Jump to content

Dorytime

Registered Users..
  • Posts

    23
  • Joined

  • Last visited

Everything posted by Dorytime

  1. I will help you to draft your Defence against the Claim based on statute barred. So don't worry! Dory
  2. Ok, no worries. Still complete the AOS and tick the box "I intend to defend all of this claim." You should also write a short letter to the solicitor's acting and state that this is a request under CPR r.31.14 for a copy of the documents mentioned by the Claimant in the Claim form, therefore, please provide a copy of the following: 1. The agreement(s); 2. The terms & conditions of the agreement(s); 3. The default notice; 4. The termination notice; 5. The notice of assignment; 6. The letter or letters sent pursuant to the protocol on debt claims. Request that copies of these documents are sent to you within 7 days of receipt of your letter (send it by Special Delivery so that you have proof of delivery!). Dory
  3. No, this will not be just a tactic, unfortunately. I had a quick read of your original thread and you say that your last payment was just under the 6 year period, what Defence did you put in against the claim? Dorytime
  4. Can you try and rack your brains to see if you can remember the month in 2013?
  5. Well in that case........the last time that you validly deferred the loan was in 2013 when you moved house, therefore you have not given any express acknowledgement of the loan to the assignee and their claim is statute barred! In Bradford and Bingley plc v Rashid (FC) [2006] UKHL 37, the House considered the limitation period under the 1980 Act and ss.29 & 30 and held that a debtor’s acknowledgment of the debt claimed means that the debt is not statute barred. Here are a few relevant paragraphs on the point from this key authority which clarify the correct legal position: [21] I have no difficulty in regarding the letter of 26 September 2001 as an acknowledgment of the appellants' claim within the meaning of section 29(5) of the Limitation Act 1980. In Surrendra Overseas Ltd v Government of Sri Lanka [1977] 1 WLR 565, 575E-F Kerr J said that the debtor can only be held to have acknowledged the claim if he has in effect admitted his legal liability to pay that which the plaintiff seeks to recover. But his acknowledgment need not identify the amount of the debt. [44]A debtor's written acknowledgment of his debt or other liquidated pecuniary claim starts time running afresh under the Limitation Act 1980 (the 1980 Act). Such is the effect of sections 29 (5) and 30. [79]The first issue is whether either or both of the Advice Centre's letters of 26th September and 4th October 2001, if admissible in evidence, constituted an acknowledgement of the appellant bank's claim for the purposes of sections 29(5) and 30 of the Limitation Act 1980. On this issue, I agree with Lord Brown's reasoning and conclusions in paragraphs 53-60. The letters acknowledged the existence of "the outstanding balance, owed to you" or "the outstanding amount". The appellant bank is entitled to prove the unstated quantum of that admitted balance or amount by any admissible means, including oral evidence, in accordance with the Court of Appeal's decision in Dungate v. Dungate [1965] 1 WLR 1477. By the first letter, written in response to the appellant bank's insistence on proposals for repayment, Mr Rashid was simply requesting time to "start to repay" the outstanding balance. By the second letter, written in response to the bank's reiteration of its insistence and its indication that it would consider writing off a substantial sum if Mr Rashid raised a lump sum payment "in full and final settlement", Mr Rashid was simply offering "approximately £500 towards the outstanding amount as a final settlement". In each case, he was clearly acknowledging the outstanding debt without question. Dory
  6. I'm just going to get something to eat. I'll come back on here in about 45 mins if that's alright. Dory
  7. No worries, What did you say in your letter to Erudio/Dryden's in 2016? Sorry I forgot to ask, what does the recent letter from Dryden's say? Dory
