Link/MBNA Claimform - Card Debt Poss statute barred **Struck Out**

[rudy1]

Thought if they don't have the documents they have a case, when are you next in court? How can they prove then that you owe the debt! I reckon the statue barred law is a joke, doesn't seem that there are clear guide lines really, you are argue it on both sides! its so stupid.....

[Goldlady]

Hi rudy, I think it went OK really from what you have said. I think the judge was saying that to argue the statute barred thing when there is some doubt about the date would be a bad idea, whereas if they can't come up with the agreement that is a much easier way to defend. Sounds as if he was pretty clued up about the CCA. If Link have not managed to send you an agreement yet it seems unlikely that they will suddenly find one. I do think you will be OK. As you have no doubt read on here there are differences of opinion about when the statute bar comes into effect, if creditors take a long time to issue a default notice etc etc.

 

You have done your best. Imagine what would have happened if you hadn't turned up.

[letitbeme]

Hi Rudy, have been reading a couple of posts by a new guy on the block “Aloysius” he is quite enlightening regarding litigation procedures. Suggest you PM him and outline your situation and a link to your thread. He comes across as well clued up.

[rudy1]

hi thank goldlady, think your right, if i didn't turn up could the judge just say that i have to pay, feel a bit bad using the operation thing but sod it, i'm losing a kidney may as well get something out of it!

 

That list of your is very impressive, i'm knackered. still working.

...be at my machine for a couple of hours yet.

Easier than when the kids are up though

 

cool thanks letit, will do, i'll have a look at what he's got to say, thanks.

 

can't find him,

went to the top and put a search on aloysius?

you know me by now,

bit of a thickie when it come to this,

 

n't mind pt2537's opion and jonchris, haven't heard from him in ages....

 

i given up think i need to go night night, my little man still waking through the night.

I thank you lots so mch for all your support,

[letitbeme]

Sorry, his name is "aloysiush". the link will take you to his profile.

have a look at his posts

 

http://www.consumeractiongroup.co.uk/forum/member.php?u=207001

[Goldlady]

aloysiush is the person I think you are looking for. The user called aloysius appears never to have made any posts.

[letitbeme]

Sorry Rudy, missed this post. will help with your situation when we know what the DCA reveals.

 

Thought if they don't have the documents they have a case, when are you next in court? How can they prove then that you owe the debt! I reckon the statue barred law is a joke, doesn't seem that there are clear guide lines really, you are argue it on both sides! its so stupid.....

[9Lives]

Well done Rudy, standing up to these companys takes a lot of guts.

 

It was my first time in a court situation when I defended against Link, going up against somone that you know is way more experienced is so nerve racking and the waiting around before is the worsed time.

 

I agree with goldlady, they have had long enough to provide a cca, and I don't think you wll be going back into court again.

[JonCris]

Contrary to the judges comments it's not complicated. If you know the date & it's over 6 years it's time barred .................. period & end of

[Zak99]

What amazes me is that the courts waste their time hearing cases that they dont need to.

 

Surely with debt cases the first question they should ask before it comes to court is when the debt relates to?

 

If the DCA or creditor doesnt know, it should never be allowed to get close to court.

 

I am amazed Link turned up.

 

I think you have them on the run Rudy.

 

If they had any documentation, they would definately have taken it with them.

 

Even their solicitor thought they were planks.

 

!0/10 for having the bottle to face them.

 

I think you will hear no more.

 

I just noted the comment from JonChris. I agree comppletely with you, but whilst you may well know the date of last contact/payment, how do you prove it?

 

All the best.

[aloysiush]

Have read the thread.

 

The claim, if your last payment date is correct, is statute barred. A matter is barred if no payment or acknowledgement made in the last six years. They cannot extend the limitation period by writing letters, regardless of content.

 

Your matter has been stayed and they have been allowed 28 days to produce the docs they should have produced upon disclosure. As usual the DCA's use mediocre legal personnel.

 

The judge should have made an 'unless' order. In other words if they do not produce, the matter is automatically struck out. Regardless, wait the 28 days and then make application on N.244 to strike out for failure to comply with the order. However, check the actual order when it arrives as it may be an unless order as indicated above.

