Small claims court statute barred personal loan debt

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Will check timeline etc but don't forget I had hearing for directions then got a little later date for main hearing, I think this is all I put in but will check thanks

[R0b]

Re: Small claims court statute barred personal loan debt

If that was your defence then youre in real difficulty procedurally.

There is no statement of truth per CPR 22 and PD 22.

The pleading doesnt appear to comply with CPR 16 either

Appealing will be very tricky as a result, if i were on the other side i would be considering a respondents notice taking the above points as alternate grounds to uphold the judgment.

Would be interested to hear Robs veiw on this too,.

Completely agree, there seem to be procedural non-compliance and there is the potential for them to raise these points in the appeal. However, in defence of that argument you could say that the judge exercised discretion and allowed the defence as it is and the issue of non compliance with PD16 was not raised by the claimant. Still doesn't prevent them from raising the faults though.

The issues I see so far is:

- Judge not give proper reasons for judgment, did not confirm date of causation. Did not allow defendant to make full submissions and question validity of claimant's evidence.
- (potential) judgment obtained by fraud in that they claimed that there was a £20 payment made when there does not appear to be. Making matters worse the claimant's solicitor has certified this when it should have been the bank, potential contempt of court.
- Faults with the default notice as pointed out by nemesis

Appealing will be always be tricky on this one but for the amount judgment is has been given, the question is up to Juno as to whether an extra £120 for appeal will be worth the money to potentially have it dismissed.

I am not saying there will be a definite success in appealing there will be some obstacles and you will have to show on the fraud argument that you could not have obtained the evidence in time for trial such as bank taking too long or again if you did then you were given no option to present this to the court as the judge already made her decision.

[JunoJuno]

Re: Small claims court statute barred personal loan debt

I don't think I received a response pack ? Am struggling with the sort of language I should use re these issues, I know you said brief history etc do I just do it in plain English ???

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Does this carry any weight re sentence original documents.
or is it just a standard letter/notice ???
the judge dismissed it as not mean that the claimant had to produce originals, and that photo copy's were admissible as they were covered by signed letter from claimant solicitor.
surly this is wrong ?

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Does the judge have the power to accept a case completely based on photocopys self certified by the claimants solicitor. Is that within their discretion ? Would it be a reason to appeal the judgement ? I mean how could anyone even be sure the debt is they'res to collect ?

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Hi did you get chance to draft a template ?

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Rob A start on statement :/

[R0b]

Re: Small claims court statute barred personal loan debt

Hi Juno,

I've attached a document you can use to start off your arguments below, its a starting point. You can fill in the background and facts section. Have a go at writing something in the grounds, I have limited time this week so can;t dedicate a good amount of time to this but if you wish to pursue it hopefully we can all chip in and cobble something together. Again the risk in appealing is enitrely your choice so before you begin, make sure you are happy that you wish to appeal this.

As for the solicitors signing the document, it could be argued that it should have been certified by the bank and not the solicitor. They can't certify that the screenshots are correct if they do not work for the bank, even still if they certify it then that would amount to contempt if found to be infcorrect.

Have you check with your bank yet to confirm whether the £20 payment has been made?

[Guest]

Re: Small claims court statute barred personal loan debt

I don't think I received a response pack ? Am struggling with the sort of language I should use re these issues, I know you said brief history etc do I just do it in plain English ???

When you get a claim through the post, you get the claim form and a number of forms attached to it. This is what's known as the response pack.

• N1 – the claim itself;
• N009 – Acknowledgment of service and instructions;
• N9A – Admission form;
• N9B – Response and Defence/Counter Claim.

You can submit your defence either by post on form N9B or online on the MCOL website. What did you write as your defence?

[JunoJuno]

Re: Small claims court statute barred personal loan debt

I got a pack when I first got claim from Northampton, I replied online. But got nothing after hearing for directions, the judge did say I would be getting pack but nothing came so I just put the letter in. Repeating the debt statute barred. As the letter I posted above.

