vjohn82 vs. Lowell

[vjohn82]

Formal complaint about ignoring a s.10 DPA notice back in July 2010 as they were recording info which I did not recognise. I wrote another follow up in Jan this year which was completely ignored.

 

Received a letter today stating that they reserve the right to "instruct solicitors to issue legal proceedings against you without further notice".

 

Considering that they have ignored all requests under the formal complaint process, it will be interesting to see on what grounds they issue proceedings.

 

They have attached a statement of account which references absolutely NO payments on the account whatsoever, an initial debt of £224.42, a host of late payment fees/overlimit fees etc.

 

This is the default on my CF:

 

 

Last transaction on account in Feb 2005. Default registered 21/06/05.

 

I'm sure the debt is statute barred anyway; a discussion has taken place on the forum regarding whether it is from the last date of payment or the last cause of action (being the default marker).

 

I'm a last date of payment kinda guy; if it hinged upon the default date then a lender would never issue a default.

[vjohn82]

Letter written today:

 

Dear Sir/Madam,

 

I acknowledge that legal proceedings are being initiated and I reserve all rights to counterclaim for significant damages as I do not acknowledge the debt in question as you have provided no compelling evidence under the formal complain procedure or under any other request.

 

Please notify me within the next 14 days which solicitors you will be instructing and please take this as notice under Civil Procedure Rule 31.16 that I require the following documents before proceedings begin:

 

1) A copy of the signed, executed Consumer Credit Agreement

2) A copy of the Default Notice served under s.87 of the Consumer Credit Act 1974 (“the Act”)

3) A copy of the deed of assignment assigning all rights and duties under a contract between the original lender and Lowell or, in the alternative, a full history of the chain of assignment up to today's date

 

Please note that as you have referred to legal recourse being taken you are now held by your words and actions. As a result you are bound by the Civil Procedure Rules which are set in statute law. Should you fail to disclose the documents above within 14 days I shall make an application to the court where I shall seek compliance under the Civil Procedure Rules and claim for the costs in making such an application.

 

It is in your interests to seek legal guidance on this point; an application will be made in respect of this request should you not comply with it.

 

The deadline for responding to this request is the close of business on the Monday 2nd May 2011.

 

Yours faithfully,

[DonkeyB]

Subbing. Nice letter.

[DonkeyB]

PS I'm getting fed up of the obnoxious reference to 'subbing' added by site admin. There are NO thread tools available on the mobile version of the site, which I'm using today and which I'm sure many others use, so please drop the clever dick grandstanding comment, site team. Rant over. Sorry VJ!

[vjohn82]

Rant away fella, rant away

[broken arrow]

Not subbing but following........

[panther12]

 

Last transaction on account in Feb 2005. Default registered 21/06/05.

 

I'm sure the debt is statute barred anyway; a discussion has taken place on the forum regarding whether it is from the last date of payment or the last cause of action (being the default marker).

 

I'm a last date of payment kinda guy; if it hinged upon the default date then a lender would never issue a default.

My understanding is that it runs from the date that the creditor is able to issue a default (not necessarily the date they actually get around to doing it). For e.g. if the T&C’s state that if sums remain unpaid after 4 weeks the creditor can issue a DN, the time limit will commence from 4 weeks after the last payment. Whether or not they do issue a DN is a matter for them but makes no difference to the time limit as it commences from the date the T&C’s state they can issue one.

[coledog]

I am participating not subbing. Interesting debate

[Docman]

I'm a camp follower, not subbing!

[vjohn82]

My understanding is that it runs from the date that the creditor is able to issue a default (not necessarily the date they actually get around to doing it). For e.g. if the T&C’s state that if sums remain unpaid after 4 weeks the creditor can issue a DN, the time limit will commence from 4 weeks after the last payment. Whether or not they do issue a DN is a matter for them but makes no difference to the time limit as it commences from the date the T&C’s state they can issue one.

 

That would conflict with all consumer contracts that state a creditor can wind up an agreement (termination) giving notice.

 

I would argue that the cause of action begins for a debt on the date which credit is drawn because that would be the date upon which the creditor could demand a payment. If an account remained at "zero" the creditor would obviously be prevented from any repayment options.

