Small claims court statute barred personal loan debt

[R0b]

Re: Small claims court statute barred personal loan debt

Why do you think BMW v Hart has no bearing on your case?

When you say default date are we talking the date of the default notice letter? Or the default date which is placed in your credit file?

[JunoJuno]

Re: Small claims court statute barred personal loan debt

My own take on this is that The BMW v Hart HP case has no bearing whatsoever on my simple personal loan contract, and the judge should have dismissed.
and the directions re original documents needed at hearing should have seen off the photo copied evidence. Therefore claimant had no case !

So would the above run as reason for appeal with any chance of success ??? As have 8 days left to appeal !

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Sorry ! Have messed up that post !

[JunoJuno]

Re: Small claims court statute barred personal loan debt

If a payment was made in October 2010, that would have reset the clock and there would be no need to refer to BMW v Hart.

Re above, claimant produced a photo copy statement of my alleged account at the door of the hearing for directions, I did not recollect making any £20 or part payments ( it was dated Oct 2009 ) after the last full payment 21/5/2009 I told this to judge, he said the photo copy wasn't admissible. Hence at hearing proper claimant had submitted the BMW v Hart, as they did not have original statement document. Presumably if I had had the same judge he would have said the same again and the BMW v Hart was claimants fall back argument.

Did you make that payment? It's rather odd that there should have been a one off, random payment of £20 made over a year after defaulting. If the judge agreed with the existence of this payment, why then refer to BMW v Hart?

Re above, Judge didn't agreed existence of £20, she stated she was going with BMW v Hart judgement, her comment on the legitimacy of photo copied evidence was that as it was accompanied by a signed letter by the solicitor employed by the claimant it was admissible !

Under ix, it says that if June did any of the things described in clauses i to ix, the creditor may terminate the agreement and, upon written request from them, Juno should repay the amount outstanding in full.

It's very likely that the OC would have written to Juno demanding full repayment at some point, however, as this is subject to the provisions of the CCA, a default notice should have been issued prior to the demand for payment, as an agreement regulated by the CCA cannot be terminated without issuing a DN first.

Do you have copies of these documents, i.e. the DN and termination notice?

Only one I think supplied by claimant at court. I do not have any of the stuff re this account as I got rid of it, apart from the contract. Didn't think they would come after me in the 11th hour, silly I know !

That would be if some of the prescribed terms were absent at the time the agreement was signed or entered into, not if there were extra terms that are not prescribed.

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You'd normally get a notice of sums in arrears before the DN.

What was the date that the judge considers to have been the cause of action in this case?

Judge second hearing went with the default date as per BMW v Hart.
were as the direction judge was going with payment dates, as he basically said if claimant had had original statement with them instead of photo copy it would have been fair cop !

Re: Small claims court statute barred personal loan debt

@freshfield,

Yes I found the clause now thank you, what about if the agreement was pre-2007 and they have no executed agreement, does s.127 that was in force at the time apply?

without the DN document and all relevant information its difficult to make any further suggestions

s.127(3) was repealed on the 6th of April 2007. It referred to there not being a properly executed agreement with all the prescribed terms at the time the agreement was made. IMHO this was much more common with credit cards rather than loans. Credit cards were being peddled everywhere and you found leaflets and application forms in all sorts of places, from airports to Sainsburys! The actual terms were often sent with the card carried, i.e. not at the time the agreement was entered into. This wasn't so much the case with personal loans, I took out one in branch in 2006 and I recall being presented with a number of pages to read and sign, containing every possible term.

To use s.127(3), the defendant would have to make a positive assertion that he did not sign an agreement with all the prescribed terms, and they'd have to explain why they are saying that was the case. It looks like in this case, there was an agreement with the required terms, unless the defendant can say why those were not the terms that applied to their agreement. There was someone who won in court on those basis but they were able to explain how the actual amounts charged did not tally with what the agreement stated.

It's not even clear why the judge would refer to BMW v Hart when a £20 payment in 2010 would have reset the clock and yes, we'd need to know the dates on the DN and termination notice.

[R0b]

Re: Small claims court statute barred personal loan debt

[MENTION=86454]freshfield[/MENTION],

Yes I found the clause now thank you, what about if the agreement was pre-2007 and they have no executed agreement, does s.127 that was in force at the time apply?

without the DN document and all relevant information its difficult to make any further suggestions

Re: Small claims court statute barred personal loan debt

Some more info
CC claim Issue date 07 Aug 2015
last payment made 21 May 2009 note after this payment no contact made by me to creditors.

