Afternoon Guys,

I've been helping a colleague with trying to sort out her debts and creditors over the last couple of years and so far things have gone well.

However, 2 days ago, she received a MCOL claim form from a debt from an old bank account not used since 2003. She has said that she has made no payments nor has acknowledged this debt since then so it's statute barred.

I have trying to fill in the defence online and a struggling how to word it specifying section 5 of the limitations act. She has already sent a letter, which we got from the national debt line, via signed for, to the dca but just need to word it.

Can anyone assist. I've spent the afternoon trawling through CAG and 'tinternet and can't find any examples.

Boris Beaver

short version;

the claimants claim is denied.

it is statute barred by virtue of stat limitations act

if definitely sure is barred, and there is nothing else to it, that should do it? is an absolute defence. for them to prove/respond otherwise, but could word it out if required.

Thanks for that, we have come up with the following:

Under section 5 of the Limitation act 1980, this debt is statute*barred due to no written acknowledgment or payment made by myself* to the HSBC account detailed in the particulars of claim within*the last six years.

Any comments?

Here is a form of limitation defence to a claim. There may be other grounds of defence in your particular case, but this defence alone will serve to defeat the claim assuming the facts stated in it are true.

1 The Claimant's claim was issued on (date).

2 The Claimant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

3 The Claimant's claim to be entitled to payment of £x or any other sum, or relief of any kind is denied.

Regards

Andy

We have also sent the claiment that standard statute bar letter by signed for first class. Should this also be mentioned in the defence?

We have also sent the claiment that standard statute bar letter by signed for first class. Should this also be mentioned in the defence?

No

The defence was submitted and she's now had a letter from MKRR stating they do not accept her defence. Can someone enlighten me what happens next?

Well their not likely to are they? .....you do nothing they have to signify if they wish to proceed...and if they do the Court will inform you of the next stage.

Regards

Andy

Now received a letter stating that the case is suitable for the multi-track. There is a N181 form attached to complete and return by the 5th July 2013. Any help how to complete this form would be welcome.

Multi track? How much is the debt?

£25k

£25k

Is it a business overdraft?

No personal - it appears it was a number of loans consolidated into one in the late 90's

A s far a my colleague can remember, it wasn't an overdraft but a loan consolidation. The last time that the account was used was about 2002. She has made no written acknowlegement or made any payments into that account since then. She has also move house four times since then.

It may be a suggestion to examine this more carefully. Not wishing to cause any undue alarm, but was this a fixed sum loan for instance if so what were the terms.

She has no paperwork relating to this loan. As, I've said, she's moved four times since the account was last used. It's definately statute barred and am wondering if they are trying for a default judgment. It's cost them £300 to make the claim and they have to pay another £220 for it to continue.

Possibly; Did they mention an agreement in there POC.

Was there any formal consolidation loan issued.

boris

fair points. as andyorch pointed out stat bar runs from the 'cause of action' then subject to any subsequent payments/deemed acknowlegements which would reset the 'clock'. when were these? what is their particulars of claim?

boris

fair points. as andyorch pointed out stat bar runs from the 'cause of action' then subject to any subsequent payments/deemed acknowlegements which would reset the 'clock'. when were these? what is their particulars of claim?

Yes and of course the COA can occur some time after the last payment of course, particularly if the agreement has not been terminated.

Probably not the case here, but should be investigated nevertheless.

Here is the particulars of the claim:

The claimant claims the sum of £25,305.19 being monies due from the Defendant(s) to HSBC Bank Plc under a bank account facility regulated by the Consumer Credit Act 1974 and assigned to the Claimant on 08/12/2011.

 

The Defendant(s)'s account number was xxxxxxyyyyyyyy. It was a term of the bank account that any debit balance would be repayable in full on demand. The Defendant(s) has failed to make payment as required by the statutory default notice served by HSBC Bank Plc. The Claimant claims the sum of 24,305.19 and costs.

The Claimant has complied far as is necessary, with the Pre-Action Conduct Practice Direction

It's interesting to note that this debt would already have been statutory barred before it was assigned to them.

Here is the particulars of the claim:

 

 

 

It's interesting to note that this debt would already have been statutory barred before it was assigned to them.

I wouldn't say that they have complied it seems very sparse to me.

I would still put them to proof that the debt was not statute barred of course.

The sum claimed needs to be particularized, how much was the debt and under what kind of agreement, when was the sum recalled and the alleged agreements terminated, how much is charges and default sums.

They say that a default notices was issued, do they mean notice under section 87 of the cca, this would infer that it was a loan and not just an overdraft, so when was this notice issued, presumably the agreement was terminated after this was not remedied.(this would be the COA date)

They say it is a regulated agreement yet the sum is over the statutory limit of £25k which would have been applicable at the time.

That sort of thing.

If they are quoting the Consumer credit act 1974, can we send them a CCA request?

I think you would be better served asking for disclosure under CPR.

If this is an overdraft there would be no agreement anyway and no requirement for them to comply with a section 78 request, if it was a fixed sum loan agreement you could give it a a try, although they can just fabricate one anyway.

No what you need is to get them to prove that the debt existed and that all sums are due. Someone on here will coma long and advise you on which CPR to use I am sure.

Following

If this is an overdraft there would be no agreement anyway and no requirement for them to comply with a section 78 request, if it was a fixed sum loan agreement you could give it a a try, although they can just fabricate one anyway.

You should still get a statement of account via such a request, don't you?