought not to adopt a construction of the statute that leads to such a result, unless we are driven to it.

So The time must run from when the agreement says he can demand payment at the very earliest, before this all that can be demanded upon a single breach is remedy of that event.


That leaves the question open regarding if the COA is delayed further by the requirements of the act and issuance of a default notice, on this the jury is out and opinions vary.

[Amethyst]

Re: Cause of Action Discussion

So

limitations starts from the point the creditor CAN demand full repayment by virtue of the terms of the agreement

?