 

I look at all sides of an argument so the flip side is that "cause of action" is a specific legal term which Wikipedia defines as:

 

In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party

 

A creditor could therefore argue, and has argued in my previous cases, that this COA would not begin until the 14 days after DN is served or even entered on a credit file. There is nothing in statute to say that this is right. T&C's are not accommodated in the statute either.

 

A consumer help site references this as the position:

 

On revolving credit accounts the statute of limitation starts when the first payment is due

 

This would support my original contention.

 

The government takes this position:

 

Under the Limitations Act 1980 the time limits are

 

in simple contracts, 6 years

in contracts under seal, 12 years.

If the debtor acknowledges the debt in writing or makes a part payment within the original limitation period, then the time limits start to run again from the date of acknowledgement or the date of payment.

 

Nothing about when the "limitation period" begins.

 

The Credit Services Association, self professing that CAG is their "nemesis" in regards to statute barred debts, has given their members this guidance:

 

"Under the Limitation Act 1980, which applies to England and Wales, a debt is considered to be statute barred when no payments have been made against it or where it has not been acknowledged* for six years. In Northern Ireland, statue barred debts are governed by the Limitation (Northern Ireland) Order 1989. In Scotland, statute barred debts are governed by the Prescription and Limitation (Scotland) Act 1973 which states that the debt itself ceases to exist after five years providing that it has not been acknowledged and that no relevant claim against it has been made by the creditor.

 

*For clarification purposes, acknowledgement is either acknowledgement made in writing or a payment received against the debt. Once acknowledgement is received, this re-sets the limitation period.

 

This seems to be the proper position. Looking at the statute:

 

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.

 

Accrued is the key word. You cannot "accrue" a cause of action from the date upon which you decide to take action (namely the expiry of the 14 day period at the end of a traditional Default Notice OR, I would argue, contractual T&C's) because the accrual exists from the date which gave reason to be allowed to take such action.

 

In the event of an unpaid debt this would be the date upon which the debtor last drew credit from the creditor without repayment because this is the first date of of accrual of both interest and from when the creditor is afforded rights of repayment (both under common law, T&C's etc). It also matches up nicely to the wording of the LA1980.

 

That's how I get to my point of view anyway.

[panther12]

That’s interesting stuff and I would tend to agree and would like to see a dca try and argue that it’s not barred when no payment has been made in 6 years. I’m a long way off that in the cases I’m dealing with but have saved your comments to use when the time comes just in case a dca tries that one on with us.

[vjohn82]

Thanks. I could probably word it better but the argument is there for all to use.

[Guest]

........would like to see a dca try and argue that it’s not barred when no payment has been made in 6 years....

 

as vjohn pointed out, in general the clock would reset where there has been a written acknowledgement.

this case may be of general interest re written acknowledgments and wp etc for eg. bradford and bingley v rashid 2006 UKHL 37

imo

Edited April 16, 2011 by Ford
typo

[vjohn82]

as vjohn pointed out, the clock would reset where there has been a written acknowledgement!

this case may be of general interest re written acknowledgments and wp etc for eg. bradford and bingley v rashid 2006 UKHL 37

imo

 

Yes, this was a case I was alerted to some months ago.

 

The Judge ruled:

 

If the test is whether the parties were genuinely negotiating over liability rather than the concession of an indulgence, it would have to be excluded. And this would be the case even if the dispute over liability was relatively trivial.

 

A simple denial of liability appears sufficient in common law which is why it is important to mark your communication as such (should you decide to correspond at all).

[Guest]

hi

was posting 'in general' for reference (yes, i have posted that case up before). didn't know whether or not there was any prior relevant written communication in your case.

Edited April 16, 2011 by Ford

[vjohn82]

hi

was posting 'in general' for reference (yes, i have posted that case up before). didn't know whether or not there was any prior relevant written communication in your case.

 

Not at all likely. It's been one of those debts that was brushed under the carpet. That the lender, or DCA, has failed to act until now is not really my fault now is it

 

There was a miscellaneous amount on my credit file which appeared out of nowhere under the name of Lowell; I wrote to them under the normal function of trying to find out what it was for. Turns out it was for this.

 

However they still haven't provided written proof of liability in the form of a contract. Default drops off in two months anyway.

 

vjohn82 1 - Lowell 0

 

Thanks