Help:Taken DCA to Court for registering Default with CRA,debt is sb'd

[Guest mahdi]

Hi Folks,

 

A newbiehere, please bear with me.

I have taken a DCA to Court whom had been harassingme for years for a debt that didn’t exist and furthermore the debt should havebeen statute barred as the last acknowledgement was in January 2006 guaranteed.

The casehad been transferred to my local court on 16th Aug.

I stated in the claim form NI: debt is statutebarred under s5 limitation act, DCA breached DPA under s10&a12, Harassmentand DCA registering an illegal DN.

 

They filed a defence in court stating: I breachedcredit agreement by not paying up and a Default Notice was served 20 monthsafter I had breached the agreement. They also state Assignment and terminationnotice were also served.

They are lying 100%. Never received alleged DN andAssignment notice or termination notice.

 

Now,forgive me if I am wrong, I understand DN are normally served within six monthsof missing payments as per ICO rules, isthis correct ?if so how could they allege otherwise ?

 

1) As proceedings have now commenced andcase been sent to my local court,

 

how would I go about getting acopy of the documents they had referred to in their Particular of Defence i.e Default notice, Assigment Notice andTermination Notice before hearing date ?

 

2) Will there be a standard disclosure process beforehearing date in which they will be forced to disclose these mentioned documents

 

3) Shall I file cpr 31.14 / remember proceedings areat local court but no date set yet

 

4) Will I have to bear the cost tothe documents they mentioned in the Particular of defence?

 

Please help as soon as my local court will shortlyassign a date for the hearing.

I suspect they may not disclose as it might getthem into more trouble with OFT, ICO and TS for allegedly filling DefaultNotices 20 months after debt becoming due or for lying by keep changing the default date.

 

Lastly old credit report which I had lost showeddifferent default date but I can’t prove it now as it was lost.

I would appreciate any assistance from anyoneplease.

[BRIGADIER2JCS]

Hi.

1. DNs are not archived, a note is made on a debtors record that a DN was sent on a specific date, the creditor/DCA can rely on that. Much the same applies to an NOA.

 

The ICO Guidance on Defaults is that 'defaults SHOULD NORMALLY BE PLACED WITHIN 6 MONTHS OF THE CAUSE OF ACTION.

 

Stat Barred = 6 clear years no payments or written acknowledgment of the debt.

 

There has been a case in which BMW Finance won a judgement that the limitation period does not start until the creditor can claim repayment in full i.e. the default date, this was in regard to an HP agreement.

 

I have not yet seen this argued again!

[Guest mahdi]

Thanks BRIGADIER2JCS

 

The reason I asked about the DN as I know they are lying about it as they have changed the default date illegally to keep the debt not being statute barred.

 

Will they have to produce it in court though ?

 

Is cpr 31.14 any good now ?

[renegadeimp]

Your defense would be the debt is statute barred. That is an absolute defence.

[panther12]

Isn't it SB 6 years from the date they had the right to call in the debt regardless of when the DN is issued. So for e.g, if the terms say non payment will result in a DN been issued and if not rectified within 4 weeks then all monies outstanding will be due. Then I believe the SB clock starts from the moment that 4 week period ends regardless of when they decide to issue a DN.

[renegadeimp]

SB is from the last payment/written acknowledgement towards the debt. lets not get into stuff that doesnt really have any bearing to this posters issue.

[panther12]

With respect I think SB date does have a bearing. The OP is the claimant in this matter so burden of proof will be on him to prove. Having a keen interest in SB (helping a friend who is close to reaching SB) it is my understanding that limitation period starts from the cause of action - i.e, when the agreement says the creditor is able to take court action, which is not necessarily 6 clear years from last payment/acknowledgment.

[sillygirl1]

The cause of action is the day after the missed payment was due. It is not what the agreement says, as many agreements have been proved to be poorly written.

 

You are trying to split hairs here and could cause a lot of people prolonged misery if your argument if you succeed (and many judges may completely ignore that line of reasoning).

 

Its been discussed to death on this forum and the basis is (regardless of what the default date is) that the day after the payment was due is the day the statute barring starts.

[panther12]

The cause of action is the day after the missed payment was due. It is not what the agreement says, as many agreements have been proved to be poorly written.

 

You are trying to split hairs here and could cause a lot of people prolonged misery if your argument if you succeed (and many judges may completely ignore that line of reasoning).

 

Its been discussed to death on this forum and the basis is (regardless of what the default date is) that the day after the payment was due is the day the statute barring starts.

Ok I appologise, I'm not trying to split hairs and the last thing I want is to cause prolong missery to anyone so will leave it at that.

[sillygirl1]

Thanks for the apology.....

 

A lot of this was done a while ago with the Rankine debacle (the couple who started the dodgy default arguments and set up lots of claims firms) and the law is quite clear on it.

 

There was a recent mortgage shortfall case which decided the shortfall started the day after the repayment which caused the company to take the people to court was missed, which was some 18 months or so earlier than the mortgage company were claiming. Can't remember offhand what thread it was on but it was on here.

 

There is possibly a stronger line of reasoning you could use, if you want to put the link to your thread here I will have a look sometime today.

[BRIGADIER2JCS]

The Cause of action cannot be the default, the default is the result of the cause of action i.e. the missed payment (s), causing the creditor to default the account.

[sillygirl1]

Thanks for clearing that up so clearly Brig.

[panther12]

Thanks for the apology.....

 

A lot of this was done a while ago with the Rankine debacle (the couple who started the dodgy default arguments and set up lots of claims firms) and the law is quite clear on it.

 

There was a recent mortgage shortfall case which decided the shortfall started the day after the repayment which caused the company to take the people to court was missed, which was some 18 months or so earlier than the mortgage company were claiming. Can't remember offhand what thread it was on but it was on here.

 

There is possibly a stronger line of reasoning you could use, if you want to put the link to your thread here I will have a look sometime today.

For the OP's case he shouldn't have anything to worry about as it's 20 months over so well & truly SB. The otherside would look very silly if they try to argue that it's not SB because they issued a DN dated some 20 months later. I think the point that I would make is that anyone reaching SB it's probably best to err on the side of caution and delay firing off a SB letter and giving the creditor a heads-up until it's past the stage of them arguing otherwise - I'd leave it 6 years and a couple of missed payments to be on the safe side of any counter-argument.

 

I've not got a dedicated thread going, there's still a couple of years to go on the friends debts until SB. I took a "take the p***" approach when dealing with the friends debts which seems to be working as it's all gone very quiet with the creditors. I've got a citi thread where I reversed the tables and issued a claim against them & won, another good one was moorcroft where they accepted a £5 F&F cheque which they cashed in error but was a binding agreement - they've brushed that under the carpet and never heard another word from them lol.

[Guest mahdi]

Cheers folks for all if your contributions, much appreciated.