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

[rudy1]

many thanks joncris and bradz for your input, don't know what to do until friday, spoke with a neighbour who said they could come up with the documents next week and the court would let it go through, never ending, am going to write a full on letter to the judge pleading that this goes away finally if documents don't arrive in tomorrows post.

[joeblogs]

Good luck with this Rudy. I only found this thread on Sunday and read it with interest. I am keeping everything crossed for you that the Judge strikes this out or whatever he has to do to dismiss it. I would write a letter and take it personally to the court and mark it 'urgent'. I am with you all the way and good luck.

[bradz1711]

I agree with joebloggs. With all that you are going through it can't do any harm and hopefully will do good. You are fighting against a machine that relies on peoples ignorance of the law and their fear and intimidation caused by threatening letters and court action. After reading threads in this forum it becomes clearer and clearer how these companies work and the lengths that they will go to to recover debts that are statute barred.

 

I was told yesterday that just a letter from them stating that i had made a payment in the year that they claim i did could be classed as proof (witness statement). If that is the case then where is the justice in that. Maybe I should file my own (witness statement) claiming that i was in a coma for the full duration of that year and it is up to them to prove otherwise. Good luck with it and I also have my fingers crossed for you:)

[rudy1]

thank you, will definately take a letter down to the court of thursday, as my dad said today, they were given 28 days, 28 days is 28 days no longer no shorter and if nothing is in the post tomorrow there should be some kind of end to it. They could come up with something next year or ten years, there has to be an end.

 

Bradz surely the payment is your word against there, they have to prove it not you, its teeth pulling isn't it you feel like banging your head against a wall don't you, haven't thought of the coma idea, maybe be a good one:D

[bradz1711]

Yes rudy they have to prove that the payment was made, my worry has always been exactly what is ligitimate proof and what is not. I know I didnt pay anything to anyone except leccy, gas, phone, ect in the year they claim i did. I am fortunate enough to be able to pay the debt if it isn't statute barred ( would mean selling my beloved work van and buying a cheaper one) but why should I do that when the debt is statute barred. I think the judge has decided it's my debt and am relying on the limitation act and it is costing me more money (more money for them). I didn't write the limitation act but someone did and they wrote it for a reason, I reckon it needs tightening up because these DCA are just taking the P**S out of it and making more money from charges on their wins to fuel other peoples misery. Hope the letter is going well.

[rudy1]

Hi bradz, am back to normal today, had a great night sleep,

 

just read your threads,

i think you have nothing to worry about although i know very much easier said than done,

we both know they are and they will not be able to prove you made a payment because you didn't make a payment,

 

you are a bit like me with the court in reflection

we should of both brought a solicitor and yours especially would of been thrown out.

 

If for some weird reason this goes further i would invest in one just to blast it away as it were.

I two am in the position to that if things went bad i would be able to get the money together some how but £7k is a huge amount, don't think about getting rid off the work van yet,

 

my husband loves his van more than me i think so i can imagine what a sacrifice this would be.

It is so clearly statue barred,

makes me wonder about these judges sometimes,

its their personnel view,

how they got out of bed that morning etc.

 

I mean sounds a bit desperate on the DCA's part,

"he made a payment back in 2002"

you'll be fine i'm sure but again easier said than done,

we both need to secure if they don't produce that this can't happen again

, it's my second biggest fear in relation to this,

that this could go on and on going out to different agents.

 

Its day 28 for me, wait and see whats in the post either way get on it.

 

Have a good day, sun seems to be shining for a moment here.

[bradz1711]

Glad you are feeling better today rudy. Nothing in my post today from them or the court, I dont expect anything until at least next week (they would be helping me by giving me more time if they send it early), would be nice to know something though. I only plan to sell my van as a last resort, there is no debt attached to it so wouldnt be a problem (except emotionally). Surely once the statute barred judgement has been made then it should be the end of it, although I can imagine some other DCA trying their hand at recovering it. If that was the case then you would have the ammo to defend yourself from the very first letter that you recieved. Which ever way it goes for me with all this We have decided that this country is just not a nice place to live anymore, get the charging order removed off our house (they kindly put it on before any judgement had been made regarding settin original one aside) sell up and move abroad.

[rudy1]

You know, we've been feeling that way for a couple of years, I dislike so much about this country now, where do you go? its finished here most certainly, not too bad where we are but only a matter of time. How didn't you know they had a charging order, getting a bit worried, could they of done this to me?