  8. On the Acknowledgement of service form, tick the box that says "I intend to defend all of this claim". When the court serves a Claim form (the N1) the Defendant has 33 days from the date of service to file his Defence, so it is absolutely important that you complete the Acknowledgement of service (AOS for short) because if you don't the Claimant can and will obtain judgment in default against you! Do you still have your own records for this loan? This will help to establish the last date you made any payment and the last date you acknowledged the loan/debt. Dorytime
  9. Oh, so you deferred the loan in 2013 when you moved house, is that correct? What date in 2013 did you defer, this is crucial to the point whether its statute barred or not! Dorytime
  10. Alright Cruet, Let's just keep things on topic please, sometimes it is best to keep your opinion....about anyone and anything to yourself. I think you would prove your humanity if you gave dx an apology, we are all strangers here, we don't know each other or whether any of us suffer from any illness or not, but the one thing we do know is that we are all here looking for help, support and advice or to give the same to our fellow people. Dorytime
  11. You must complete the acknowledgement of service form without delay, make a copy of it for yourself and then send one completed copy to the court by Special Delivery or Recorded Delivery so that you have proof of filing it in time, this must be done within 14 days of service of the N1 Claim form. The date of service will be on the Claim form or any letter from the court that you received today. Dorytime
  12. Hi, Ok, it looks like your loan is not statute barred then, because of your deferment in 2014. You probably didn't receive a notice of assignment for the loan as you moved house. Is there any information that you can think of that may present you with a Defence against the claim? Can you please post up the details of the claim, word for word please. Thanks. Dorytime
  13. your last deferment was in 2014, this is an acknowledgement of the debt for the purpose of the 6 year limitation period and extends the limitation period within the meaning of s.30 of the 1980 Act and therefore, unfortunately, this debt is not statute barred. In Bradford and Bingley plc v Rashid (FC) [2006] UKHL 37, the House considered the limitation period under the 1980 Act and ss.29 & 30 and held that a debtor’s acknowledgment of the debt claimed means that the debt is not statute barred. Here are a few relevant paragraphs on the point from this key authority: [21] I have no difficulty in regarding the letter of 26 September 2001 as an acknowledgment of the appellants' claim within the meaning of section 29(5) of the Limitation Act 1980. In Surrendra Overseas Ltd v Government of Sri Lanka [1977] 1 WLR 565, 575E-F Kerr J said that the debtor can only be held to have acknowledged the claim if he has in effect admitted his legal liability to pay that which the plaintiff seeks to recover. But his acknowledgment need not identify the amount of the debt. [44]A debtor's written acknowledgment of his debt or other liquidated pecuniary claim starts time running afresh under the Limitation Act 1980 (the 1980 Act). Such is the effect of sections 29 (5) and 30. [79]The first issue is whether either or both of the Advice Centre's letters of 26th September and 4th October 2001, if admissible in evidence, constituted an acknowledgement of the appellant bank's claim for the purposes of sections 29(5) and 30 of the Limitation Act 1980. On this issue, I agree with Lord Brown's reasoning and conclusions in paragraphs 53-60. The letters acknowledged the existence of "the outstanding balance, owed to you" or "the outstanding amount". The appellant bank is entitled to prove the unstated quantum of that admitted balance or amount by any admissible means, including oral evidence, in accordance with the Court of Appeal's decision in Dungate v. Dungate [1965] 1 WLR 1477. By the first letter, written in response to the appellant bank's insistence on proposals for repayment, Mr Rashid was simply requesting time to "start to repay" the outstanding balance. By the second letter, written in response to the bank's reiteration of its insistence and its indication that it would consider writing off a substantial sum if Mr Rashid raised a lump sum payment "in full and final settlement", Mr Rashid was simply offering "approximately £500 towards the outstanding amount as a final settlement". In each case, he was clearly acknowledging the outstanding debt without question. The above authority on this point clarifies the issue on the meaning of statute barred raised here by Billywilder and Cruet, and for any consumer for that matter. Dorytime
