Clarification re Statute Barred

[steven4064]

Percy

 

I would think that if the cause of action cannot be dated then there is no cause of action. THe signing of an agreemement is not a cause of action but the default on an agreement may be. So if you had an agreement to pay on the first of every month and the last time you paid was 01/01/00 then the date of the cause of action is 01/02/00.

 

If the loan company thinks the date of the cause of action is later than that, then it is up to them to demonstrate that you made a payment more recently. Then the date of the cause of action would be the first of the month after the last payment because that would be the date that the agreement was breached.

 

IMO these companies eliberatley try and muddy the waters on something which is quite simple. They do it to try and hoodwink people into paying what they don't have to. It is quite cynical - companies buy a whole load of statute barred debts, probably at about 1% of the 'face value'. If they can find a few mugs who don't know the law who then pay up, they are quids in. They do it to make money - the law just gets in their way:mad:

[Percival Wigglesbottom]

Yes , i realize the signing of the agreement does not determine the date of cause of action, but it provides a time limit within when it could have happened . If say they provide a cca you signed in jan 2004 then any cause of action would then have occured sometime after this date . It is the absence of such an agreement and therefore the absence of any time limit that defines when a cause of action could have occured that i am interested in.

 

Because in some cases, say somebody took out an agreement in jan 1995 and stopped paying the same year and recently paid an amount to the dca towards this debt, you could then say to them the recent payment does not change the fact that it is statute barred , but then there is an onus somewhere to prove that a 6 year period of no payment did exist . If nobody has your cca from 1995 then is that leaves an open ended date of when you could possibly have defaulted .

[Percival Wigglesbottom]

It is not just the cca aspect i am thinking of , it is the unknown parameter of date of cause of action , could this be used as a statute barred defence. Do you need to prove there is a 6 year period , or does the dca need to prove there is not one, in court ? Say they lost your cca and all other information, even if you took out the agreement in 2005 , can not a statute barred defence be used as there is no proof any 6 year period did not exist ?

[steven4064]

I think the court would only be interested in the date - if the claimaint (bank) cannot come up with a date for the cause of action then IMO there is no cause of action. If there is no cause of action then they have no case - their case would be dismissed as demonstrating no cause of action under CPR 3.4(2)(a)

(2) The court may strike out a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

[letitbeme]

Hi percy.

Is this a hypothetical situation or is it a real situation ?

Regards LIBM

[steven4064]

Is this a hypothetical situation or is it a real situation ?

that's a good question

[letitbeme]

Hi Steven, I think you hit it on the head with CPR 3.4(2)(a). IMHO

 

I think the court would only be interested in the date - if the claimaint (bank) cannot come up with a date for the cause of action then IMO there is no cause of action. If there is no cause of action then they have no case - their case would be dismissed as demonstrating no cause of action under CPR 3.4(2)(a)

 

Regard LIBM

[Percival Wigglesbottom]

It is hypothetical really, since nobody is chasing me for any debts. But I do have some old debts. If some dca came up to me and said you paid £5 in jan 2003 (which i didn't) , could i say it is still statute barred even thou neither of us could prove the cca signed and the last payment was in the ealy 90's. But in my case, it would be for a legitimate reason. I was thinking, considering data is (usually ) only held for 6 years.. say you have been paying some debt for the last 7 years , no doubt all the early info (preceeding the 6 years of info they have) would have been thrown away . What is to stop somebody claiming it is statute barred with the unknown parameter of no initial information as to when you first defaulted and if there is no evidence a 6 year period of no payment existed before the start of their records shows.

 

So, does it become statute barred after a proven period of 6 years, or can it also be statute barred by an inability to prove the 6 year period doesn't exist regardless of whether that period actually existed or not?

 

If it cannot be used, then how can someone in my position use the statute bar law , if it can be used.. what is to stop people using it once any old data has fallen off after 6 years ?

Edited June 23, 2008 by Percival Wigglesbottom

[steven4064]

Percy

 

I think you should stop worrying about it until it actually happens

 

(but like I said - no date for cause of action means no cause of action IMO)

[Percival Wigglesbottom]

And if proof of 6 years is required as opposed to disprooving the 6 years did not occur, then that is placing the burden of proof on the debtor, which is contrary to what we are told in that the dca must prove it is not statute barred .

 

Yes, I agree 'no date for cause of action means no cause of action ' overrides all of this , but the ability to invoke the statute of limitations is a useful weapon in the arsenal of any defence.

[steven4064]

the ability to invoke the statute of limitations is a useful weapon in the arsenal of any defence.

No arguments there

[letitbeme]

Hi Steven, I think Percy is trying to clarify a question that was posted in the following thread.