[bradz1711]

Hi rudy you are right to feel that way about a country that is basically going down the pan (that's another conversation). I first found out about the charging order at the end of july, they sent a letter saying please find enlosed by way of service order which is returnable in the ******* County Court on the 27/08/2008.We are currently making an application to register at the Land Registry accordingly. They did what they said and I contacted land registry, was old that they can't take the house but if we do sell it then they can have the money owed out of what we make. Don't worry me that much because. It seems quite coincidental that they applied for the charging order after they knew i requested setting judgement aside and they claim it was on the same day and at the same time.

 

1. if they win in court then i sell van and pay, removes charging order.

2. if debt statute barred then order removed.

 

It hurt because my wife bought this house 16 years ago, worked hard to do so and then married me and we took out joint mortgage so none of this is her fault ( she's a beautiful person and excellant wife and is 100% behind me with this). Dont worry, anything in the post? Feel free to pm me if ya would like to. am phoning court now to find out why.the creditor sent me a letter saying i was there for a charging order when i have proof that it was for a set aside judgement. Oh and if you use messenger or the like i will chat on there. Hope it;s o.k to offer support using msn or other messenger stuff.

Edited August 14, 2008 by bradz1711
explanation

[rudy1]

whoops bbq with my sister up at carn marth where i walk the dogs each day, amazing place, her mates came up and surprise, surprise ended up getting a bit tiddly, so will have a good read in the morning. spoke with court, probably set me off (would usually never drink in the day but annoyed.....its their fault:D Will tell all in the morning. night night....nothing exciting by the way..

[rudy1]

hi everyone back from my weekend in devon, lovely, back to reality, received an N244 to apply for it to be thrown out, haven't a clue has to fill in, is there a link on here on how to do it. What am i asking for? any help much appreciated.

[bradz1711]

Just got home from wandering about here n there. no post except more offers of unbelievably BIG apr loans, so that gives me 4 days left. Reckon I will get same form as you rudy if I phone court on thursday (assuming nothing arrives by then).

[rudy1]

Hi bradz, was just going to PM you, but will say hello here and maybe do in the morning,

 

nothing exciting in the post apart from that,

those loan letter really annoy me, got one the other day offering me £16k all i had to do was sign my name to it,

 

you people agree to loans for all sorts of reasons depression, desparation etc makes me so angry.

 

stayed at the inlaws got a lovely cottage in the country thatched, Orchards, horses, scream the lots, love staying there. Think more so since all this, i remember ging there for a weekend when this was at its worse and i felt for 48 hors that it had gone away, at that point, couldn't sleep, eat, felt sick all the time and i think of it like a little havern. nice and their nice. Any way think i'll be off to bed now as the baby is seriously naughty at night. take care.

 

Whoops didn't mean you people, very tired. Meant people.

 

IN general, think i should give up and go up:rolleyes:

[letitbeme]

Hi, Rudy and Bradz1711, Its £75 to submit a N244, If you want help with a request for the case to be truck out just PM me the details and I'll see what I can do. I am of to court on Thursday 21st 3.15

for a hearing regarding my N244 ordering the claimant supply the documents that they are relying on in support of there claim.

[rudy1]

Thats tomorrow letitbeme, FINGERS CROSSED, will you write on here asap after as i'm going away on the friday, I really really will be thinking of you at 3.15. OMG it hopefully will be a distant memory from tomorrow but lets not temp fate, really am rooting for you, i know how stressful it all is.

[rudy1]

Hi all, went on a mission to fill N244 (thanks for your offer letitbeme but you have a lot on your plate at the moment so thought i would see if i could do it on my own) Got a chap at CAB to help complete then phone Celia at the court, she must just silently grown when she realises it me again asking a mountain of questions. Anyway my mate celia said "save yourself a bit of money and just write to the judge and ask he to strike out as no info, court still haven't heard from them either. So alls good. Anything in the post Bradz?

[rudy1]

Hi all, off this morning for ten days, doubt i'll get to use a computer, so i'll speak to you in a week and a half. take care

[rudy1]

I'M BACK....

..so tired had a great time but returned to a letter from LINK enclosing an

"unsealed amended particular of claim"

 

. Don't understand it at all so will get a friend to scan it on here tomorrow, no documents enclosed. dated 18th August 2008 but post mark 28th.

 

Too tired to put all details on here but will do tomorrow.

 

Could scream just want an end to this. I bid you good night,

 

I've missed you all, been missing the site,

 

glad to you there's been action on my thread while i was away...Night night.

 

PS heard anything bradz?

[blue4ever]

rudy1 hear from you soon b4e

[bradz1711]

WB Rudy, hope you had a great time:) post details for us tomorrow. I still aint heard anything from them, but had letter from court on the 23rd (day after i handed letter in to court explaining that they had failed to send proof of payment within the 14 days as ordered) telling me what had happened in court on the 7th August. Got solicitor to write to DCA so still waiting, keeping fingers crossed cos solicitor reckons it could be complicated but lets just wait n see what they come back with.

