Clarification re Statute Barred

[letitbeme]

Have just finished letter to mediation service , will inclued a paragraph about the increased balance. Thanks Steven.

 

Regards LIBM

[letitbeme]

Hi Steven, Do you have any case Law referencing Notice of Assignment and the no serving of, or no production of + no proof of posting in court re a full defence against the claim. I hope you under stand what I’m saying.

Regards LIBM

[steven4064]

No Send a PM to pt2537 - he may have

[I've got no money]

In my humble view the action is statute barred - the defence needs to expressly plead it - evidence more than 6 years old is admissible - if they've got it...but of course it has to be disclosed

 

In terms of what's happening - from what I can gather the claim is under £5k so will be automatically allocated - unless you argue that its' not suitable for the SCT - to the SCT. Is a defence involving limitation appropriate for the SCT - I'd say not but that's my view., I'd also say that you need the benefit of CPR 31 - which only applies to Fast track and Multi track.

 

Disclosure - as part of the directions you need to specifically get a direction that the Original Assignment, the Original Agreement and the notices be disclosed - the draft directions seem a bit strange in that they use the word OR. Its not a case of OR you want everything.

 

You also want an Order that the claimant produce at court the originals of all documents referred to in the claim form and any witness statements - if they can't produce them then they have a bit of a problem.

 

Once you get your AQ Order with the directions you then go about enforcing them

 

REMEMBER the first rule of litigation is to avoid a trial - you have to use the rules to avoid getting to trial - because trials are stressful, time consuming, Uncertain in outcome and potentially expensive - so you should always aim to cut the litigation short - by efficient and effective use of the rules...

[I've got no money]

To respond to your PM:-

Assuming that you get an Order for disclosure or in fact anything requiring the claimant to do anything really.If the claimant does not comply by the date specified there are several stages to follow:-

1. You write a chasing letter giving them 7 days to comply.

2. You apply to the Court for an Order, on an N244, that unless they do comply within 7 days or that the claim is struck out (an Unless Order) and that you get costs.

3. Sometimes the Court won't make an unless Order on the first occasion - so you may just get another Order that they do it.

4. If the Order wasn't an unless order and they don't comply - another 7 day chasing letter

5. If no compliance another N244 asking for an Unless Order and costs. This time you should get an Order that unless they comply with the first order within 7 days that the claim be struck out

6. Non compliance -Claim struck out - no trial - you win

 

Throughout this process there are often things you should do, such as file a witness statement - however until you get disclosure you should NEVER file a witness statement - no Court will order you to. What you have to do is tell the other side that until they give you disclosure that you are not able to finalise a witness statement. In the N244's you should tell the court that you haven't been able to because you haven't had disclosure from the claimant. In fact you need to ask the Court to Order that you file your witness statement 21 days after the claimant has complied with the Order.

 

That way the case only gets to trial if it absolutely has to and if you are ready for trial.

 

The issue of whether or not they can use material that has not been disclosed should not occur because you should have had the disclosure well in advance of trial

[letitbeme]

Hi IGNM, Thank you for your clarity of thought and advice.

[letitbeme]

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Edited July 13, 2008 by letitbeme

[I've got no money]

I don't like hypotheticals - because you never get the full story - can I calrify a couple of points before I answer the question - The Account Holder did s/he apply for the card in the first place. If so did they ever get any correspondence from the C/Card Company at all. If so did they tell the CC that the card wasn't received.

[I've got no money]

The question also sounds a bit like one of those questions law students get set in consumer tutorials...

[I've got no money]

One other point if the account holder lives at X and the default on the account occured at address Y - then he wouldn't find out on a remortgage because the credit search would be against the address not the person...

 

The other thing is that 6 years 5 months is an interesting period isn't it

[letitbeme]

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Edited July 13, 2008 by letitbeme

[letitbeme]

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Edited July 13, 2008 by letitbeme

[I've got no money]

I'm free all day tomorrow and I'll give you my considered view then...

[I've got no money]

The PIN & Chip point is a bit misleading. At that point PIN & Chip didn’t exist. You only needed a PIN if you were using the card in a cash machine. Providing the card was signed it was accepted in all retailers and over the counter at a bank (for cash).

So I don’t really understand why your friend received the card and just put it away. S/he will need to explain why.

Did s/he sign the card or was it just put away?

Section 66 of the Consumer Credit Act 1974 provides that a debtor shall not be liable under a credit token (credit card) agreement unless he had previously accepted the credit token or the use constituted an acceptance of it by him. The debtor accepts a credit token when it is signed or a receipt for it is signed (six plus years ago it wouldn’t have happened) or it is first used by the debtor himself or by a person who, pursuant to the agreement, is authorised by him to use it.

If s66 applies then your hypothetical friend should apply to the court on an N244 to set aside the judgment and to file a defence.

If s66 does NOT apply the other option is Section 84 of the CCA. If the card was misused by someone without your friends knowledge, e.g. the card was stolen, then your friend is only liable for the first £50. If, however, the person who used the card acquired it with your friends consent then the liability is unlimited.

Again your friend needs to apply on an N244 to set aside the judgment

In both cases s/he will need to explain why they just put the card away and why they didn’t contact the credit card company.

[letitbeme]

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Edited July 13, 2008 by letitbeme

[letitbeme]

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Edited July 13, 2008 by letitbeme

[I've got no money]

1. Six plus years ago - it is only very recently that some credit card companies started sending cards to bank branches for collection or by signed for post - that would amount to a signed receipt which would exclude s66. When this card was applied for, you don't say when the earliest date you actually give me is six and a half years ago. I know that no CC companies were sending stuff out by signed for or branch collection then. Hence my comment.

 

2. I am saying that the Act says that if you haven't signed or receipt or used the card or signed the card or allowed someone else...to use ther card that you are not liable for its' use. That is not the same, in legal terms, as rendering the agreement invalid.

 

3. The LPA requires a notice of assignment to be served on the debtor - clearly here it hasn't therefore no valid NOA

[letitbeme]

Resolved

Edited July 13, 2008 by letitbeme

[I've got no money]

I would not suggest that you apply for a strike out on those grounds - I assume that our discussion over the stolen card has nothing to do with this claim.

 

A strike out is used where a claim does not disclose a cause of action at all or where the claim is unlawful OR where the Claimant has failed to comply with Orders (and also failed to pay court fees - but the court deals with that).

 

You have defences to the claim but having a defence is not in itself a ground to strike out the claim

 

The way that you deal with this is that you get an Order that they produce the default notice, the NOA AND the Original Assignments. They won't be able to. You then get an Order that if they don't comply that their case is struck out.

 

Same result slightly different route getting there.

 

I ouldn't worry about them saying that they don't have to keep a copy of the notice. As it is a pretty important piece of evidence for these purposes they do...

[I've got no money]

I really must sort my typing out - I need a new keyboard but IGNM so I can't afford a new one - so many apologies for the truly awful typing

[letitbeme]

Do the also have to produce a copy of the postal record ?

[I've got no money]

The short answer is yes

[letitbeme]

It appears that my keyboard is also playing up. Will have to get one of those keyboard Hoovers , as I think there is a packet of crisps wedged in there.

[letitbeme]

Just one last question.

If the claimant informs the court that the relevant documents are no longer available

(MBNA no longer have them) – What would the outcome be?

[I've got no money]

They are documents to which you are entitled CPR 31.14.

 

The rule is that he who asserts must prove - no documents no proof.

 

The case is either struck out or dismissed