Claimants case as given to court. Note £20 rouge payment. But it was the BMW v Hart as I said that judge went for.
also other docs

If a payment was made in October 2010, that would have reset the clock and there would be no need to refer to BMW v Hart.

Did you make that payment? It's rather odd that there should have been a one off, random payment of £20 made over a year after defaulting. If the judge agreed with the existence of this payment, why then refer to BMW v Hart?

I can't see any clause in those terms which says they must give you notice in writing , to terminate if you breach the agreement?

Under ix, it says that if June did any of the things described in clauses i to ix, the creditor may terminate the agreement and, upon written request from them, Juno should repay the amount outstanding in full.

It's very likely that the OC would have written to Juno demanding full repayment at some point, however, as this is subject to the provisions of the CCA, a default notice should have been issued prior to the demand for payment, as an agreement regulated by the CCA cannot be terminated without issuing a DN first.

Do you have copies of these documents, i.e. the DN and termination notice?

When did you actually sign the agreement, was it before 2007? if it was perhaps there is an argument about it becoming unenforceable if certain terms not prescribed @nemesis45, @Amethyst??

That would be if some of the prescribed terms were absent at the time the agreement was signed or entered into, not if there were extra terms that are not prescribed.

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The original creditor would be obliged to send a default notice letter before termination. Presumably before that demand previous letters would have been sent asking for payment of the instalments. Once a default notice is sent, that would show the intention of the creditor to terminate and if the debtor fails to pay up once that deadline has elapsed, it would be at that point termination of the agreement would occur.

You'd normally get a notice of sums in arrears before the DN.

What was the date that the judge considers to have been the cause of action in this case?

[R0b]

Re: Small claims court statute barred personal loan debt

Clause I x seems to imply any conduct that the lender feels breaches the agreement allows termination.

The cause of action date is not the same as the " default " date reported to credit files.

A demand for Immediate Repayment in Full of ALL outstanding monies and of the issue of a final demand is imo the start of the relevant 6 year period in relation to LA 1980.

nem

Sorry I was not referring to default notice but the default letter that must be sent before they can terminate. Looking at the agreement again, I can see you mean Clause D.

So going back to BMW v Hart, that case was a common law hire purchase agreement e.g. an agreement based on the contract. Whereas the present issue is regulated by the CCA an so they must comply with the requirements before they can terminate - is distinguishable here as the Court of Appeal could only interpret what the contract said and not the CCA as it was not regulated.

Now my theory would be as follows:

The original creditor would be obliged to send a default notice letter before termination. Presumably before that demand previous letters would have been sent asking for payment of the instalments. Once a default notice is sent, that would show the intention of the creditor to terminate and if the debtor fails to pay up once that deadline has elapsed, it would be at that point termination of the agreement would occur.

[nemesis45]

Re: Small claims court statute barred personal loan debt

I can't see any clause in those terms which says they must give you notice in writing to terminate if you breach the agreement?

I'm no expert on loans and credit card debt but perhaps someone might be able to answer some of the questions below.

When did you actually sign the agreement, was it before 2007? if it was perhaps there is an argument about it becoming unenforceable if certain terms not prescribed @nemesis45, @Amethyst??

You said rogue £20.00 payment, are you saying you never made it?

In relation to BMW v Hart, the first thing to note is that the contract was not regulated by the CCA so the court would have looked to the terms for the date of cause of action. As a lender has to give you a default notice did this take place and what was the date of the default notice?

Did they give you notice in writing of termination, if so what was the date they are claiming that happened?

Clause I x seems to imply any conduct that the lender feels breaches the agreement allows termination.

The cause of action date is not the same as the " default " date reported to credit files.

A demand for Immediate Repayment in Full of ALL outstanding monies and of the issue of a final demand is imo the start of the relevant 6 year period in relation to LA 1980.

nem

[R0b]

Re: Small claims court statute barred personal loan debt

I can't see any clause in those terms which says they must give you notice in writing to terminate if you breach the agreement?

I'm no expert on loans and credit card debt but perhaps someone might be able to answer some of the questions below.

