Clarification re Statute Barred

[letitbeme]

 

Can anyone clarify the issue regarding Statute Barred.

 

I have just spoken to a solicitor regarding Statute Barred.

 

He said “ Because the debt is a rolling credit agreement (Credit Card) the six years starts on the default notification date and not on the last payment date”

 

Has anyone got hard and clear documented proof of what the starting point is regarding Statute Barred

 

I have read hundreds of threads and posts stating it is one thing and then another saying it is something completely different.

 

This is a big forum, surely someone has a pointin law relating to it.

I hope this thread clarifies it once and for all

 

If you have arrived at this Post looking for a little clarity regarding STATUTE BARRED then the following may help

 

In relation to the claimants defence paragraph 9 as to whether the limitation period had expired in relation to the (cause of action) default notice issue date ( ) and the date on which the claimant issued proceedings ( ), the courts attention is drawn to the following point – the cause of action occurred when the credit agreements terms and conditions where breeched by the non payment on the account which occurred in Oct and Nov 2000, and thus the limitation period had expired six years later in Oct and Nov 2006. Accordingly the proceedings issued in Mar 2007 had been commenced four months too late

 

 

As a matter of public policy Statute Barred provides certain limitations of time within which claims must be brought. Where the action is commenced in relation to a breach of a credit card agreement, the limitation period will be six years and will start from the date that the plaintiff acquired knowledge of the relevant breech of the credit card agreement.

Edited July 5, 2008 by letitbeme
New twist in case

[tiglet]

It is the date when last a payment was made or the debt acknowledge in writing.

 

As a default can be issued at any time after the account has been defaulted, this is of no relevance. The law you are looking for is the Statute of Limitations Act 1980.

[letitbeme]

Hello tiglet

 

 

 

He said “ Because the debt is a rolling credit agreement (Credit Card) the six years starts on the default notification date and not on the last payment date”

 

 

So the statement regarding "rolling credit" has no relevance to Statute Barred

 

LIBM

[sequenci]

Hello there,

 

To answer your query, if the time starts running from when the agreement was 'defaulted' creditors would NEVER send default notices out. It is suggesed that the time starts to run from the date of default which would be where, under the terms of the agreement, the entitlement for the creditor to sue for the whole amount starts. Usually this may be after two or three missed payments although most people just assume it is from when the last payment was made.

 

A default notice is a procedural bar and has nothing to do with limitation periods.

 

' A cause of action can still accrue, i.e. time start to run, even though a claimant is prevented from suing by a statutory procedural bar which precludes the issue of proceedings '

[letitbeme]

Hello sequenci

 

On a point of interest - if the debt is over six years old and the creditor states “there are no statements available for this account because it is past the six year period “. How can the creditor pinpoint the start of the Statute Barred period.

 

Regards LIBM

[sequenci]

Hello sequenci

 

On a point of interest - if the debt is over six years old and the creditor states “there are no statements available for this account because it is past the six year period “. How can the creditor pinpoint the start of the Statute Barred period.

 

Regards LIBM

 

Well the onus is on the creditor to prove they have the right to chase for payment. If they cannot prove they do then the debt would be statute barred. The great thing about the Limitation Act is that the burden of proof firmly lies with the creditor, if they cannot prove that a payment/acknowledgement has been made within the last six years they would be scuppered!

[letitbeme]

Thanks sequenci.

[rudy1]

I think sequenci is right about statue barred dates, debt line advised that it is the first date from when they could of taken action, ie the date you were late for your next payment i suppose at the point they know you missed a payment. It so frustrating i was given so many different views on where i stand. It should really just be six years from last payment, this would make things a lot clearer. I did read the other day that they are changing it to 3 years but not yet unfortunately, ha would make DCA job harder.

[letitbeme]

Has any one got any threads to actual statute barred case history

[rudy1]

if you google national debtline, then search statue limitation its on there, the goverment guidelines.

[sequenci]

first date from when they could of taken action.

you would need to check the agreement because some may state there would need to be a few missed payments before they could bring action, especially when you start taking mortgages and secured loans etc.

 

It so frustrating i was given so many different views on where i stand.

the actual statute is pretty clear to me, it took some reading tho!

 

I did read the other day that they are changing it to 3 years but not yet unfortunately, ha would make DCA job harder.

they *are* trying but as you can imagine the debt collection industry as gone mad about it.

[letitbeme]

Bump

Has any one got any threads to actual statute barred case history

[sequenci]

What excactly are you looking for? I could possibly help but I'm just a little puzzled by the stuff you need!

[rudy1]

do you know when you made your last payment?

[letitbeme]

Hi. sequenci

 

 

The Particulars of the Claim (POC)

 

The POC has no documents attached backing up the claim

No default notice has been sent to me.

The debt is statue bar

No assignment notice has been sent to me

No account statements have been sent to me

No breakdown of the balance

 

I don't want to confues you, so when you've read the outline send me a quick reply and I will fill in the blanks

[sequenci]

Can you confirm that you have NEVER made a payment or acknowledged the debt in writing previously?

[letitbeme]

Hi sequenci

Paul (pt2537) has helped me with my defence . I am just trying to hone the arguments within that defence .

My first point is MBNA and the DCA will not give me access to account statements because of the six year time frame.

My second point is -I do not know when and if a payment was made on this account as it was not being serviced at my home. All I can say is that I have not made any payments to this account nor have I acknowledged this account since it’s arrival (2 - 10 - 2000)

It has been pointed out to me that this so called friend may have made a payment on this account within the six year time frame for Stat Bar. Which would rule out my first line of defence

[tiglet]

Would it? afterall, YOU have not made a payment or acknowledged the debt.

 

Did you get the police involved?

[letitbeme]

 

 

Due to the information gathered, I believe that the friend who stayed with me sometime ago took the card whilst I was away and used this card to run up the outstanding balance. I did not receive any statements as this friend changed my address to their previous address to stop any mail from MBNA reaching me. I have contacted the Police and reported the theft and was issued a crime ref no..

 

 

 

Have reported it to MBNA

 

I phoned MBNA yesterday "

Said they where still looking for the information that I have requested and there is nothing for them to send at the moment”

I have a section in defence requesting the information

[letitbeme]

Hi tiglet. Sorry for not acknowledging your input with a Hi. I welcome your input.

Regards LIBM

[sequenci]

Would it? afterall, YOU have not made a payment or acknowledged the debt.

 

Tiglet is right.

 

A payment by a third party is not a payment by a 'person liable' under s29(5) unless that person is acting as an 'agent' of the debtor. You could argue that any payments made by that person are not 'in respect' of the debt.

[sequenci]

BTW have you sent a SAR to these people?

[letitbeme]

Sent SAR rec. they recived it 10 April - Link replied with "no account history available - relevent docs have been requested from MBNA will forward them when we recive them" . what's the time frame for my request?

[sequenci]

40 days.... quite a while ;(

[letitbeme]

If I haven’t received documents by the time I get to court - what are my options?