 

To be fair, if you had a solicitor today the matter would have been struck out or at least adjourned with a nice order of costs against them. There are lots of solicitors out there who will take these cases on a no win no fee basis, but you will have to look around to get the right one, as this is a nuanced area of the law. You will probably not need one now, as yours looks like a winner. Fingers crossed and good luck.

[rudy1]

Thanks for all your comments,

interesting about the statue barred things,

it was like he was saying i had 2 avenues to go down,

one the SB, which he was saying would be hard to prove and complicated or lack of document way forward,

 

he seemed to strongly advise lack of doc route,

saying "i don't think you want to go down SB route do you",

if they produce documents i will get solicitor,

the one who helped with the allocation questionaire, got on well with him,

(had hoped i'd be dropping he in nice a bottle of something this week as way of thank you)

 

he wanted £500 up front which i tried to avoid.

I think they seemed (the judge and the solicitor ) to be pretty nice to me,

the solicitor was very passive,

i was more forthright than him, and the judge, said in a emphatic way

" i can't really do anymore more for you"

after my "for god sake i can't do this anymore" almost burst in to tears but didn't,

 

genuinely feeling desperate at that point when he gave them another 28 days, feels never ending.

But he obviously could do more!

 

Oh and after i thought did i make a mistake on entering,

we walked in and the solicitor said good morning your honour and i just morning without your honour on the end as felt a bit silly, are you suppose to call him your honour.

 

The statue barred bit i did argue saying the law states last payment or admittance,

he wouldn't have it at all,

saying the DCA say oct 02 thats when the default was registered that was when you defaulted,

which i said was irrelivant as surely a oc/dca could register at any point and buy time,

 

he then said thats when the next payment was due,

when the course of action accursed,

to that i said, make is nearly a year after i ever had any credits cards as i cleared everything beginning of jan 02

(or not as the case maybe)

 

Is this a card which has anything to do with me!

True, if DCA want to play that one.

 

On reflection, would of definately just got solicitor to came,

don't think i should of talked quite as much as i did,

i say talk,

think it may of came across as a desperate ramble,

 

oh and i kept putting my hand up,

regressing to the classroom situation,

sitting here grinning,

with a clearer,

calmer memory of my experience,

 

they must i thought

"we've got legally blonde II here" Bugger it.

 

can't do anything now

 

. Thank you everyone.

[aloysiush]

Stick with it. I do not believe they will produce the goods!!

[Goldlady]

Agree entirely aloysiush.

[rudy1]

Cheers, off to work. make some money, hopefully,

usually one of my biggest earners of the year and very enjoyable day.

 

Haven't produced quite as much as i would of like to to in the run up, last year almost sold out by lunch time.

 

I earn nearly all my money in summer and have to see it through the winter.

I am as i say each year going to really work through the winter producing this year.

hard when you work from home with kids.

 

Goldlady knows the trials of self employment> take care thank you will keep you all updated on everything.

 

Goodish day yesterday started 7.30 home 8.30, done better, but hot, hot, hot. Not a cloud in the sky today, "going down beach for the day" Hope you all enjoy this lovely weather.

[Percival Wigglesbottom]

I don't get this either or approach this judge is putting to you regarding going down the documents road instead of statute barred when you entitled to use both defences . It is an and situation, nor an or. I wouldn't let the statute barred aspect drop just because the judge says it's complicated , sounds to me like he is the only one that is confused about it .

[make them aktiv runners]

I would let the statute barred drop as the judge seems to be trying to help by giving the first stage of proving a debts existence. For the statute barred, yes it is over 6 years between last payment and court application, however, the difference is very short, ie months not years and S32 of the Limitation Act could go against Rudy on that basis alone.

[rudy1]

Hi make them aktiv runners, haven't seen you round these parts in ages, hope your well, thanks for your thought, i think your right, just want all this over now, seems to of been going on for a lifetime now. If they produce the goods will definately get a solicitor this time. take care

[rudy1]

Hi everyone got the Order through, but they made a mistake on it..

 

1 my name be ammended, (married now)

2 By consent claim is allocated to small claims track

3 THE CLAIMENT SHALL BY 14TH MARCH 2008 FILE SERVE FULLY DETAILED PARTICULARS OF CLAIM ATTACHING COPIES OF THE AGREEMENT AND A STATEMENT OF THE ACCOUNT AND NOTICE OF ASSIGNMENT.