When did you actually sign the agreement, was it before 2007? if it was perhaps there is an argument about it becoming unenforceable if certain terms not prescribed [MENTION=55034]nemesis45[/MENTION], [MENTION=6]Amethyst[/MENTION]??

You said rogue £20.00 payment, are you saying you never made it?

In relation to BMW v Hart, the first thing to note is that the contract was not regulated by the CCA so the court would have looked to the terms for the date of cause of action. As a lender has to give you a default notice did this take place and what was the date of the default notice?

Did they give you notice in writing of termination, if so what was the date they are claiming that happened?

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Claimants case as given to court. Note £20 rouge payment. But it was the BMW v Hart as I said that judge went for.
also other docs

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Loan contract see attachment

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Some more info
CC claim Issue date 07 Aug 2015
last payment made 21 May 2009 note after this payment no contact made by me to creditors.

Re: Small claims court statute barred personal loan debt

Hi and thanks Freshfields
1. Claimant started in NH smail claims bulk centre and was stuck out, reason 'claimant hadn't got paperwork in on time' but then received letter from HN court that mistake had been made and paperwork had been in on time via online submission!

There is no requirement to submit any paperwork with claims issued via the bulk centre, there may have been a bit of a confusion there. The requirement to supply paperwork at least 14 days before the hearing date is a part of the standard directions, but that comes later, once the claim has been allocated, mediation has failed/not taken place and a hearing is scheduled. If there was a directions hearing, that means this stage had not yet been reached.

also that it had been reinstated via judge and hearing in our appsence.

we had ask before this that it should be moved to our local city SC court which it then was.

i was sent date for hearing re directions. Judges first comment was he didn't know why we were have a hearing for directions ! But as we were all there let's proceed. As we did.

cant remember if they asked for summary judgement in that hearing. Or do you mean in writing after we posted my defence in to them and court ?

I meant after you submitted your defence and they received it. As the judge said, it's not usual to have directions hearings for small claims cases. One reason to have one would be when the claimant has requested summary judgment on the basis that the defence has no prospect of succeeding.

2. Part of credit agreement, and part of statement. Will check what they sent me, but think there may have remove detail of credit agreement. It was a standard Aliance & Lester personal loan taken out in the late 00s I have my own copy which they hadn't seen.

You didn't take your copy with you, did you?

the statement they produced showed last full contractual payment made which was correct.
but when claimant produced it in this hearing Judge said it wasn't admissable. As it was copy !

We we only had sight of they're statement on point of walking into hearing.

Was that payment over six years before the claim was issued? Did you make any further payments after that? We need to know how the dates stack up, i.e. last paid in xx/20xx, claim issued xx/2016.

3. Right. Second hearing. No contract detail was not gone into in hearing. Judge just said she had to go with the court of appeal judgement.

What did the judge say the cause of action was in this case?

will sort out copy's of contract for you Freshfields and post.

many thanks thus far
Juno

That would help, the devil's usually in the detail, just remove any personal details.

Would also be useful to know what you did when you received the claim, did you request any documents from them? Did you send a CCA request or a request for documents mentioned on the particulars of claim? What exactly did you put down as your defence? And how much is the judgment for?

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Hi and thanks Freshfields
1. Claimant started in NH smail claims bulk centre and was stuck out, reason 'claimant hadn't got paperwork in on time' but then received letter from HN court that mistake had been made and paperwork had been in on time via online submission!

also that it had been reinstated via judge and hearing in our appsence.

we had ask before this that it should be moved to our local city SC court which it then was.

i was sent date for hearing re directions. Judges first comment was he didn't know why we were have a hearing for directions ! But as we were all there let's proceed. As we did.

cant remember if they asked for summary judgement in that hearing. Or do you mean in writing after we posted my defence in to them and court ?

2. Part of credit agreement, and part of statement. Will check what they sent me, but think there may have remove detail of credit agreement. It was a standard Aliance & Lester personal loan taken out in the late 00s I have my own copy which they hadn't seen.

the statement they produced showed last full contractual payment made which was correct.
but when claimant produced it in this hearing Judge said it wasn't admissable. As it was copy !

We we only had sight of they're statement on point of walking into hearing.

3. Right. Second hearing. No contract detail was not gone into in hearing. Judge just said she had to go with the court of appeal judgement.

will sort out copy's of contract for you Freshfields and post.

many thanks thus far
Juno