Small claims court statute barred personal loan debt

[Guest]

Re: Small claims court statute barred personal loan debt

I have read the above post and am trying to collate the info, thanks thus far.

what does everyone think of this as reason for appealing it's a big side step but would it hold water ?

reason for appeal, in simple truth claimant has come to court twice, hearing for directions, then main hearing as per directions, with no evidence.

both times they presented nothing more than self generated photo copy's, self certified by a letter produced and signed by their solicitor.

this was commented on by directions judge, saying court must have sight of original documents as copy's were not admissible.

Thus BMW v Hart argument and photo copy's are immaterial.

case should have been dismissed for complete lack of evidence.

___________________________

What you think ??? And if not why not
Juno

Sadly this is what happens when you have a LIP (litigant in person) against legally represented claimants. They know all the relevant case law which your average LIP wouldn't be aware of, otherwise you could have argued that, BMW v Hart referred to an unregulated agreement with specific contractual terms and those terms were not a part of your agreement. That wasn't a matter of evidence but interpretation of the law and DJs are not consumer credit specialists. No doubt the BMW argument was put forward by the claimant rather than the judge, and you were not armed with the knowledge to argue.

The £20 payment is a matter of evidence and would require more than a screenshot, I can also do one right one showing you paid £20 last night, that's not evidence.

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Freshfields very true ! My research got as far a CAB stating and other sites the six years start at last payment, hence my defence that debt statute barred. The £20 photocopy statement first sight of a door of courtroom !

BMW v hart was in there bundle at the second hearing and was field by claimants sol, the judge would have seen it before hand. True was not armed with anything other than reiterating that I believed it to be last payment.

So what's your thoughts on my reason to appeal the judgment ???
as the appeal is not a retrial. Is as I said no hard evidence a reason to overturn the judgement ?

Is it worth mentioning anything other than my opinion on the quality of the alleged evidence?

[R0b]

Re: Small claims court statute barred personal loan debt

Juno, appealing is always going to be risk, but the problem is that time is not on your side, there may be grounds of appeal but its the risk you take. and the fee you are going to have to pay on top to make the appeal.

If you were given permission to appeal you need to file a notice within the said time given by the judge. Normally you would require the transcript from the case but fortunately because this was a small claims issue you can appeal and don't need to the transcript. But you do need the following information in 3 copies, one for you, the court and the claimant.

- the appellant notice for appeal
- copy of the judgment order
- Grounds of appeal ( this is your skeleton argument and this is what will take the longest)
-did you get an order which said appeal was granted?

Can you confirm the following please for better understanding:

- did you receive a copy of the default notice as said in the letter? or a template of it? if so can you post a copy?
- did the judge allow you to put your case arguments forward or did the judge stop you and make a premature judgment based on the claimant referring to BMW v Hart?


If they can't prove the payments, then you could also have grounds for appeal on the basis of obtaining judgment by fraud, especially if the solicitor has certified it, it should have ideally been certified by the original creditor and a statement confirming how the payment was made.

If you miss the timeframe, then you could make an application for permissin to appeal but it still needs to be sooner than later.


Ideally you need someone experienced to draw up the grounds of appeal in your skeleton argument such as a solicitor or barrister, but I am assuming you might not be abl to afford that so your other option is to go at it yourself, or face facts that you have a CCJ unless you pay within 1 month of the judgment.

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Ok permission to appeal, would this be given in writing ? I think Judge said at start of hearing that I could appeal if I didn't agree with out come but that was verbal. So I don't know ? How do I find out ???

Judgement order ! Haven't received one how do I get one ?

Skeleton argument, will have to do myself, along the lines of what I have posted re no evidence making they're arguments immaterial.
but any help from you would be appreciated.

the fees £255 yes ? And if appeal fails I assume I am back to negotiating
ex amount a month ?

no I did not get order to appeal ?

Default template was attached to that letter that mentioned it have posted it for you below it was across two pages.

Judge ask me if I had anything to say regarding BMW v Hart, I said I didn't agree and that last payment was start point for six year she then said she 'had to go with BMW v Hart as it was appeal court judgement'

Would there be a risk of being sued if I say they have been fraudulent ?