  14. In Bradford and Bingley plc v Rashid (FC) [2006] UKHL 37, the House considered the limitation period under the 1980 Act and ss.29 & 30 and held that a debtor’s acknowledgment of the debt claimed means that the debt is not statute barred. Here are a few relevant paragraphs on the point from this key authority: [21] I have no difficulty in regarding the letter of 26 September 2001 as an acknowledgment of the appellants' claim within the meaning of section 29(5) of the Limitation Act 1980. In Surrendra Overseas Ltd v Government of Sri Lanka [1977] 1 WLR 565, 575E-F Kerr J said that the debtor can only be held to have acknowledged the claim if he has in effect admitted his legal liability to pay that which the plaintiff seeks to recover. But his acknowledgment need not identify the amount of the debt. [44]A debtor's written acknowledgment of his debt or other liquidated pecuniary claim starts time running afresh under the Limitation Act 1980 (the 1980 Act). Such is the effect of sections 29 (5) and 30. [79]The first issue is whether either or both of the Advice Centre's letters of 26th September and 4th October 2001, if admissible in evidence, constituted an acknowledgement of the appellant bank's claim for the purposes of sections 29(5) and 30 of the Limitation Act 1980. On this issue, I agree with Lord Brown's reasoning and conclusions in paragraphs 53-60. The letters acknowledged the existence of "the outstanding balance, owed to you" or "the outstanding amount". The appellant bank is entitled to prove the unstated quantum of that admitted balance or amount by any admissible means, including oral evidence, in accordance with the Court of Appeal's decision in Dungate v. Dungate [1965] 1 WLR 1477. By the first letter, written in response to the appellant bank's insistence on proposals for repayment, Mr Rashid was simply requesting time to "start to repay" the outstanding balance. By the second letter, written in response to the bank's reiteration of its insistence and its indication that it would consider writing off a substantial sum if Mr Rashid raised a lump sum payment "in full and final settlement", Mr Rashid was simply offering "approximately £500 towards the outstanding amount as a final settlement". In each case, he was clearly acknowledging the outstanding debt without question. The above authority on this point clarifies the issue on the meaning of statute barred raised here by Billywilder and Cruet, and for any consumer for that matter. Dorytime
  15. In Cruet's case, the deferment was not accepted as the account had been assigned, so in 2014 there was no valid deferment/acknowledgment by Cruet and therefore the matter is statute barred for Cruet. In Billywilder's case, his last deferment was in 2014, this is an acknowledgement of the debt for the purpose of the 6 year limitation period and extends the limitation period within the meaning of s.30 of the 1980 Act (posted above), and therefore, unfortunately, Billywilder's debt is not statute barred. Dorytime
  16. Section 30 Limitation Act 1980 “30 Formal provisions as to acknowledgments and part payments. (1)To be effective for the purposes of section 29 of this Act, an acknowledgment must be in writing and signed by the person making it. (2)For the purposes of section 29, any acknowledgment or payment— (a)may be made by the agent of the person by whom it is required to be made under that section; and (b)shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made.” For a debt to be statute barred under the 1980 Act, no payment and no express acknowledgement of the debt for a period of 6 years. (this limitation period does not apply to mortgages). Dorytime The 6 year limitation period begins to run from the date that the creditor's cause of action became known to him. Dorytime
