Cabot/? claimform - old Citi Card Debt - statute barred debt county **DISCONTINUED**

[leerob965]

Hi all

 

I have just recieved a county court claim from from northampton bulk centre

 

the alledged debt is over 10 years old and certanly no payment has been made on this account in the last 8 years

 

therefore i believe this to be statute barred

 

i intent to defend this claim for the full amount but my question is

 

on the defence claimform (DEFENCE AND COUNTERCLAIM) PART 3 DEFENCE

how do i word my defence to state this debt is statute barred

 

also is there anything else i ned to do or any other letters to send out

 

 

i have done a search but after 4 hours searching my head is spinning

many thanks

[42man]

Hi Leerob.....welcome to the CAG....i'm moving this to the Legal Forums where you will get some more help....

[42man]

Leerob....I would state on the defence form plainly that the Debt is barred by the Statute Of Limitations Act 1980 - not sure that you need to put anything else, but hopefully others may add to this...

[rory32]

And just add the 6 years bit as well to the Limitation Act 1980 bit.

 

Limitation Act 1980 Section 5 “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.”

 

 

Just for further info once a limitation argument has been raised, the burden of proof is on the creditor to prove that the debt isn't statute barred.

 

London Congregation Union Inc v Harriss and Harriss [1988] 1 All ER 15, CA at 13.3)

[leerob965]

so i should put the following:-

 

the alledged debt is barred by the Statute Of Limitations Act 1980

 

Limitation Act 1980 Section 5 “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.”

 

dosn't that sound a little cocksure of myself of would this be ok

 

do i not need to ask for a cca or has it gone to far for that

[surfaceagentx20]

Here is a form of limitation defence to a claim based upon a simple contract. There may be other grounds of defence in this particular case, but this defence alone will serve to defeat the claim assuming the facts stated in it are true.

 

You are entitled to be cocksure.

 

1 The Claimant's claim was issued on (date).

 

2 The Claimant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

 

3 The Claimant's claim to be entitled to payment of £x or any other sum, or relief of any kind is denied.

 

I BELIEVE THAT THE CONTENTS OF THIS DEFENCE ARE TRUE.

 

Signed:

 

Dated:

 

x20

[42man]

Excellent thanks Rory and SAx20 !!

[leerob965]

thanks for the help but im getting very confused on the defence form i should write points 1 2 and 3 in the box 3 (defence)

 

why should i be saying

The Claimant's claim to be entitled to payment of £x or any other sum, or relief of any kind is denied

isnt that the sort of thing the judge should state

 

sorry but this is a new experience to me and getting a little worried in just filling in the form correct

[42man]

The answer is yes.....put all those points in the box....the experience of the 2 guys above is truly invaluable....they know their stuff...!!

[surfaceagentx20]

leerob,

Have a look at the Particulars of Claim. Aren't the words used by the Claimant equally assertive? Are there any 'thinks', 'suggests' or 'reckons'? A litigant has to appear robust. Anything less than a robust plea would tend to introduce a degree of doubt or uncertainty to it.

 

I can understand you feeling uneasy about puffing out your chest and proclaiming law so authoratively, but a Defence as a form of written pleading is a succinct statement of the facts and matters relied upon in defence to the proceedings brought. That's why I said you were entitled to appear cocksure. It's just the way these things are done.

 

x20

[leerob965]

thats great thanks for your help

 

do i not need to ask for the CCA or is that the next step

Edited October 2, 2008 by leerob965

[surfaceagentx20]

So this is a consumer credit agreement, in which case most likely we'll be wanting to see it. Hold off sending that defence in right now. Just enter an acknowledgement of service indicating you will contest the entire claim for the time being and let's see what else can be argued.

 

Can you post the text of the Particulars of Claim if they're not too long?

 

x20

[leerob965]

particulars of claim

 

The defendent was indebted to

CITIFINANCIAL EUROPE PLCfor credit advanced.The debt was assigned

to the claimant.

Notice of assignment was given to the defendent.

the claiment claims the debt due from the defendent of 7xx.xx

together with interest at the rate of 8% per annum pursuant to section 69 of the county courts act 1984 amounting to 2xx.xx and also claims

further interest until judgement or sooner payment of the daily rate of 0.17

 

 

hope this helps

 

many thanks

Edited October 2, 2008 by leerob965

[make them aktiv runners]

Here is a form of limitation defence to a claim based upon a simple contract. There may be other grounds of defence in this particular case, but this defence alone will serve to defeat the claim assuming the facts stated in it are true.