[rudy1]

Hi everyone spoke with my friend will go over to her's later on to scan this stuff,

Really need some help in putting a letter together for the court, saying still no documents,

 

on the amended claim they say they sent me a deed of assignment on 22nd oct 2007 ,

but i have a letter (dated 020407) saying it was assigned 16th october 2002.

Don't really understand what this is!

 

Hi just rang the court,

the girl there said the judge has ordered an "unless" order,

Joncris advised me some time ago to ask for one.

 

It goes out tomorrow and they have 7 days to get the documents to me then it is thrown out.

 

Still going to get these new particulars of claim scanned on here today as want to write to the judge,

 

the lady said they can apply to have the claim reinstated if the judge throws it out,

 

its his decision not to let them so i want to do a really good letter.

 

Does anyone know how likely it is that its reinstated? Thank you.

[pt2537]

Hi Rudy,

 

Im not sure on JCs opinion here, but i would make a formal application to the court upon their noncompliance to have their claim struck out and summary judgment entered for the defendant

 

that is what i would do

 

Opinions please???

[rudy1]

thanks pt2537, so tired tonight, going to pick your brains further tomorrow when i hopefully get these documents scanned on here for your and others very valued opinions. Is there a certain form I should ask for? The lady said it will be automatically struck out at 4pm next wednesday if documents aren't received, what i'm worried about is them applying for it to be reinstated, she said they can request that. Just want an absolute end one way or another. How likely do you think the reinstatment is? Will the judge let them....thank you..Back on tomorrow....good night and thank you

[letitbeme]

Hi Rudy, Some info that you can use re your case. The blue text is relevent in support of your N244 aplication re statute bared.

 

The following information and legal arguments are fully particulated within my defence.

 

LIMITATION ACT 1980

 

 

Actions founded on simple contract

 

5 Time limit for actions founded on simple contract

 

An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.

 

I quote from your letter dated 4th June 2008 “In so far as your claim that the account is statute barred we refute the allegation. The cause of action arose on 20.08.01 when the account went into default and we issued our proceedings on 19.03.07 which is within the 6 year time limit as set out in the Limitation Act 1981”.

 

In your explanation as to the starting point for cause of action, I note that your starting point for the time frame of the Limitations Act is the issue of the Default Notice by MBNA on the 20th August 2001. May I draw your attention to the following Case Law 1 and Case Law 2: -

 

Case Law 1

 

 

ICLR: King's/Queen's Bench Division/1891/Volume 2/REEVES v. BUTCHER. - [1891] 2 Q.B. 509

 

The following is a quote from page 1.

 

[COURT OF APPEAL]

REEVES v. BUTCHER.

1891 July 10.

 

LINDLEY, FRY and LOPES, L.JJ.

 

Limitations, Statute of (21 Jac. 1, c. 16, s. 3) - Cause of Action.

 

The plaintiff lent money to the defendant under a written agreement, which recited an agreement for a loan for five years, "subject to the power to call in the same at an earlier period in the events hereinafter mentioned." The defendant agreed to pay interest quarterly, and the plaintiff agreed not to call in the money for five years if the defendant should regularly pay the interest. And it was provided that if the defendant should make default in payment of any quarterly payment of interest for twenty-one days the plaintiff might call in the principal. No interest was ever paid. The plaintiff commenced his action to recover the principal and interest within six years from the end of the term of five years: -

 

Held (affirming the decision of Day and Lawrance, JJ.), that the statute of Limitations was a good defense, for that the time began to run from the earliest time at which the plaintiff could have brought her action - i.e., twenty-one days after the first installment of interest be came due.

 

Case Law 2

 

 

All England Law Reports/1992/Volume 2 /Swansea City Council v Glass. - [1992] 2 All ER 680

[1992] 2 All ER 680

 

The following is a quote from page 1.

 

Swansea City Council v Glass.

 

COURT OF APPEAL, CIVIL DIVISION

PURCHAS, RALPH GIBSON AND TAYLOR LJJ

20 NOVEMBER, 11 DECEMBER 1991

 

Limitation of action - Accrual of cause of action - Action to recover sums recoverable by virtue of statute - Recovery of expenses incurred by local authority in carrying out works under housing legislation - Council carrying out repairs to house in defendant's control - Council seeking recovery of expenses incurred by it in carrying out repairs – Summons for recovery of expenses issued more than six years after completion of works but less than six years from service of demand for payment - Whether cause of action accruing when works completed or when demand for payment served on defendant - Whether action time-barred - Housing Act 1957, s 10(3) - Limitation Act 1980, s 9.