  17. 19 December 2006 is the date the cause of action became known to the claimant for the purposes of the limitation period under the 1980 Act; 6 years. This fact is admitted in para.26 of Thomas Phelan’s witness statement dated 2 May 2019. The assignment of the account to the claimant took place on 18 September 2009, therefore, as of the 18 September 2009, the claimant personally knew that if he did not issue his claim before the 19 December 2012 his cause of action complained of would be statute barred and irredeemably unenforceable. The claimant issued his claim on 2 April 2014, in the circumstances of this case he is 2 years and almost 4 months late in doing so, because the limitation period in your case is 19 December 2012. The claim and the SJ application are an abuse of process and you need to put the above facts in your written statement and argue them before the judge. The witness statement alleges that by making a part payment of £5 on 17 April 2009 you have effectively extended the limitation period within the meaning of s.29 Limitation Act 1980. This is incorrect, see – s.30 of the 1980 Act below “30 Formal provisions as to acknowledgments and part payments. (1)To be effective for the purposes of section 29 of this Act, an acknowledgment must be in writing and signed by the person making it. (2)For the purposes of section 29, any acknowledgment or payment— (a)may be made by the agent of the person by whom it is required to be made under that section; and (b)shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made.” From Dorytime The claimant is also asking the court for judgment in default of defence against your partner, so it is crucial that you establish that his claim is statute barred. Dorytime
  18. Alright, Here’s a number of authorities on SJ applications: ED&F Man Liquid Products Ltd. v Patel & Anor [2003] EWCA Civ 472 Swain v Hillman & Anor [1999] EWCA Civ 3053; Three Rivers District Council v. Governor and Company of The Bank of England [2001] UKHL 16; Apvodedo NV v Collins [2008] EWHC 775 (Ch). The above authorities confirm that the correct test to be applied on applications for summary judgment is as follows: (1) the overall burden of proof falls upon the applicant; (2) the only object of the rule is to deal with cases that are not fit for trial at all; (3) the issue must be on a short point of law or construction; (4) the court must not conduct a mini-trial; (5) the criterion to be applied by the court is absent of reality (either way); (6) the applicant must establish that the defence, or claim, is fanciful and unrealistic; (7) the applicant must establish that the claimant or defendant has no real prospect of succeeding on the claim or issue; (8) the applicant must establish that the claim or issue is bad in law; (9) the applicant must establish that there is no other compelling reason why the case or issue should be disposed of at a trial; (10) complex cases of fact and law are not suitable for and not capable of being resolved under the rule, even more so where disclosure and exchange of witness statements have not taken place. In addition to preparing your written evidence (statement) in response to the SJ, you should also start preparing your skeleton argument against the SJ application, and file and serve your skeleton argument 3 days before the SJ hearing. Read through the relevant paragraphs of the above authorities on the correct test on SJ applications. You can find these authorities on the Bailli web site. Print off 3 copies of each authority and when you attend the court for the hearing, give 1 copy of each authority to the clerk to hand to the judge, 1 copy of each to the solicitor/counsel acting for the claimant and keep 1 copy for yourself. On your copy, highlight the relevant paragraph numbers so that you can easily find them and refer the judge to them in support of your arguments/submissions. From Dorytime Alright, Is there a clause in the agreement that allows the creditor to add credit to the agreement for the purpose of using that additional credit to pay late fees and charges on your account? If there is no such clause, then that would be a legally based argument that is winnable, but it might not be enough to defeat the SJ or the claim (if it goes to trial), it would though reduce your liability. Also, has the claimant produced clear proof that you have made a payment(s) in the last 6 years before he commenced with proceedings? From what I have read that you posted here, it seems that the above two points are your best defence. If you received a default notice and the information in it is not accurate/not compliant with the statutory requirements, then you should also add that fact into your written evidence against the SJ. Can you post up the SJ application and their witness statement and evidence please, so that we can see exactly what their case is. Thanks. From Dorytime
