Limitation act 1980 & bankruptcy petition

[KVF]

Hi

 

I have been reading various threads on this forum with interest but need to know if anyone can clarify dates for me with regards to the limitations act and statute barred debts.

 

I know if a County Court Claim is issued within 6 years then it is valid. However the creditor (Lowell Portfolio 1 Ltd) has jumped straight to a Bankruptcy Petition.

 

My last payment for the debt was in July or August of 2006 and since then I have not paid towards or admitted the debt.

 

In June 2012 a Statutory Notice was served on me personally, though I was asked for no id and no signature. I did not respond. This was served it appears (though records are fuzzy going back 6 years) just within the 6 year period of when I last paid/admitted the debt.

 

In September 2012 the petition was presented to the court which is outside of the 6 years.

 

The hearing date is in December.

 

National Debtline believe the 6 year limitation is from the date I last paid/admitted the debt to the date of the hearing which is outside of the 6 year period.

 

The date the petition was presented in September was outside of the 6 years.

 

But the date the statutory demand was personally served was within. So is the debt Statute Barred???

 

Interestingly the Petition itself was posted and served personally, but the Statutory Demand was only served personally, no letter.

[unclebulgaria67]

National debtline are correct. Suggest that you get hold of proof of the last date of payment from the original creditors and then write to Lowells Head of Legal, asking them to withdraw the petition or you will appoint solicitors and go after them for costs.

[42man]

I presume you are fighting the petition ? are you ok on this ?

[KVF]

I'm hoping to fight it. I can't afford to go bankrupt - too much to loose. I had issues going back to 2002 when the finance was taken out and after 4 years the finance company did nothing so I stopped paying when I felt I'd paid more than enough and wrote to them to tell them why I'd stopped paying.

 

Now 6 years on it's being pursued. The hearing is on the 4th December so I don't think there's the time to request any information. I've emailed (and filed a copy with the court) to the firm handling the petition 14 days ago stating it was statute barred and that they should provide proof of payment/acknowledgement of debt within the last 6 years within 7days - no reply. So 7 days ago I sent a further communication via fax (and filed a copy with the court) again stating that it's statute barred, they should cease harrassing me, withdraw the petition and write to me within 7 days to that effect. Again no reply.

 

I have a form 6.19 to complete and file and serve 7 days prior to the hearing which I've been told to write 'without prejudice I've advised the petitioner that the debt is statute barred and they haven't proved otherwise'. I've been told the onus is on them to prove otherwise. I have some letters from outside of 6 years ago from the original creditor which show the account has a missed payment - i.e. I stopped paying and the date they wrote to me about it.

 

It does worry me what might happen on the day though and I wonder if I can get them to withdraw the petition. Any advice much appreciated.

[42man]

Have you sent off a CCA request ?

[42man]

Don't forget to submit your costs too....

[KVF]

Have you sent off a CCA request ?

 

What's a CCA? And what costs would I be claiming and how?

[42man]

I suggest you spend some more time reading around these forums - did you see this thread ? - http://www.consumeractiongroup.co.uk/forum/showthread.php?327997-Statutory-Demand-from-Hamptons-Legal-WON-STAT-DEMAND-DISMISSED&highlight=hamptons

[42man]

The CCA request is here - http://www.consumeractiongroup.co.uk/forum/content.php?414-CCA-request-letter it only applies to credit cards / loans / hp credit - you need to send it recorded delivery with a £1 postal order. It goes to Lowells and they cannot avoid their durties under the Consumer Credit Act to provide this agreement, if they don't then the debt is unenforceable whilst in default.

[KVF]

The CCA request is here - CCA-request-letter it only applies to credit cards / loans / hp credit - you need to send it recorded delivery with a £1 postal order. It goes to Lowells and they cannot avoid their durties under the Consumer Credit Act to provide this agreement, if they don't then the debt is unenforceable whilst in default.

 

I already have a copy of the agreement, or is this simply a £1 gamble to see whether they can produce it or not within the timeframe?

[Old Cogger]

confusion??

[42man]

When did you receive the agreement ? have you had it since the account was opened ? how old is it ? did you get it as a result of a Subject Access Request ?

[42man]

The statute barred defence is a total one of course....

[KVF]

I have made no requests for info other than a letter to the legal people handling the petition asking them to provide proof that payment or acknowledgement was made in the last 6 years.

 

The copy I have is the original from 2002.

[sillygirl1]

DO NOT put 'Without Prejudice' on any attempt at communication/information/negotiation at this stage as you WILL NOT be able to use it in court.

 

That is a very very bad bit of advice - it benefits nobody and will not speed anything up.

 

You need to inform the court directly of the statute barred status and let them know an abuse of court processes is taking place.

[42man]

If it was me in your situation and being worried about the statute barred aspect then I would certainly send a CCA request....

[sillygirl1]

There wouldn't be much time to do this, as it has already got a court date for next week. The CPR rules should superceed a CCA reqest here, as well as a SAR request.

 

The last payment information needs to be obtained as quickly as possible so that you can show Lowells up for the Lowlifes that they are - choosing to misuse court in persuit of a debt they cannot legally collect on.

[KVF]

How would a CCA request stop any worried re statute barred? Or is it simply the hope they can't produce it in time?

The court date is 4th December so a little time but not the 40 days for the other info.

I have letters from the original creditor dated over 6 years ago showing the account in arrears when I ceased paying.

[42man]

As I said before your statute barred aspect should be strong enough. Did you read Consumer Credit Act 1974 this piece (bearing in mind that they have to produce it within 14 days) you would be surprised how many don't have agreements.

 

SECTION 78 (1) CONSUMER CREDIT ACT 1974

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

 

The Consumer Credit Act in section 78(6) States that

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement;

[42man]

It is from this thread - http://www.consumeractiongroup.co.uk/forum/showthread.php?309388-capquest-statutory-demand

[KVF]

Ok, so then I should leave it a little later so they have a clear 14 days but nothing extra prior to the hearing to produce this at which point that my defence along with being statute barred, or since I and they have to file any documents with the court and the other party 7 days prior to the hearing should I issue this request 14 days prior to that, i.e. in about a weeks time?

[42man]

It certainly can't do you any harm....you need to send the request with a £1 postal order and send it recorded.

[sillygirl1]

Those letters are proof it is statute barred and should form your defence, no point in doing any complicated one, just a simple

 

DEBT IS STATUTE BARRED - ABUSE OF PROCESSES

 

type defence should be more than sufficient.

[KVF]

Those letters are proof it is statute barred and should form your defence, no point in doing any complicated one, just a simple

 

DEBT IS STATUTE BARRED - ABUSE OF PROCESSES

 

type defence should be more than sufficient.

 

Lowells own the debt, but BW Legal are handling it - who should I send the request to?

[unclebulgaria67]

BW legal