 

You are entitled to be cocksure.

 

1 The Claimant's claim was issued on (date).

 

2 The Claimant defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

Do not allow denial as you know it to be true, change last sentence to ' the claimant should already be aware more than 6 years have elapsed between cause of action accrued and the court claim by their court submission.'

3 The Claimant's claim to be entitled to payment of £x or any other sum, or relief of any kind is denied.

 

I BELIEVE THAT THE CONTENTS OF THIS DEFENCE ARE TRUE.

Be more assertive and disallow doubt to appear, change 'believe' to 'am absolutely certain'

Signed:

 

Dated:

 

x20

Couple of amends

[surfaceagentx20]

Aktiv has spotted my deliferate mistale in para 2. However the remainder of the suggested amendments are with all due respect, spurious, the suggested amendment to the statement of truth particularly so (See CPR PD 16 para 11.2).

 

Besides, my draft was in relation to a simple contract. It is now evident with the info at post no11 and the release of the PoC that the claim originates with a CCA. The claim now advanced has the hallmarks of one concerned with interest only with the principal debt perhaps having fallen by the wayside. The cause of action may not therefore be in relation to the principal debt but to interest accrued upon it.

 

An interest rate of 8% yielding £0.17 per day would suggest a principal debt of £775.00 odd with accrued interest of £2xx.xx suggesting 3-4 years interest since the principal liability was incurred. I suspect the £2xx.xx to be interest upon interest and the 3-4 years represents 10 minus 6 years (ie interest 2004-8) as the OP has recorded.

 

Like I said, in those circumstances the proper course is to delay serving the defence until better information is to hand. The interest calculation does not conform to CPR 16.4(2) and the PoC cries out for the service of a CPR 31.14 request.

 

I'll put something together to send to the other side tomorrow / the weekend.

 

x20

[make them aktiv runners]

Sorry X20, I was just looking at your post over being assertive and factual with no thinks etc, did not realise there had to be a final statement as you worded.

 

Can you explain the difference between principal and interest under the Limitation Act as I for one is confused?

[surfaceagentx20]

Hi aktiv and no worries. I'm glad you took the assertive part of my advice to heart.

 

As for the interest side of things:

 

Where there is an interest provision in a contract for the payment of money, interest will run in the event of non-payment from the date payment fell due. So for example, in a contract made on 1 September 2002 providing for the payment of the price on 1 October 2002, where there is default in payment, the right to sue on the principal and interest both run from 1 October 2002 (not 1 September you will notice). The provisions give rise to two causes of action on the one contract; a cause of action on the principal and another on the interest. There would be two causes of action because adopting this example, if the principal was paid on let’s say 1 November 2002, there would still remain for the benefit of the creditor, a right to sue under the contract for the interest which had accrued due during October. [Example 1].

 

In the above example the cause of action accrued on the principal on 1 October 2002, a little over 6 years ago. Let us suppose that on 1 October 2008 the creditor starts a claim. Clearly, on 30 September 2008, the right to sue for the principal was lost. But in terms of the cause of action for interest, the DCA will argue that a right to interest endures. He will say a right to the first day’s interest accrued the day after the principal debt first became payable, ie 2 October 2002 and so on. [Example 2].

 

Extending that further, if the cause of action accrued say 10 years ago on 1 October 1998 and proceedings commenced on 1 October 2008, the creditor will argue that the right to sue on that day extends to all that daily interest accumulated during the period 2 October 2002 (being one year short of 6 years prior to the start of the proceedings) down to 30 September 2004 (the last day on which proceedings on the principal may have been brought after which it became unenforceable). In this example therefore, the creditor would be seeking the equivalent of the interest which had accumulated during the last two years of the principal’s limitation period. [Example 3].

 

Invariably and owing to a complete lack of scruples, the creditor will falsely state his interest claim as being a single ‘debt’ figure falling due on 30 September 2004, whereas in truth, in my opinion, properly stated it is a claim for arears of interest. He will also claim interest on it for 4 years from 30 September 2004 at 8% per annum pursuant to County Court Act 1984 section 69 and continuing daily interest at the same rate thereafter.

Now that is how I imagine the unscrupulous creditor frames a claim where the principal debt has passed its limitation period. It has nothing to do with debt and everything to do with interest on the debt.

 

How to beat it?

