Clarification re Statute Barred

[steven4064]

If the cause of action arose on 20/08/01 then it has to be time barred, surely

[letitbeme]

Hi Steve.

No I’m afraid not, the court action started on the 19th Mar 2007. I have not made any payments since 1st Oct 2000, which under the T/C of the contact is a breach of the account. It appears that the limitation ions Act is quite complex in regards to cause of action. Some say it is last payment and others say day after default notice. I have tried to clarify but it’s a catch 22 situation.

 

Regards LIBM

[tiglet]

It was my understanding that it was last date on which a payment was made or the debt acknowledged in writing???

 

Surely the statute of limitations would automatically apply in this case?

[letitbeme]

Hi tiglet, I wish it where so simple. will have to make sure that my argument stands up in court, so on with the quest for clarification re statute barred.

 

 

No payment to MBNA since 1st OCT 2000 - Notice of Default (supposedly issued on 20th Aug 2001.) - Court action started on 19th Mar 2007 - is this action Statue Barred?

Edited June 7, 2008 by letitbeme

[steven4064]

I think the cause of action is not the last time you paid but the first time you didn't (if you see what I mean) as the cause of action is the fact that you didn't pay when you shuold have done. So, if you last paid on 1/10/00, the cause of action should be from 1/11/00 or whenecer the next payment was due.

[tiglet]

Sorry, yes I agree with steven4064 - a default notice can be issued at any time after a default notice is issued so I can't see how that could apply.

[pt2537]

I agree with steven,

 

A default notice is something which must be done before enforcement can commence, it is not something however which stops the limitation time clock from ticking, so if you miss a payment then legally the creditor can default you, this issue over 2 or 3 missed payments must be missed before action is very generous as it allows the creditor some degree of flexibility

 

arguably the clock starts from the point where the other party can start litigation so in your case , one month after missed payment the cause of action arises IMHO

[steven4064]

There action is presumably based on breach of contract. You had a contract (agreement) with MBNA that said you must make the minimum payment on a certain date each month or when they advised. You did that up until 1/10/00. On 1/11/00 you didn't make the required minimum payment and therefore breached the agreement and the fact that you didn't make that payment or any payment since is the reason they are taking you to court - it is the cause of action.

 

Section 5 of the LA 1980 says that, in those circumstances (action based on simple contract) thelimitations period is 6 years from teh date of the cause of action (ie 1/11/00).

 

IMO, if the court papers were served on you at any time after 1/11/06 then the action is time barred. Nothing else is relevant.

[letitbeme]

I am trying to get acces to case Law in relation to my current defence. Can I get access to case Law listings at my local Library or can some one direct me to a website where I can look up the relevent case law.

Regards LIBM

[steven4064]

Which cases do you want?

[pt2537]

as Steven says, which ones do you want, i have pretty much all of them so take your pick:)

[letitbeme]

Hello Paul, thanks for dropping by, the case law I would like to read :-

WF Harrison & Co Ltd v Burke [1956] 2 All ER 169

Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal

Reeves V Butcher

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

The points that I am arguing in my defence are: -

1. Debt is Statute Barred.

2. No default notice sent.

3. No notice of assignment sent.

4. No credit card statements sent.

5. No evidence outlining how the balance has been accounted.

6. The assignee has not been assigned the debt correctly.

7. The account balance is riddled with illegal account charges.

Also Paul, If you could include any case Law that would be relevant in arguing my case, it would be most appreciated.

Regards LIBM

[pt2537]

no worries, can get all of them

 

leave it with me and i will get on it over the weekend and see what i can do

[letitbeme]

Thanks Paul, shale I take it that there is nothing detrimental in the documents posted in Post 101.

Regards LIBM

[letitbeme]

An award should go to the Virgin Airlines desk attendant in Sydney some months ago for being smart and funny, while making her point. She was confronted with an irate passenger who probably deserved to fly as cargo.

