Small claims court statute barred personal loan debt

[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 !

[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

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 !

[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

Hi the BMW v Hart HP judgement shifts the starting point of the six years forward from the last payment made point.
So am I wrong in assuming regarding simple personal loans the recognised starting point for the six years is the last payment date ?
BMW v Hart did in reality have a bearing on my case, as I lost because of it. But the judge shouldn't have excepted it as it doesn't pertain to personal loans.
but please tell me were my thinking falls down ???

re default they didn't specify which only that it shorted the time period removing the statute barred

[R0b]

Re: Small claims court statute barred personal loan debt

That is why the date of cause of action is very debatable. On the one hand you could argue the last payment date, but on the other you could argue the date for demand or when notice is given to terminate. It varies from case to case and one thing to be aware of is that in case law, its the underlying principle and decision that is applied to other cases which could be completely different, for example a case decided about land may be applied in a commercial contract dispute. Cases do not necessarily need to be the same types of contract to apply.

So they've used BMW v Hart to argue that the 6 years begins on the date when notice to terminate was given (i think, or the date that demand of the sums was given) and not the payment date which could be earlier as in BMW v Hart. In that case Hart's last payment was 2 months earlier than the termination notice by BMW and the court accepted that based on the terms and conditions of the contract, the clock started when notice of termination was given and not the last payment date.

If no date for determining the clock was given then there could be a potential appeal because that is required to work out whether the claim is barred.

Do you recall being given a default notice letter at any point or did the Particulars of Clai state when the Default Notice was given?

[Guest]

Re: Small claims court statute barred personal loan debt

Hi the BMW v Hart HP judgement shifts the starting point of the six years forward from the last payment made point.
So am I wrong in assuming regarding simple personal loans the recognised starting point for the six years is the last payment date ?

Yes, however, I was wondering why the judge didn't simply use the £20 payment instead.
The last payment date cannot be the cause of action because the creditor would have no way of knowing you wouldn't be making any further payments, how would they? So they have no cause of action until you have at least missed one payment, which for most loans, would be a month after your last payment. However, the Consumer Credit Act requires a default notice to be issued before the agreement can be terminated, so things can get a bit complicated.

BMW v Hart did in reality have a bearing on my case, as I lost because of it. But the judge shouldn't have excepted it as it doesn't pertain to personal loans.
but please tell me were my thinking falls down ???

re default they didn't specify which only that it shorted the time period removing the statute barred

It would be a good idea to acquaint yourself with the case in question and the discussion surrounding it to see whether it should have applied or not: http://www.legalbeagles.info/forums/...e-Barred-Debts

[JunoJuno]

Re: Small claims court statute barred personal loan debt

This may help

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Having read through some of that looks like I am fooked ! Re appealing

[Guest]

Re: Small claims court statute barred personal loan debt

This may help

Having read through some of that looks like I am fooked ! Re appealing

I don't see any mention of BMW v Hart on there but they are raising other arguments.

With regards to the DN being the cause of action, well, yes and no. The CCA does indeed say a DN is a requirement before the account can be terminated, the full balance becomes payable, etc., however, the creditor has discretion regarding the timing of the DN. There is no reason not to issue one as soon as you stop paying, if they decide to wait six months it's their decision, they would have had cause to take that action much earlier than that. There was a case where a judge ruled in favour of the creditor based on the DN date as the cause of action but it was a county court judgment so did not set precedent. In fact, the judgment was later successfully set aside, after the defendant sought legal advice.

There is the matter of the £20 payment which you may or may not have made. I'd have asked them to show HOW that payment was made and WHO made it. A payment resets the clock if it's made by the debtor or someone acting as the debtor's agent (for example, a debt management company with your authority). If the payment wasn't made with your authority then it doesn't count, otherwise all creditors will be making small payments into their own accounts to keep them alive indefinitely.

[R0b]

Re: Small claims court statute barred personal loan debt

They claim that the DN is supposedly Jan 2010 which lets say for name sake is correct, there is good reason to argue that the DN is the date of cause of action because that is a demand for payment of the outstanding sums which failing to do so will result in repudiation e.g. deliberate rejection of your obligations. Therefore, if the date of cause of action was later than this date (presuming its 14 days from the date of the DN as usual to comply) then they would have had to give written notice to terminate, if they didn't they could only have accepted termination by repudiation as a result of bringing the claim to court. and given the length of time it is arguable that they have not terminated the contract but rather affirmed it. If they lost their right to terminate they could only claim the missing monthly payments and not the remaining balance.

Equally, I believe that it was the Court of Appeal case of Waragoswki (to be confirmed can't remember full case) which oddly was another hire purchase dispute, said that a person does not repudiate the agreement if missed one or two payments but after that it could be construed as repudiation. So even if repudiation took effect a in march/april 2010, they would still be out of time to bring a claim if the issue date was in August 2015.

Obviously you would have to show that the £20.00 was not in fact correct and as Freshfield has said, you want to know how the payment was made and who made. Perhaps a witness statement required from the original creditor confirming that payment was actually made might be needed, any reluctance to do so would indicate that there may be something deceitful about it.

Ultimately, you have very little time to appeal, there is the possibility that the appeal may be successful on the grounds that the judge has given an explanation as to the date of the cause of action but also the defendant has failed to show evidence that the payment had been made (if it was a screenshot) as they can't confirm how it was made and who by which would give rise to uncertainty and appeal should be set aside, especially if you had no opportunity to question the validity at the hearing.

Its a risky decision and one which only you could make - even if you miss the deadline there may be grounds for a later appeal if you decided to investigate further and it turns out that the payment was in fact false, that would be grounds for appeal but you would need to be fast.

If unsuccessful, costs should be applicable to small claims if the appeal is in the county court as it is still falls within small claims track.

come to think of it you could actually try to set aside judgment by fraud first before appealing if you wanted to go that route.

[nemesis45]

Re: Small claims court statute barred personal loan debt

A DN is notice that a default will be placed if the amount set down in the notice is not paid i.e. arrears not the full amount.

[R0b]

Re: Small claims court statute barred personal loan debt

A DN is notice that a default will be placed if the amount set down in the notice is not paid i.e. arrears not the full amount.

Possibly yes but for example it could also mean an indication to terminate the agreement, I suppose it is dependant on the wording of the agreement but for example the DN below says that failure to comply will result in termination of the agreement.



Equally, you could say its a formal demand for payment as required by CCA. Failing to do so results in repudiation, failure to accept the repudiation in a reasonable time would lose the right to terminate which means at best a claim for the missing payments instead of the total sum.

Unless, there's any case law out there already that's explored that specific line of argument, then its of no use.

[JunoJuno]

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.

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

[nemesis45]

Re: Small claims court statute barred personal loan debt

In my opinion there is justification for saying 2 "bites of the cherry " is enough and as [MENTION=23709]rob[/MENTION] has said strike out is a very attractive option.

nem