Certainly, and adopting the hypothetical case above, the claim for continuing contractual interest ceased on the expiration of the limitation period. Further, the right to statutory interest is excluded from the statute in my opinion. In the High Court the relevant statutory provision is Supreme Court Act 1985 section 35A and in the County Court it is County Courts Act 1984 section 69. Both sections are entitled ‘Power to award interest on debts and damages.’ The statute distinguishes between interest, debt and damages and interest may only be awarded on debt or damages. Defendants should be wary of the creditor dressing up the claim to interest as if it were a ‘debt’ in an attempt to come within the section.

 

Indeed, Law Reform (Miscellaneous Provisions) Act 1934 section 3(1) expressly dis-applies any power of the court to award interest where that interest would amount to the giving of interest on interest.

 

(1) In any proceedings tried in any court of record for the recovery of any debt or damages, the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment:

Provided that nothing in this section—

(a) shall authorise the giving of interest upon interest; or

(b) shall apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise

 

It’s worth noting section 3(1)(b) as well for a moment. If the Act expressly directed that interest was not to be awarded to a party where that party had a right to interest by virtue of an agreement, it would in my opinion be perverse, for the court to permit the recovery of interest in a situation where the creditor had once had but no longer had a right to interest by virtue of an agreement and which right was lost to him by his own dilatoriness coupled with statutory provision found in Limitations Act 1980.

 

As for the interest itself I have searched long and hard for a decided case on the point. I can’t find one. Which is not to say there has not been a case decided on the point. Nonetheless, my guts tell me the award of interest by means of the formula described above would be offensive to the nose of your average Judge and he would be keen to be able to reject it if there was judicial authority.

 

In the absence of a decided case, the place to start it seems to me is the Limitation Act itself. There is nothing in the Act which expressly permits the recovery of interest as a distinct cause of action attached to a simple contract by means of the formula I have described. Moreover, Parliament had in mind allowing the recovery of arrears of interest when it enacted the Limitation Act 1980 in the domain of arrears of interest secured by way of mortgage on land [see section 20(5) of the Act] where the right to the principal endured for twelve years. Had Parliament intended to preserve an enduring right to arrears of interest after the limitation period for the beginning of proceedings on the principal had expired, it would seem logical that Parliament would have expressly included such a provision in the Act.

 

These are just thoughts on how to beat this kind of claim. My reasoning is always subject to scrutiny.

 

x20

Edited October 3, 2008 by surfaceagentx20
Law Reform (Misc Provs) added

[leerob965]

exuse my ignorace but in laymans terms what does that mean and what do i need to do now as im really getting confused about this now

[surfaceagentx20]

Hi leerob,

What my earlier post was all about was by way of answer to activ and me basically trying to second guess how a debt collector might try to dress his claim up in circumstances where the main debt (the principal) had long been barred but the debt collector sought to recover something in relation to interest.

 

Anyway, on to your needs. What I recommend we do at this stage is send off a letter requesting the prompt supply of those documents which ought to have been disclosed at the time the proceedings began, which would have been identified in the Particulars of Claim if the Claimant had properly pleaded its case and, a full statement of the manner by which the Claimant asserts the right to interest, to include a statement from the Claimant saying whether there is any interest, and if so how much interest within the figure of £7xx.xx.

 

Here's that letter for delivery to the Claimant or where the Claimant proceeds by solicitor, to the solicitor.

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

 

Combined CPR 31.12 and CPR 16.4(2) Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court. I confirm having returned my Acknowledgement of Service form to the court indicating my intention to contest all of the proceedings.

 

Owing to the striking lack of particularity in your Particulars of Claim, I require the prompt disclosure by you pursuant to CPR 31.12 of each of the following documents, mention or reference to which would have been made had the Particulars of Claim contained the minimum of necessary particulars and complied generally with CPR PD 16.

 

1 the agreement giving rise to the obligation to Citi Financial for the credit advanced. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the deed or other instrument of assignment by which you / the Claimant acquired rights under the agreement disclosed by you under [1] above.

 

3 the default notice, the service of which was a condition precedent to the creation of the debt now sued upon by you pursuant to the assignment disclosed by you under [2] above.