A crowded Virgin flight was cancelled after Virgin's 767s had been withdrawn from service. A single attendant was rebooking a long line of inconvenienced travellers. Suddenly an angry passenger pushed his way to the desk. He angrily slapped his ticket down on the counter and said, "I HAVE to be on this flight and it HAS to be FIRST CLASS".

The attendant replied, "I'm sorry, sir. I'll be happy to try to help you, but I've got to help these people first, and I'm sure we'll be able to work something out".

The passenger was unimpressed. He asked loudly, so that the passengers behind him could hear, "DO YOU HAVE ANY IDEA WHO I AM?"

Without hesitating, the attendant smiled and grabbed her public address microphone: "May I have your attention please, may I have your attention please", she began - her voice heard clearly throughout the terminal.

 

"We have a passenger here at Desk 14 WHO DOES NOT KNOW WHO HE IS" " If anyone can help him find his identity, please come to Desk 14.

With the folks behind him in line laughing hysterically, the man glared at the Virgin attendant, gritted his teeth and said, "F*ck You!'

 

Without flinching, she smiled and said, (I love this bit)

 

"I'm sorry, sir, but you'll have to get in line for that too".

[letitbeme]

Hi Paul. I telephoned the court today (13-06-08) regarding my allocation questionnaire. The case handler informed me that the case has been set aside for a mediation hearing.

 

Could you advise me as to why the Judge has requested this and what should I be doing in response.

 

I was going to send a letter to link outlining my defence and the case Law supporting it. And that if they discontinued with their claim, I would not pursue my counter claim for costs. What are your thoughts?

 

Regards LIBM

[letitbeme]

I have just received a telephone call from MBNA asking me if I would like to take out a consolidated loan agreement with them. Considering that I have a dispute going on with them in regards to my credit card (reed this thread) and a complaint lodged with FOS instructing them to investigate the fraudulent activities on the credit card. I find it odd that they would be offering me this at this time. I am curios as to how they obtained my telephone No. It was changed a couple of months ago and is ex-directory. FOS is the only ones that have it at the moment. (The plot thickens)

[letitbeme]

Am I aloud to send this letter to the claimant

 

 

 

WITHOUT PREJUDICE SAVE AS TO COSTS

 

 

 

Dear Sir,

 

Thank you for your letter dated 4th June2008.

 

I have just finished a telephone conversation with a mediation clerk at Liverpool County Court, regarding the ongoing court case. I outlined the history of this dispute and also clarified the main points of your claim and my defence to that claim. He has suggested that I communicate with you in the hope that we can come to a settlement in regards to the disputed debt.

 

Before I touch upon the mater of settlement I need to address the particulars of your claim and the legal arguments that effectively show that you do not have the legal right to pursue this action in court.

 

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 3 or 6 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 need to address, 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.

 

The Financial Ombudsman Service is investigating my complaint against MBNA, and the FOS has instructed MBNA to investigate the theft of my Credit Card. Please see attached copy letter.

 

MBNA has informed me that they are investigating and will get back to me with there findings. Please see attached copy letter.

 

On the 15th June 2008 I spoke to the Police officer investigating the theft of the Credit Card and the fraudulent use of my identity. He has informed me that he requested the account history from MBNA and there is nothing further that he can do until he receives the documents.

 

I hope that I have clarified my defence of statute barred and as matters stand I am of the opinion (based on legal fact) that you do not have any legal cause to progress further with your claim.

 

I propose that if you discontinue this claim I will not pursue you for costs in the courts. If on the other hand you decide to proceed with your claim, and upon the striking out of your claim, I will request the Judge make a cost order against you.

 

 

I will be sending a copy of this correspondence to the mediation service.

 

I suggest that you do the same with your response.

 

 

Yours sincerely

Edited June 20, 2008 by letitbeme

[letitbeme]

Well if the above post doesn’t show the ere of there ways then I don’t know what will.

[pt2537]

what was the outcome of the mediation telephone hearing?