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/147385-burden-proof-dca-provide-3.html

Post 25 paragraph 7

[letitbeme]

Hello Percy,

To use the Statute of Limitations Act there has to be a case of action (breach of contract, no payment date), this date is the start of time frame, 01-01-2000 to 01-01-2006, any court action after this time frame is “ statue barred”. If what you’re saying is that the account information is older than 6 years and is therefore not available for reference purposes and therefore the account information that is not available for reference purposes conceals a none payment date that you are going to reference as the cause of action for stat barred.

Regards LIBM

[steven4064]

They would still have to prove you had made a payment by producing the relevant statement.

[letitbeme]

Yes , i realize the signing of the agreement does not determine the date of cause of action, but it provides a time limit within when it could have happened . If say they provide a cca you signed in jan 2004 then any cause of action would then have occured sometime after this date . It is the absence of such an agreement and therefore the absence of any time limit that defines when a cause of action could have occured that i am interested in.

 

Because in some cases, say somebody took out an agreement in jan 1995 and stopped paying the same year and recently paid an amount to the dca towards this debt, you could then say to them the recent payment does not change the fact that it is statute barred , but then there is an onus somewhere to prove that a 6 year period of no payment did exist . If nobody has your cca from 1995 then is that leaves an open ended date of when you could possibly have defaulted .

 

The recent payment would start a new time frame

[letitbeme]

I know what your saying Steven. But are they allowed to use data held that is older than the 6 year data protection act?

[Percival Wigglesbottom]

No, it wouldn't . Once it is statute barred it always remains so . It doesn't matter if you have been paying religiously for the past 10 years , it still doesn't prove it isnt statute barred . No repayment after a 6 year period of non payment/acknowledgment starts a new time frame. If you are saying it is starting a new time frame because it is within a 6 year period, then it comes back to knowing when that 6 year period began . The issue here is the situation when they do not have that information, therefore they cannot say it is within the 6 years of another payment.

[letitbeme]

I have heard that the account data is still accessible after 6 years, but I’m not sure about the data protection act and if they are aloud to reproduce it after 6 years?

[Percival Wigglesbottom]

I am really asking whether the limitations act needs concrete proof of a period of 6 year of non-payment/acknowledgement , or is it a pseudo 6 years , a period you can claim existed , regardless if it did or did not , that the creditor/dca needs to counter with credible evidence to the contrary .

 

The advice really thou, seems to be .. for very old debts.. not to go with the statute of limitations , but no date of cause of action = no cause of action , i will use that ( should they ever start to chase me ) , but i was interested in the various scenarios of the law , how the route i would have taken could have also been used for older debts with information that had fallen off after 6 years . Sorry to have taken up so much time on your thread letitbeme , good luck with your case ). Thank you PT2357 for the advice ).

Edited June 24, 2008 by Percival Wigglesbottom

[Percival Wigglesbottom]

One last point .. that is a great letter letitbeme .. but is it too good ? , maybe it is to your advantage to let them take you to court over this debt .

[letitbeme]

Hi Percy, thanks for the comments, as to the letter and whether I should let them take me to court. Well, after considering all of my options and the judge’s decision in requesting that the case be stayed to allow the court mediation services to assist in bringing this case to a settlement. I decided to follow the Judges wishes, so that I could show that I am being accommodating to the wishes of the Judge. There is one thing you should not do when progressing a defence and a counter claim through the courts “ don’t get on the wrong side of the Judge “. If this case progresses to court the Judge will see that I have attempted to save on the courts time and when I request a cost order the Judge should look favourably in his decision. In reference to the DCA “ You can lead a horse to water but you can’t make him drink it” and “ Some people learn from other peoples mistakes and some are destined to learn from there own”. I fear that Link is the later in both instances. I have laid my table out and have allowed the claimant a tantalizing glimpse of the tasty morsels of my defence (the hard facts and correlated information for this defence have been furnished by Pete, Steven, Tiglet, Sequenci and all that have contributed to this forum) and so, if the claimant wishes to gorge themselves on a healthy defence of particularized Law, then let the festival begin. This is one litigant in person that is not going to pick up his ball and run away when the going gets tough, although I do have a rock for the claimant to crawl under.

[steven4064]

I think your case may well be struck out on account of using mixed metaphores

[tiglet]

Lol

[letitbeme]

I have today received 2 letters from Link, the first one was in regards to the mediation order, and the second was an application for a reduced payment plan with a current balance of £6974.55 which is £200 more than the POC balance.

I have scanned the letters and included them below.

http://i292.photobucket.com/albums/mm30/corcoj/linklet1.jpg

http://i292.photobucket.com/albums/mm30/corcoj/linklet2.jpg

 

I think Link still has an inkling to carry on playing, they must have more money than sense.

Do you think I should send the letters to the court mediation service ?

Are they aloud to increase the debt?

[steven4064]

I think you should send them with a covering letter pointing out the increased balance