 

The respondent failed to comply with two notices served on him under the Housing Act 1957 by the appellant council requiring him to carry out repairs to a house in his control and the council carried out the necessary works itself. The repairs required by the first notice were completed on 7 September 1983 and those required by the second notice in March or April 1984. On 31 May 1984 and 25 April 1985 the council served on the respondent written demands for the expenses incurred pursuant to s 10(3)a of the 1957 Act. The respondent failed to pay and on 30 May 1990, which was more than six years after completion of the works but less than six years from the service of the demands, the council issued a summons seeking payment of both amounts. On the trial of a preliminary issue as to when the council's cause of action accrued the judge held that the council's cause of action accrued when the work required by the notices had been completed and that accordingly the action was statute-barred by virtue of s 9b of the Limitation Act 1980. The council appealed, contending that the cause of action to recover the expenses incurred by it accrued when the demands for payment were served or when they became operative. a Section 10, so far as material, is set out at p 682 c, post b Section 9, so far as material, is set out at p 682 d, post

 

Held - The council's cause of action to recover the expenses incurred by it accrued when the works were completed and not when the demands for payment were served since on the true construction of s 10 of the 1957 Act the requirement to serve a demand was a procedural condition precedent to the bringing of proceedings and was not an inherent element in the cause of the action. It followed that the council's cause of action arose in September 1983 and March or April 1984 and was statute-barred when the summons seeking payment was issued. The appeal would therefore be dismissed.

 

I have underlined the relevant points in Case1 and Case 2 and draw your attention to them.

 

As you can see, there are legal arguments in support of my defense of statute bared and the causes of action as lade down by Case 1 and Case 2. I have for your benefit included a copy of the both cases attached to this letter.

 

May I also point out that 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 “

 

“If the claimant issues a default notice 6 or 10 months after the breach of contract, then that is there prerogative. It will not deter from the fact that the earliest time that they could issue legal proceedings would be the date of the breach of contract + 14 days for a Default Notice if issued after 2006 or 7 days if issued before.”

 

The following paragraph is a quote taken from my skeleton witness statement. “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 20th August 2001 and the date on which the claimant issued proceedings 19th March 2007, 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 2000, and thus the limitation period had expired six years later in Oct 2006. Accordingly the proceedings issued in Mar 2007 had been commenced 5 months outside of the limitation period ”.

 

The following case Law are all relevant in supporting the cause of action rueling in the above mentioned (REEVES v. BUTCHER.) case Law and will be used in support of my defense: -

 

Coburn V Colledge [1897] 1 QB 702

Swansea City Council V Glass [1992] 2 All ER 680, CA

Royal Borough of Kensington and Chelsea V Khan [2002] EWCA Civ 279

 

Let me also quote para 35 from the Royal Borough of Kensington and Chelsea V Khan .

 

Lindley L.J. put the matter powerfully thus at page 9: “Who ever heard, with reference to any Statute of Limitations, that a creditor could enlarge the time for suing indefinitely by omitting to do that which it is his duty by statute or common law to do? It appears to me that we ought not to adopt a construction of the statute that leads to such a result, unless we are driven to it.”

 

There are other issues that I would like to address, so I will take this opportunity to draw your attention to them, I have never received a Default Notice from MBNA, and a mere suggestion that MBNA sent a notice does not prove that the default notice was sent nor do you show that such notice was in the prescribed format, and it appears that MBNA are unable to provide any substantive proof that such a document was sent in the required form and giving the prescribed timescale to remedy any default or that the notice was compliant with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations in the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

I have never received a Notice of Assignment from MBNA and despite your reply to my original defence 20th April 2008, you have still failed to provide any proof of service of the Notice of Assignment from MBNA as required by section 196 Law of Property Act 1925. It is a procedural requirement of the Law of Property Act 1925 to serve a Notice of Assignment via registered post and until such time that good service is effected the assignment is not valid. Furthermore because the assignment is invalid you do not have the legal right to instigate legal proceedings through the courts. So, this is a complete defence against your claim.

 

136 Legal assignments of things in action

(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice.

 

(2) The important thing in the bit above is "of which express notice in writing has been given to the debtor" because section 196 says that any notice must be personally delivered or sent by recorded delivery to be effective:-

 

(3) Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine.

 

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned through the post-office undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

By the Recorded Delivery Service Act 1962 a letter sent by recorded delivery is equivalent to a registered letter.

 

Rudy if you PM me the relevent dates supporting your side of statute bared and the dates Link are using, will formulate your strike out argument for you.

[rudy1]

Gosh your good letit, will pm later when i get a minute, many thanks....