4 The defendant may by 28th August 2008 file and serve ammended defence

5 Otherwise the claim is stayed until 11 september 2008

6 Costs in the case

 

14th march 2008, meant to be August when i phoned court they said they will ammend and resend, don't suppose i can use this as a loophole if worse comes to worse and they come up with docs......

 

Comments welcome, hope your al well, camping at the weekend and it don't look good, so probably be sitting in the van all weekend with screaming kids:D

[rudy1]

14 days down, 14 days to go, now I thinking what happens if they don't come up with the goods and i apply to get it thrown out, if link return the account, would MBNA then send it to another agent? Could it all start again? Not that I'm Worrying about something which hasn't happened yet!

[rudy1]

9 days to go, single figure now. nothing yet surprised link haven't been on my case hope i'm not speaking to soon, will keep you updated. hope your all well.

[JonCris]

I would let the statute barred drop as the judge seems to be trying to help by giving the first stage of proving a debts existence. For the statute barred, yes it is over 6 years between last payment and court application, however, the difference is very short, ie months not years and S32 of the Limitation Act could go against Rudy on that basis alone.

 

6 years statute barred is just that 6 years to the day no more no less They could only claim relief through lack of knowledge (no known debt to collect) which is hardly likely.

 

For the judge to find otherwise would not only be wrong in law but also highly prejudicial to the defendant in that any evidence to support the defence may well be long gone (consider naches defence). Any other finding would be immediate grounds for appeal as even CC Judges can only go so far no matter what some might think

 

In fact if this matter is time barred the Judge should make a wasted costs order against the claimant for trying to abuse the process in bringing a matter before the court in the hope that the litigant in person doesn't have the knowledge to defeat their claim

[rudy1]

I don't know what to think about it all just hope they don't come up with the goods, am now worried that if they don't and it gets thrown out that it will be passed to another agent and it could all start again!

[Goldlady]

Hi, still here by the way. If they pass it on after the court case has failed then you just ignore them - we did. Not going to tempt fate but have everything crossed for you:D

[make them aktiv runners]

last payment jan15th 02

next payment due feb15th 02

i have spoken to them once 4th feb and written to them 15th feb.

Letter states the default date was september 2002

28 February 2008, Got summons in post today

I was taken ill in 2001, my parents wanted me home so i sold up, moved closer in jan 2002, i know i have not made a payment since, at the latest last payment 23/01/2002 when i was living at my last address. I think its more like 15/01/2002. Am trying to get the actual date from a friend with credit file connects, don't want to link my addresses.

The above are the relevant facts posted by Rudy1.

JonCris I assume you did not follow Sequenci’s lesson on letitbeme’s thread? In Rudy1’s case the cause of action initially is 15 January 2002 resulting in a right of action on 16 February 2002. The creditor should begin their right of action on 16 February 2002 and follow the contractual procedures through until they are able to move into court action, ie after default served. Initially, irrespective of the default date the claim must be made within 6 years of cause of action, ie by 14 January 2008 at the latest.

In Rudy’s case the difference between what is initially the cause of action, ie 15 January 2008 and the actual court submission date, ie before 28 February 2008 is probably less than 5 weeks outside the normal 6 year limitation period.

Section 32 which as been widely discussed in the House of Lords, allows for both the cause and right of action dates to be extended where some relevant factor has been with-held from the creditor. Their general concept is that some relevant factor has to be concealed with the deliberate intention of delaying the creditor’s right of action. The facts above show that the first missed payment was after moving address. In my personal opinion, there is a good case to change the right of action as the address move and sudden non-payment can be deemed as deliberate, irrespective of whether it actually was. To change the right of action to the date that the creditor could first begin their contractual proceedings to the date that they could reasonably be aware of the new address is likely to fall within more than the 5 week gap. If the right of action is changed, then the cause of action is also changed accordingly, meaning in my opinion that it would be less than 6 years.

As for the naches defence, the subtle differences in the time limits are pretty much irrespective here.

I too wish Rudy well, however, I do believe the CCA argument is much stronger, whereas this argument is rather risky and I would rather she knew those risks before adding legal expenses.