Juno

[R0b]

Re: Small claims court statute barred personal loan debt

There are two grounds of appeal

1. the decision was wrong, this falls into 3 sub categories
(a) error in law;
(b) error in fact;
(c) the judge has erred in exercise of their discretion

2. There have been some procedural irregularity in the proceedings. this falls under a number of sub categories such as not allowed to make submissions however an argument could be had here where the judge had failed to give their reasons for the decision. So for example, if the judge sided with the claimant that BMW v Hart has to be followed, she should have given the reasons why but also confirmed the date of the cause of action. If the judge did not then you could have a possible argument to raise here as the date of cause of action was essential to determining whether or not the claim was statute barred.

You would also probably want to rely on 1 (a) in that the judge has erred in law as regards to BMW v Hart as it can be distinguished and 1 (b) because you will want to raise the issue of judgment obtained by fraud regarding the £20 phantom payment provided that you can confirm that you never made that payment at all on or around that date. You won't be sued for fraud, but there is a high threshold in that you need some compelling evidence, so proof that no payment of £20 was made around that time from your bank statement is evidence and then the burden will be on the claimant to prove that. Assuming this loan was from Santander as stated on the DN then it should be Santander who should provide a statement confirming that the payment was made and how it was made - if they are lying then it would be contempt of court and there would be your grounds for dismissing the appeal based on fraud. When cases of fraud has been found the courts have usually dismissed the appeal rather than refer it for re-trial but it is possible to refer it back to court for a re-trial or allow the possibility of the claimant making a fresh claim against you subject to limitation period.

You would probably want to question the DN letter as well, because a template of their DN letter is not sufficient.

Do you know how to set out a skeleton argument, or have you done a witness statement before?

As for the judgment order, you should have received it in the post if not contact the court and ask for it asap, and confirm you have permission to appeal which is urgent, ask whether the judge has allowed the usual 21 days or less?

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Thanks Rob
does the screen shot weaken the fact they only have template DN, have posted it below plus front of agreement which is all they put to court, leaving out the other pages I posted earlier.

Re the fraud, the A & L where I got the loan doesn't extist any more and I have not kept any statements or even have the bank account I used to pay the loan with anymore ?

no haven't done a skeleton argument ? Would appreciate any help there.


will get on to court today re order etc

many thanks
Juno

[R0b]

Re: Small claims court statute barred personal loan debt

that screenshot to me is just full of letters and numbers, i have no idea what it means although obviously some of it you can work out for yourself, but that to me isn't proof of debt or evidence that you made a payment or evidence that a DN was sent, especially if it was self certified by a lawyer who doesn't even work for them.

Also, the DN template letter shows that the agreement was with Santander when it was actually with A&L. That would presumably be Santander's template for a DN letter but not necessarily A&L's? For it to be under the remit of Santander it would have needed to have been legally assigned to them or novated (which is unlikely). Otherwise it would be an equitable assignment and they wouldn't have a right to assign it legally without A&L's written authority. If A&L dissolved before that took place, then you could argue that it has become bona vacantia (assets of dissolved companies are then vested in the crown) and they had no right to bring a claim in the first place. Given that Santander are still around they should be able to prove it was transferred to them, but it could be that they might not. If no DN sent then it can't be enforced.

I can see on that screenshot that there is a code outstanding invoices, payment requests, Costs and Charges under the Contract LNCADFTZ which seems to correspond with part of the reference of that Santander on the template which might be a code for default letters but who knows? That would be up to them to prove that is the case.

Maybe I'm just rambling another possible argument here but maybe @nemesis45 or @Amethyst can provide better answers.


I'll post up a template later as a starting point to draft your arguments, it needs to be set out in a specific way but you can start drafting something up in the meantime, post it up and we can work with that. Try working with the following headings to help

1. Brief background of facts
2. The decision of the judge
3. Grounds of appeal (separate headings for each ground)

By the way, I have just checked fees for county court appeals and seems that the fee is only £120 not £255 which is the standard application fee, assuming it was on the small claims track yes?

