Small claims court statute barred personal loan debt

[JunoJuno]

Thought this maybe of help to others and myself !
have defended a claim against me for repayment of a personal loan, and just lost in court :/

my defence was that it was statute barred being over six since last payment. Action being taken against me after six year period.

first off had hearing for directions. Claimant only had photo copy's no original paperwork. Judge stated copy's not admissible ( is this a fact or just him ? ) and that originals would have to be produced.
was ask if I would proceed there and then on copied evidence, or proceed to hearing proper. Decided to continue to main hearing, as there was a good chance claimant couldn't come up with original paperwork !

main hearing different Judge. Claimant still only had copy's, but judge dismissed first judges comments re originals, saying 'she didn't know what he had said as she wasn't there ! She accepted claimant argument that six years started on default date backed by BMW v Hart court of appeal case history which was specific to HP contact, not personal loan. She dismissed my defence of last payment date as cause of action !

so stitch up or what ?

question do I have a case for appealing this judgement ?
do hearings for directions carry any weight and are they recorded ?
any help with drafting an appeal would great

should it it be an appeal or should I ask for set a side or are these the same thing in this case ?

judge said before we started that we could appeal again did she mean ask if we could appeal or was that permission to appeal ???

14 day time limit ? But from when, her judgment in court or when we get hard copy in post ?

Any thoughts guys

[Amethyst]

Re: Small claims court statute barred personal loan debt

Re BMW v Hart - For information
http://legalbeagles.info/forums/show...563#post738563

[Amethyst]

Re: Small claims court statute barred personal loan debt

Sorry to hear that Juno, but not entirely surprised. The arguments are tough for a litigant in person - BMW v Hart particularly. Do you now have a forthwith judgment ? If so you will want / need to apply for redetermination to your offer of £5 a month as you aren't getting any joy via the claimants, else you risk them taking enforcement measures.

[JunoJuno]

Re: Small claims court statute barred personal loan debt

Hi guys a little update. I put my appeal in on grounds that no evidence had been brought to court only photo copy's and self certified statements. But my appeal wasn't allowed, surprise surprise ! criticise a judge �� unless your Poldark and your fecked.
so In reality judges are going ahead with these cases with no genuinely verified evidence, this can't be right ! But what's to be done ? So guys beware. But thus far I have heard nothing from claimants since my offer of £5 a month ! �� Bracing for it hitting the fan.
thanks again for everyone's help
juno

[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.

[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

[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 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 !

[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

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.

[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

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 ???

[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)

[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

@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.