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Thank you Rob much appreciated, yes am giving it a go you never know last throw of the dice !
14 days up on Weds,

[R0b]

Re: Small claims court statute barred personal loan debt

Well as PT has said, if the judge has not giving reasons for granting permission set out in the relevant form then we will just make reference to it in the facts. Therefore I would say the 21 days would apply, so might have enough time to submit something sufficient in that time and iron out the details

[Amethyst]

Re: Small claims court statute barred personal loan debt

I really don't think appealing is a great idea I'm afraid. The only argument is on statute barred, and arguing against the judges reliance on BMW v HART. We have a fixed term loan that would have terminated in 2013 ( so within stat barred period) and of which the default notice was in Jan 2010 - the claim was issued August 2015, so again that is within limitations.

Last payment however was April 2015 - so that would, or a month after that, if it wasn't for BMW v Hart, be the cause of action and that's what you'd be left arguing on. However the terms don't create any termination for a missed payment.

So the appeal would have to be that last payment or first missed payment is cause of action in a fixed term loan. It would have to be an argument that BMW v Hart doesn't apply because that was a different type of agreement.

Last throw of the dice is fine, but you have to be fully aware of the costs risks should you fail. Despite being small claims at the moment, you aren't completely protected and it could easily add a couple more £k to the judgment debt.

With an appeal you can't go back in and add new arguments that weren't in the original case - so you've lost the opportunity for arguments on the full agreement not being provided under the CCA, and any default notice and assignment arguments there may have been.

[Amethyst]

Re: Small claims court statute barred personal loan debt

Ah also from [MENTION=7765]Joanna C[/MENTION];

If the loan terms came to an end in 2013 then unless the agreement was formally terminated by the creditor prior to that ( and service of a default notice would not I think be sufficient alone ) the date of cause of action for limitation purposes does not commence until the agreement end.

If you argue that the DN is defective then that effectively removes any chance of persuading the court that the debt is statute barred. As it appears to be a fixed sum loan agreement then the date of cause of action for statute barred does not begin until the end of the loan agreement in 2013.

The DN issue itself is a red herring in this particular case because if it was issued in Jan 2010 and the claim issued in August 2015 then clearly the claim is not statute barred as it is a fixed sum loan agreement.

The defence is very sparse and only pleads the debt is statute barred and I agree with @PT2537 that this will cause you problems on appeal. I think you need to consider the cost risk of appealing as with the claim amount being nearly £10k it is likely that the Claimant if successful in opposing your appeal would be awarded costs against you

[R0b]

Re: Small claims court statute barred personal loan debt

@Amethyst / @Joanna C

Could you explain the reasoning behind the date beginning from the end of the agreement rather than the date of the DN let's say?

My thoughts below:

Prior to BMW v Hart, you had the good law of Hemp & Garland and Reeves v Butcher which has stood the test of time (BMW v Hart being the latest one as distinguished from these cases). So under Reeves, it was held that the cause of action accrues at the earliest time the action could have been brought.

The more modern day equivalent is that a DN is required under the CCA before any action either to terminate or take legal action against a debtor for a failure to pay, 14 days in this case. Therefore when a debtor fails to make the instalment 14 days after the DN is issued, that becomes the earliest date on which an action can be brought.

As I understand it in BMW and correct me if I am wrong, is that firstly the case was not regulated by the CCA and so the court relied on the terms of the contract between the parties. The wording of the terms appear to suggest that as the court has pointed out entitlement to the sums may only apply once notice has been given.

Aside from the facts here that the terms do not specifically state that the agreement has to be terminated with notice in writing or the second distinction being that the agreement was regulated by the CCA and before they could terminate the agreement a DN must be issued.

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.

Even if any of the above is doubtful, surely there is an argument for unfair relationship / unfair contract term to be made. Obviously not in this case but possibly future cases?