[nemesis45]

Re: Small claims court statute barred personal loan debt

Thanks Rob
does the screen shot weaken the fact they only have template DN, have posted it below plus front of agreement which is all they put to court, leaving out the other pages I posted earlier.

Re the fraud, the A & L where I got the loan doesn't extist any more and I have not kept any statements or even have the bank account I used to pay the loan with anymore ?

no haven't done a skeleton argument ? Would appreciate any help there.


will get on to court today re order etc

many thanks
Juno

Hello Juno,

The print out is littered with various codes AND is meaning less an explanatory letter (key) is sullied I believe there is a specific obligation to supply this.

What else has been supplied with the " agreement"?

nem

[Amethyst]

Re: Small claims court statute barred personal loan debt

Clause C2 of the agreement gives them the right to terminate should you miss a monthly payment, HOWEVER there is no term that allows the agreement to automatically terminate for example if you are more than 21 days late making a payment ( as in Reeves v. Butcher [1891]) Other terms also point to the debt accruing without termination until the end of the agreement ( G and again C2 ) thus I think BMW may well carry weight here.

[nemesis45]

Re: Small claims court statute barred personal loan debt

The DN states the arrears to be paid within 14 days of service No specific date is stated.

newm

[R0b]

Re: Small claims court statute barred personal loan debt

Clause C2 of the agreement gives them the right to terminate should you miss a monthly payment, HOWEVER there is no term that allows the agreement to automatically terminate for example if you are more than 21 days late making a payment ( as in Reeves v. Butcher [1891]) Other terms also point to the debt accruing without termination until the end of the agreement ( G and again C2 ) thus I think BMW may well carry weight here.

I think you mean D1 they're a bit confusing those terms, clause G to me though is just a additonal sum to be paid for committing a breach in the first place. Another key difference here is that in BMW, they actually gave notice to terminate and the wording of clause D ix is a bit ambiguous in saying that it may terminate the agreement but doesn't say how. Therefore, someone who has shown their intention not to pay would amount to a repudiatory breach. To accept this they must give notice to terminate, which I don't believe has happened in this case, if it did then BMW might be relevant subject to the date of notice.

The only other problem I see with that is you can terminate at common law as opposed to contractually, and to do so it must be clear and unequivocal otherwise the terminating party risks losing the right to terminate. So if no notice or conduct is given to terminate that is clear an unequivocal, then they have not accepted the repudiation to terminate but affirmation instead and the calculation for damages is somewhat different then.

The DN states the arrears to be paid within 14 days of service No specific date is stated.

newm

does that mean the default notice, if it was actually sent is invalid?

[nemesis45]

Re: Small claims court statute barred personal loan debt

Hello Rob,

Yes the DN is imo faulty I believe the wording is something remedy must be made by the date stated heron so 14 days from service is not giving a specific date to remedy.

nem

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Hi Rob, thank you for helping. Yes small claims track. Asked court on phone today. They said I needed to ask a solicitor regarding if I have permission to appeal !
they couldn't tell me what time period judge as put on appealing ! ( am sure she told me 14 days in court )
And I received judgment order in post this morning. Will post

- - - Updated - - -

Judgment order below

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Hi Amethyst, thanks, did you see my earlier post, 2 pages which are the rest of the Aliance & Lester loan agreement. Note claimant did not field these maybe doesn't have them. They only had front page in court and it was photo copy. Don't know if any of that affects things ?
Juno

[R0b]

Re: Small claims court statute barred personal loan debt

Usually appeal is 21 days from the date of judgment but can give a lower time like 14 days. Why are they saying you need to see a solicitor? The judge should have said and commented that permission to appeal was granted. Otherwise you have to file permission to appeal.

If you are certain the judge definitely said permission to appeal was granted then you should work off that basis.

There seems to appear to be a ground or two for appealing, but ultimately this is your decision as to whether or not you want to appeal it, or seek to make repayment arrangements.

Can you clarify what the judge said in her decision at the end? Did she specify what she said the date for cause of action was?