Advice needed on court summons ***Discontinued****

[Jasper1965]

 

The default was July 2005 listed on my credit file so not quite 6 years.

 

If it's listed as July 2005 on your credit file it stands a good chance the cause of action occured before then. You need to ascertain when the last payment you made was, when the last acknowledgment in writing you made was and very importantly when the cause of action accrued.

 

Do not accept the default date on the files at the CRA as being representative of when the cause of action arose as banks leave accounts open for piling on charges for weeks and months after this.

[Jasper1965]

I cannot 100% confirm it is SB so guessing it would be risky to claim this?

 

 

 

You can aver it to be SB'ed and put the claimant to strict proof that it is not:

Obviously just include this as a further point in your defence if not 100% sure but if you ask them in the Part 18 for the dates of your last acknowledgment and the date the cause of action arose you should be on the way although I suspect they will just give you the default date unless you specify the cause as being something different.

[Jasper1965]

Going back to ascertaining when exactly the cause of action arose:

IMO as this is an overdraft then the first sign of the breach might be indicated by you exceeding your overdraft limit and failing upon request to bring your ac back within your limit. I suggest that this will be highlighted on your bank statement as the first of a what's likely to be a series of penalty charges. Your last acknowledgment would be the last payment you made after the charges for the breach were first applied.

If the claimant were to aver that the cause of action accrued on the default date then they are also saying that the breach of the terms and conditions of the account did not occur until the default date.

Ergo any penalty charges applied to the account prior to default are unlawful as by their own argument no breach had at that time occured.

 

The claimants cause of action arose when you breached the terms of the account, not when it was defaulted you need to be very clear on the difference as a successful defence might rest on this single point as it's very likely that several weeks or months passed between the two dates.

The default date might have been created by the debt purchaser and often corresponds to the date they purchase the account. It's also just as likely to be an arbitary date when the OC makes the commercial decision to write down the account. What it's very unlikely to be is the date the cause of action arose.