Small claims court statute barred personal loan debt

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Hi guys, SO IS IT EVERYONES opinion that I should back off and negotiate monthly payments ?

If I appeal. And lose what will happen, I know I lose £120 but are you saying the claimant can be awarded £1000 s what's the maximum amount. And is this only if they contest the appeal ? I really need to know what the risk is ?

[R0b]

Re: Small claims court statute barred personal loan debt

If you appeal and permission given to appeal, I cannot see how you stand to lose more money in terms of costs. CPR 27.14 specifically states "The court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses, including those relating to an appeal" in which case they are fixed costs.

The Whitebook also confirms this is the case, that cases on appeal from small claims, costs are limited

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Hi guys, SO IS IT EVERYONES opinion that I should back off and negotiate monthly payments ?

If I appeal. And lose what will happen, I know I lose £120 but are you saying the claimant can be awarded £1000 s what's the maximum amount. And is this only if they contest the appeal ? I really need to know what the risk is ?

[Amethyst]

Re: Small claims court statute barred personal loan debt

If you appeal and permission given to appeal, I cannot see how you stand to lose more money in terms of costs. CPR 27.14 specifically states "The court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses, including those relating to an appeal" in which case they are fixed costs.

The Whitebook also confirms this is the case, that cases on appeal from small claims, costs are limited

I agree, however there is the possibility of 27.14(2)(g) being applied. It is an outside possibility but it does need acknowledging.

The grounds for appeal are very slim, if at all. We only have statute barred to argue and it is a direct argument against BMW v Hart.

[Amethyst]

Re: Small claims court statute barred personal loan debt

@Amethyst / @Joanna C


As per Reeves, the earliest time that a creditor can bring an action against he debtor for the full sum of monies will be 14 days after the DN is issued and Hart therefore to be distinguished on that basis.

The DN was dated end of January 2010 and the claim was brought in August 2015. So it fails under Reeves.

[R0b]

Re: Small claims court statute barred personal loan debt

So it is, seems like I was running on the basis of Jan 2009

well on that basis, an appeal would probably not be worth it as it is too technical and as you say, is a slim chance.

[Amethyst]

Re: Small claims court statute barred personal loan debt

Ahhhh. That makes sense then. I thought I was going batty.

The last payment was April 2009 so the ONLY argument for statute barred would be back to date of last payment under LA 1980 s.5.... but we run straight into the CCA requirement for DN to terminate and Reeves.... even if Hart does get distinguished ( which going by the terms of the loan I don't think it would be)

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Question, if I appeal do I need to inform claimants and would that be inside the 14 days ?
also regarding standard of evidence the claimant supplied to court, photo copy's self certified, would that fact carry any weight in appeal ???

[pt2537]

Re: Small claims court statute barred personal loan debt

Ah also from @Joanna C;

Indeed, a problem or two there.

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Do you know if the BMW v Hart is being used a lot re the six year statute barred ?
If you google statute barred the advice is that the six years runs from last payment, and that includes CAB.

[charitynjw]

Re: Small claims court statute barred personal loan debt

Do you know if the BMW v Hart is being used a lot re the six year statute barred ?
From what I've read on other threads, yes it is, as it gives the creditor/assignee a huge advantage in dismissing statute-barred defences.
If you google statute barred the advice is that the six years runs from last payment, and that includes CAB.
It wouldn't be from the date of the last regular payment made, as that would normally satisfy the contract terms & the debtor would not be in a potential default position. The opposing arguments seem to be

a) The 'accrual' date (when the SB clock is started) is the date when the creditor was aware, or should have been aware, that the contract terms had been breached (non-payment). As the debtor is allowed a period of time from the monthly statement date in which to regularise the account as per the contract terms, after that period the creditor can then issue a Default Notice (DN) which then gives the debtor a further 14 days to bring the account up to date. Failure to do so could result in the creditor terminating the account & demanding full payment of the whole outstanding amount of credit.
In this scenario, the accrual date would be approx 2 months or so after the last regular payment.
Of course, if any ad hoc payments are made after this, it will 'reset' the SB clock.

b) The scenario preferred by the creditors/assignees is that the SB clock does not start until the creditor has 'accepted the breach of contract' & therefore terminates the account. This date could be years after the actual breach.

This is a [my] fairly simplified explanation & doesn't go into the finer nit-picky issues, such as the date for service of a DN, defective DN etc.
I'm in favour of argument a); sure, it's up to the creditor when to accept the breach & terminate, but this should not be allowed to circumvent the statutory defence afforded via the Limitation Act.
BMW v Hart (which was, I believe, not a regulated agreement), Reeves etc......... I reckon the debate will rumble on until/unless some brave authority grasps the nettle.

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Hi thanks, yes I see how they are working it.
my case as its appeal not retrial, I feel hinges on evidence, not happy with claimant swanning into court with nothing in the way of evidence. Judge exercising discretion. I lose !
this shouldn't be happening in courts in this land. There should be strict truth to some degree. It's wrong !

[pt2537]

Re: Small claims court statute barred personal loan debt

Hi thanks, yes I see how they are working it.
my case as its appeal not retrial, I feel hinges on evidence, not happy with claimant swanning into court with nothing in the way of evidence. Judge exercising discretion. I lose !
this shouldn't be happening in courts in this land. There should be strict truth to some degree. It's wrong !

you cannot adduce new evidence on appeal, not easily anyway, the case law for this is Ladd v Marshall.

Appeals are governed by CPR rule 52 and Practice Direction 52.

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Hi so I hear. If claimants have no original documents whatsoever and there case is based on photo copy's, should a judge be accepting a case with no evidence ! Surely it should be thrown out. I feel it's stretching discretion to a dangerous level, more akin to a Kangaroo court

[JunoJuno]

Re: Small claims court statute barred personal loan debt

I have put an appeal in ' a forlorn hope ' not expecting it to get past permission to but someone's got to fund these jokers.
The selling on of personal debt should be stopped but if not the buyer should be limited to a 100% profit on the purchase price not the full amount. Banks etc should do their own dirty work.