It's Lowells and Barclaycard - SB'ed question. *** Lowell Agree Stat Barred - SUCCESS ***

[Undercover-Elsa]

From the date you missed the payment - so a month on from now...

 

Absolutely.

It runs from the date of actual default, ie when breach of contract occurs. Therefore, for instance, if you make your normal payment on 25th March, you are not in breach until the day after you miss your next payment on 25th April. If establishing time is of the essence, eg if the claimant issues proceedings very close to the 6 year period, the clause in the agreement relating to breaches would need to be taken into account to precisely establish the date, as if a claim is issued before that date it stops the clock.

In less crucial timescales, yes, the issue of the default notice and/or the marking of the credit file can be a useful guide and clincher.

However if the OC neglected to issue a default notice/default marker within a reasonable timescale (and certainly within 6 months) then that is their problem and the actual date of breach must be established if they try to claim based purely on an unduly delayed default notice/marker date. (From research I did a while ago this gets you into the realms of Doctrine of Laches, I believe)

 

Told you it was murky

Each case will be different. As a rule of thumb, look at the date of last payment, add a month for the missed payment and and check the agreement for the clause on breach just in case it specifically allows for more than 1 missed payment before breach occurs. This can be specially tricky in old student loans where repeated extensions have been made.

[panther12]

I have read on some posts that it depends on what the T&C’s state as to when the SB time runs from. For e.g., it may say if after 1 month of non payment a default notice will be issued, then I would err on the side of caution and take the SB date as 6 years + 1 month + default notice time (even if a DN is not issued).

 

I may be wrong but me personally I think I’d hold off sending the SB just yet in case it gives them a heads-up to fully check. Be a bit of a sickener if they discovered SB was a few days off and quickly got in with a court claim. For time being I’d just let them continue sending their irrelevent twaddle letters.

[jon888999]

As far as I know, the default date matters not a jot, well it will stay on your credit file for 6 years but what that has to do with the debt being stat barred I don't know.

 

The Limitations Act 1980 states that when the following conditions are met then the debt cannot be pursue through the courts.

The conditions are:-

 

That the creditor has not taken court action against you, eg CCJ, AND

You have not made any payments on the debt over the last 6 years,AND

During the years, you haven't written to the creditor acknowledging that owe them money.

 

Thats the way I see it, they can whack a default on your credit report long after your last payment or acknowledgement, so they think the stat barred clock starts from there, I don't think so.

In which case as I see it, the clock starts running when you last paid or acknowledged in writing, not when you first missed a payment. I'm going to wait for them to contact me now. My last letter seems to have shut them up for now anyway.

[Blondie40]

 

Told you it was murky

 

No kidding, thanks for all the info.

 

So if first missed payment was 01/06/2006,

 

T&Cs require breach be rectified with 28 days of breach - 29/06/2006,

 

Debt would then be Statute Barred on 30/06/12

 

 

 

Also thanks for info on DOCTRINE OF LACHES (something further to read up on):

 

Based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights; Neglect to assert a right or claim that, together with lapse of time and other circumstances, prejudices an adverse party. Neglecting to do what should or could, have been done to assert a claim or right for an unreasonable and unjustified time causing disadvantage to another.

 

Laches is similar to 'statute of limitations' except is equitable rather than statutory and is a common affirmative defense raised in civil actions.

 

Laches is derived from the French 'lecher' and is nearly synonymous with negligence.

 

In general, when a party has been guilty of laches in enforcing his right by great delay and lapse of time, this circumstance will at common law prejudice and sometimes operate in bar of a remedy which is discretionary for the court to afford. In courts of equity delay will also generally be prejudicial.

 

But laches may be excused from ignorance of the party's rights; from the obscurity of the transaction; by the pendency of a suit, and; where the party labors under a legal disability, as insanity, infancy and the like.

[Blondie40]

Further thought: if debt is Statue Barred and then, say 30 years later, debtor dies - can Creditor make a claim against Debtors Estate (sorry to be so morbid was at a Funeral last week).

[Guest]

in general, re sb, also note this case particularly re acknowledgements and without prejudice - bradford and bingley v rashid 2006 UKHL 37

Edited August 24, 2011 by Ford

[Undercover-Elsa]

In which case as I see it, the clock starts running when you last paid or acknowledged in writing, not when you first missed a payment

 

No. Only if the last payment/acknowledgement was made after an intitial breach.

The clock starts ticking when the contract (in line with it's terms and conditions) is breached. You don't breach the day after a payment! You breach when you miss the number of payments defined as a breach in the T&C's.

Simples!

 

To be fair, I used to think it was after the last payment, and it's been often stated throughout the forum. However I ended up doing a lot of research on it after reading this thread:

http://www.consumeractiongroup.co.uk/forum/showthread.php?292595-accrual-of-a-cause-of-action-%282-Viewing%29-nbsp

 

Hope this helps.