  19. Practice Direction 52B - appeals in the County Court and high court SECTION IV – INITIATING AN APPEAL 4.1 An appellant’s notice (Form N161 or, in respect of a small claim, Form N164) must be filed and served in all cases. The appellant’s notice must be accompanied by the appropriate fee or, if appropriate, a fee remission application or certificate. You can ask for permission to appeal in the Appellant’s notice. Appeals against a decision/order made by a District Judge (DJ) must be made to a Circuit Judge (CJ). The time limit is 21 days from the date of the decision/order. Appellant’s notice must be filed at the correct Appeal court, see the table below which will help you to find the correct Appeal court. Table A – Table of appeal centres for each circuit Circuit Court Appeal Centre Midland Birmingham CJC Birmingham CJC Boston Lincoln Burton -upon-Trent Nottingham Chesterfield Nottingham Coventry Coventry Derby Nottingham Dudley Walsall Hereford Worcester Northampton Kidderminster Worcester Leicester Leicester Lincoln Lincoln Mansfield Nottingham Northampton Northampton Nottingham Nottingham Nuneaton Coventry Redditch Worcester Stafford Stoke-on-Trent Stoke-on-Trent Stoke-on-Trent Telford Telford Walsall Walsall Warwick Coventry Wolverhampton Walsall Worcester Worcester North East Barnsley Sheffield Bradford Bradford Darlington Teesside Doncaster Sheffield Durham Newcastle-upon-Tyne Gateshead Newcastle-upon-Tyne Grimsby Kingston-upon-Hull Harrogate Leeds Huddersfield Bradford Kingston-upon-Hull Kingston-upon-Hull Leeds Leeds Newcastle-upon-Tyne Newcastle-upon-Tyne North Shields Newcastle-upon-Tyne Scarborough Leeds Sheffield Sheffield Skipton Bradford South Shields Newcastle-upon-Tyne Sunderland Newcastle-upon-Tyne Teesside Teesside Wakefield Leeds York Leeds Northern Barrow-in-Furness Carlisle Birkenhead Liverpool Blackburn Preston Blackpool Preston Manchester CJC Burnley Preston Manchester CJC Carlisle Carlisle Chester CJC Chester CJC Crewe Chester CJC Carlisle Lancaster Preston Liverpool Liverpool Manchester CJC Manchester CJC Manchester CJC Preston Preston St Helens Liverpool Stockport Manchester CJC West Cumbria Carlisle Wigan Manchester CJC Wales Aberystwyth Swansea Blackwood Cardiff CJC Caernarfon Wrexham Cardiff Cardiff CJC Carmarthen Swansea Conwy & Colwyn Wrexham Haverfordwest Swansea Llanelli Swansea Wrexham Merthyr Tydfil Cardiff CJC Mold Wrexham Newport (Gwent) Cardiff CJC Pontypridd Cardiff CJC Port Talbot Swansea Prestatyn Wrexham Swansea Swansea Welshpool & Newtown Wrexham Western Aldershot & Farnham Winchester Barnstaple Barnstaple Basingstoke Winchester Bath Bristol CJC Bodmin Bodmin Bournemouth Bournemouth Bristol Bristol CJC Cheltenham Bristol CJC Chippenham Winchester Exeter Exeter Gloucester Bristol CJC Newport (Isle of Wight) Winchester Plymouth Plymouth Portsmouth Portsmouth Salisbury Winchester Southampton Southampton Swindon Swindon Taunton Bristol CJC Torquay & Newton Abbot Torquay & Newton Abbot Trowbridge Trowbridge Truro Truro Weston-Super-Mare Bristol CJC Weymouth & Dorchester Winchester Winchester Winchester Yeovil Bristol South East Banbury Oxford Barnet Barnet Basildon Southend Bedford Luton Brentford Brentford Brighton Brighton Bromley Bromley Bury St Edmunds Cambridge Cambridge Cambridge Canterbury Canterbury Central London CJC Central London CJC Chelmsford Southend Chichester Chichester Clerkenwell & Shoreditch Clerkenwell & Shoreditch Colchester Southend Croydon Croydon Dartford Dartford Edmonton Edmonton Guildford Guildford Hastings Hastings Hertford Luton High Wycombe Oxford Horsham Horsham Hove Hove Ipswich Norwich Kingston-upon-Thames Kingston-upon-Thames Lewes Lewes Luton Luton Maidstone Maidstone Mayor's and City Mayor's and City Medway Medway Milton Keynes Oxford Norwich Norwich Oxford Oxford Peterborough Cambridge Reading Oxford Romford Romford Slough Oxford Southend Southend Staines Staines Stratford Central London CJC Thanet Thanet Uxbridge Uxbridge Wandsworth Wandsworth Watford Watford Willesden Willesden Woolwich Worthing Worthing
×
×
  • Create New...