 

it would be helpful to know what has been said to be able to consider what the next move should be

[letitbeme]

Hello Paul, The first telephone conversation with the mediation service was in reference to what I should be doing in progressing the situation towards an amicable settlement. I outlined my current position in regards to the history of the disputed debt, and the legalities and case law supporting my defence. I then outlined the claimants POC and there counter defence to my defence. I illuminated the issue of Limitations in regards to both sides (Default Notice date and breach of contract date). We both agreed that I should send the claimant a letter explaining the situation and include my settlement proposal. The mediator inferred that in his opinion “ If this claim ends up in court the Judge will not be a happy chap”. I am now awaiting an answer to my proposal “I propose that if you discontinue this claim I will not pursue you for costs in the courts. If on the other hand you decide to proceed with your claim, and upon the striking out of your claim, I will request the Judge make a cost order against you.”

 

Will update as and when things start to transpire

 

Regards LIBM

Edited June 21, 2008 by letitbeme

[pt2537]

oh ok, well, i think they would be real mcmuffins to press this issue before the judge, especially since they are wrong regarding the cause of action and the time it arose

[letitbeme]

I agree with you Paul – but there are a few things that I have learned from life “ 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.

Regards LIBM

[letitbeme]

Updated and amended

 

Link Financial Ltd

Camelford House

87-90 Albert Embankment

London

SE! 7TP

 

 

WITHOUT PREJUDICE SAVE AS TO COSTS

 

 

 

Dear Sir,

 

Thank you for your letter dated 4th June2008.

 

I have just finished a telephone conversation with a mediation clerk at Liverpool County Court, regarding the ongoing court case. I outlined the history of this dispute and also clarified the main points of your claim and my defence to that claim. He has suggested that I communicate with you in the hope that we can come to a settlement in regards to the disputed debt.

 

Before I touch upon the mater of settlement I need to address the particulars of your claim and the legal arguments that effectively show that you do not have the legal right to pursue this action in court.

 

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.

 

 

 

The Financial Ombudsman Service is investigating my complaint against MBNA, and the FOS has instructed MBNA to investigate the theft of my Credit Card. Please see attached copy letter.

 

MBNA has informed me that they are investigating and will get back to me with there findings. Please see attached copy letter.

 

On the 15th June 2008 I spoke to the Police officer investigating the theft of the Credit Card and the fraudulent use of my identity. He has informed me that he requested the account history from MBNA and there is nothing further that he can do until he receives the documents.

 

I hope that I have clarified my defence of statute barred and as matters stand I am of the opinion (based on legal fact) that you do not have any legal cause to progress further with your claim.

 

I propose that you discontinue this claim and on receipt of written confirmation I will not pursue you for costs in the courts. If on the other hand you decide to proceed with your claim, and upon the striking out of your claim, I will request the Judge make a cost order against you.

 

 

I will be sending a copy of this correspondence to the mediation service; I suggest that you do the same with your response. I reserve the right to draw this letter to the attention of the Court should you decide not to accept the offer made.

 

Yours sincerely

 

 

XXXXXXXXXXXXXXX

Thanks for the edit

Edited June 22, 2008 by letitbeme
removed personal details

[Percival Wigglesbottom]

To prove a 'debt' is statute barred , does it require that proof be made of a 6 year term of no payment/acknowledgment or can it also depend on the lack of proof that any 6 year period does not exist ?

 

For example . If it is established that i last made a payment/acknowledgment on 1st january 2000 , then that would be considered statute barred as we understand it . We have a date of cause of action and an end date ( today for example) that establishes that it is over 6 years .

 

If there is no evidence of when the date of cause of action could have occured , ie no cca agreement that would indicate when the agreement was signed, then we have a situation where we have the possibility that it be statute barred but we have no firm dates, no real hard time stamps as we do in the first instance. However , as it is said, it is for the dca to prove there is no 6 year period . So, this could work with the OFT , but how likely would it stand up in court ?