 

Elsa x

Edited August 24, 2011 by Undercover-Elsa

[jon888999]

Ok, so it's when I breached the contract. I'd be fairly certain the payment on the 23rd was late so my next payment may have been due on say the 10th of september then am I correct in thinking that would be the date? I know it's playing with a few days but it could be important. Although I think my last letter telling them that the agreement they sent was a pre contractual application form which had no prescribed terms or address etc etc. Was no good and I had no recollection of there ever being an agreement. Seems to have shut them up for now. Made sure that I didn't acknowledge anything,

[brokebutnotbeatn]

As Elsa said, it depends on your T&Cs for example you may be 'allowed' 3 missed payments before you breach the agreement (that's an example, it is unlikely).

[jon888999]

As Elsa said, it depends on your T&Cs for example you may be 'allowed' 3 missed payments before you breach the agreement (that's an example, it is unlikely).

 

That could prove interesting,l seeing as they can't come up with an agreement!

[Blondie40]

How is the Statute Barred position affected when a claim is issued (either by OC or DCA who purchased debt), defendant submits a defence - in which they neither admit or deny the debt- then Claimant Discontinue.

 

Does the Statute Barred clock start again at 6 years from the date of the claim being discontinued or does the 6 year clock continue as from the date of the missed payment, having been effectively paused by the claimant issuing and then discontinuing the claim?

[AndyOrch]

How is the Statute Barred position affected when a claim is issued (either by OC or DCA who purchased debt), defendant submits a defence - in which they neither admit or deny the debt- then Claimant Discontinue.

 

Does the Statute Barred clock start again at 6 years from the date of the claim being discontinued or does the 6 year clock continue as from the date of the missed payment, having been effectively paused by the claimant issuing and then discontinuing the claim?

 

You would submit a Statute Barred defence.

 

Andy

[Undercover-Elsa]

Hi Blondie,

If the claimant issued the claim before the SB Limit, providing at no stage in the proceedings had the defendant acknowledged the debt then, imho, the time bar would continue to run from it's original date.

On the other hand, if it was already time barred on the date the claim was issued then nothing or no one can restart the clock.

 

Elsa x

[Blondie40]

Hi Blondie,

If the claimant issued the claim before the SB Limit, providing at no stage in the proceedings had the defendant acknowledged the debt then, imho, the time bar would continue to run from it's original date.

On the other hand, if it was already time barred on the date the claim was issued then nothing or no one can restart the clock.

 

Elsa x

 

Hi Elsa

 

The three claims I defended (two by OC and one by DCA who purchased debt) were issued before SB limit, each being discontinued by claimant shortly before trial (four days in one case). In all three I did not acknowledge debt.

 

Thanks to the excellent advice/info on this site saw all three off.

 

Every once in a while hear from the DCA with a 'please contact us and enter into a payment plan and we will help you, we may be able to negotiate a substantial reduction of amount outstanding'. - Surprisingly no threats of legal action/charging order/bankruptcy anymore.

 

Perhaps the DCA are thinking 'if we send really nice, non-threatening, we want to help you letters, B40 might slip up, ring us and admit they owe the money'.

 

 

Will all be SB by summer next year if time bar runs from original date, although still expect to hear from them before then.

Edited August 25, 2011 by Blondie40

[Blondie40]

You would submit a Statute Barred defence.

 

Andy

 

Hi Andy

 

Claims issued before SB limit came into effect so not able submit defence on this base.

[Stirling2005]

My understanding is stat bar kicks in 6 years and one day from default date or date debt was last acknowledged in writing. Limitation Act Sec 5 et al.

[Undercover-Elsa]

In a nutshell - providing its the actual default date (date of breach) not some random date on which the bank/dca decided to besmirch the credit file

[dx100uk]

the simple answer here is your cra file

 

if it dont show, dont pay & ignore ant spoofers

 

this thread is far too complicated.

 

dx

[jon888999]

1

the simple answer here is your cra file

 

if it dont show, dont pay & ignore ant spoofers

 

this thread is far too complicated.

 

dx

 

Thanks DX, not going to pay them and will tell them it's stat barred next time they contact me.

oh, It's Lowells and Barclaycard.

 

Think this thread has gone as far as it can and it might be best to lock it.

[maroondevo52]

 

Think this thread has gone as far as it can and it might be best to lock it.

 

Thread closed

 

We'll open it again when you get a result.

[jon888999]

Hi,

http://www.consumeractiongroup.co.uk/forum/showthread.php?317220-Stat-Barred-question.&p=3540568#post3540568

 

The account in the above thread is a Barclaycard that Lowell purchased!

They wrote in April demanding a payment so I sent the Stat Barred letter, got a letter today apologising for contacting me and saying they have closed the account as they've realised it's sat barred!

Idjits! I've got PPI to claim on this account so that will be going to OC might wait a bit yet though.

 

My wife had a disputed account with Cabot who kept sending blank agreements kept telling them we needed the original they said they don't so sent them a CPR request and asked them to confirm that they've actually got the signed and executed agreement as they will need it to go to court as that's the only way they would get paid!

Now they've written confirming that the account's unrecoverable and they've closed it!

So that's 8k in total.

 

Perhaps the site team can update my original thread?

 

Take Care Jon

[jon888999]

Should have said both letters carefully filed for the next mugs who buy them!

[ims21]

OP Says Lowell have agreed this is SB so have updated thread title to reflect this

[ims21]

Hi

 

I've updated the Lowell/BC thread for you

[dx100uk]

i've merged them here

 

now you need to really upset BC and get that PPI back!!