 

Additionally and in relation to the interest claimed, pursuant to CPR 16.4(2)

 

4 Under CPR 16.4(2)(a)(i) please now state whether the claim to £7xx.xx includes a claim for interest under the agreement disclosed under [1] above and if so,

 

5 Under CPR 16.4(2)(b) specify the amount of that interest, and

 

6 the percentage rate of interest, the date from which it is calculated and the date to which it is calculated, alternatively

 

7 Where more than one percentage rate of interest has been applied or compound interest has been applied in the calculation of the amount of interest specified at [5], specify each element of interest comprising the sum for interest specified at [5] and for each such element specify the amount treated as principal in the interest calculation, the percentage rate of interest, the date from which it is calculated and the date to which it is calculated.

 

8 Of the interest amounting to £2xx.xx claimed pursuant to County Courts Act 1984 section 69, specify the date from which it is calculated and the date to which it is calculated.

 

Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise.

 

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.12 request.

 

You should also ensure compliance with your CPR 16 duties and likewise ensure that the particular regarding interest are fully provided to and received by me within 7 days of receiving this letter.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request.

 

If you are unable to comply with that part of this request concerned with CPR 31 and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with any part of this request or fail to request more time, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I look forward to hearing from you.

 

yours faithfully

 

Any queries, just yell.

 

x20

Edited October 3, 2008 by surfaceagentx20

[leerob965]

thanks for that

in laymans terms what is the letter saying

 

also with your experience in this type of matter what do you feel will happen next?

 

also do i sign the letter

 

 

 

looking back this debt hasnt had any payment in 10 years (i took it out before i was married)

many thanks for your help on this matter x20

Edited October 3, 2008 by leerob965

[surfaceagentx20]

This letter tells the Claimant the claim is going to be defended from top to bottom and you're no push over either.

 

It tells the Claimant or its solicitor they need lessons in putting a proper case together and, underneath all that, that we know they put the case the way they do because they're trying to hide things. Because of the demands which are made, we let the Claimant know they can't hide because we know how to use the law to strip away every corrupt layer they ever did cloak their sordid business in.

 

The law stuff is the CPR. The Civil Procedure Rules. Where you see in the letter a reference to CPR, that's a reference to a rule the other side have ignored and for which we're going after them. We're going after them because they haven't provided

 

[1] essential documents like the CCA, the default notice and the assignment. All the stuff in writing the Claimant will need to show a right to sue. We want this stuff to check out whether the right to sue is valid or not and whether the paperwork is in order.

 

[2] details of where the Claimant gets its figures from. Just so we can double check the numbers and the interest claim and make sure there's no fiddling going on and, if there is fiddling go on, to be able to expose the fiddle.

 

The letter says we want all this info just a week after the Claimant gets the letter. The letter tells them they can't wriggle out of it. They've got no choice but to play by the rules and if they don't, we'll take a complaint up with a Judge who will make them play by the rules or kick their case out.

 

You getting the picture? You see where we headed?

 

x20

[leerob965]

yes i see where we are heading thanks

one more question though as the debt is over 6 years and should be statute barred isnt the letter admitting the debt and will it start the clock ticking again

 

ill send it first thing recorded delivery do i sign it and do i need to put a postal order in in?

 

thanks for your help

[make them aktiv runners]

Thanks X20, I was curious as to the reasoning the DCA's have when they respond to Limitation Act letters along the lines of 'you do not understand statute' yet still back off.

 

Personally I would have said the limitation act effectively makes capital and interest zero 6 years after cause of action, therefore further interest must be calculated on the last actual balance, ie zero. The only exception is CCJ cases where some interest can be charged as it specifically separates the 2.

 

leerob965, apologies for intruding. I did assume the questions would be of interest to you too.

 

If you go to court and are asked by the judge 'do you know of this debt' you cannot lie, so admittance at this point is not really the issue. Under the limitation act, once a right of action is barred by the act (often applies after cause of action) it cannot be resurrected by further acknowledgement, in simple terms after 6 years you can admit without it restarting the clock.

 

No postal order needed, you are offering to pay reasonable photocopy costs only despite it being your right to the information, ie you are already being very polite.

[surfaceagentx20]

leerob,

The letter opens with a statement that the acknowledgement of service has been returned indicating an intention to contest all of the claim. There is not a single admission of anything in the letter. In any case and as acktiv corectly states, once a debt is statute barred an acknowledgement or payment can not operate to renew the limitation period.

 

There is no need to send any money with the letter.

 

x20

[leerob965]

Many thanks for that i have printed letter and it will be sent first thing tommorow recorded delivery

 

i will keep you posted in the meantime

 

thanks for your help