Cause of action/statute barred

[BRIGADIER2JCS]

'Includes Court action agreed, but that is a 'relevant' contact'.

Normal debt collection activity and demands for payment do not constitute relevant contact.

It is not what the LA is all about.

IMS is correct.

LA starts from the actual cause and is the cessation of payments, a default is the action.

[BRIGADIER2JCS]

See new-me post Cabot accept statute barred today!

[sequenci]

'LA starts from the actual cause and is the cessation of payments, a default is the action.

 

Not initially. Action wouldn't be able to be brought the moment a payment is missed initially. For CCA regulated agreements there are statutory and potentially contractual formalities that would hinder that idea.

[Peterbard]

Not initially. Action wouldn't be able to be brought the moment a payment is missed initially. For CCA regulated agreements there are statutory and potentially contractual formalities that would hinder that idea.

 

Indeed and even on unregulated agreements the contract would first need to be terminated.

[Peterbard]

I think we are getting there

 

 

 

I think it still stands that an unequivocal acknowledgement of a debt within the relevant period from the debtor will reset the clock. A SAR, for example, is not an acknowledgement. In my view, relevant contact from the creditor's side is a court claim and not a letter or phone call from their side.

 

The relevant contact is the COA it is the point where the creditor can commence his claim, this is not an acknowledgment, this is section 5 of the act.

 

The acknowledgment is covered by section 29 and as you say has to be either an explicit admission of the debt or a payment, incidentally there is some case law which suggests that the acknowledgment can only be a promise to repay, and in fact the payment is just an extension of the covenant to repay the debtT

[sequenci]

The relevant contact is the COA it is the point where the creditor can commence his claim, this is not an acknowledgment, this is section 5 of the act.

 

The acknowledgment is covered by section 29 and as you say has to be either an explicit admission of the debt or a payment, incidentally there is some case law which suggests that the acknowledgment can only be a promise to repay, and in fact the payment is just an extension of the covenant to repay the debtT

 

s29(5) - makes clear it needs to be a 'payment in respect of the debt' - as such infromation requests and suchlike wouldn't be a payment in respect of the debt, more a statutory payment for the provision of information.

[fletch70]

See new-me post Cabot accept statute barred today!

Good news but doesn't really add to this thread as it says nothing about COA

[fletch70]

Ok so i am a bit list now

we all agree that either payment or written acknowledgement rests the SB clock. We also agree that a court claim would stop the click even if it was issued with in day to go.

 

Are we still in discussion as to what action starts the click ticking

[ims21]

The relevant contact is the COA it is the point where the creditor can commence his claim, this is not an acknowledgment, this is section 5 of the act.

 

 

Yes I can see that which is why "Relevant Contact" resets the clock.

 

Acknowledgement comes form the debtor's side but in terms of "Relevant Contact" from the creditor's side, what constitutes "Relevant Contact" other than a court claim or perhaps the TN? Are there any other definitions of "Relevant Contact" from the creditor's side?

[fletch70]

I was once told that the annual statement you tend to get was relevant contact but i have tended to dismiss that idea. Hopefully not wishful thinking.

I am sure that i read somewhere today that court action is the only relevant contact.

[ims21]

I was once told that the annual statement you tend to get was relevant contact but i have tended to dismiss that idea. Hopefully not wishful thinking.

I am sure that i read somewhere today that court action is the only relevant contact.

 

Yes I don't think that an annual statement can be classed as relevant contact. DCA's can knock those up willy nilly.

Edited December 2, 2013 by ims21

[sequenci]

The only thing you need to be concerned over is

a) the point that the clock start ticking; and

b) the point that a claim is brought

 

There isn't anything that a creditor can do between those two points to amend the running of time.

[Peterbard]

The only thing you need to be concerned over is

a) the point that the clock start ticking; and

b) the point that a claim is brought

 

There isn't anything that a creditor can do between those two points to amend the running of time.

 

The creditor has six years between a and b to make his claim.

 

point (a) is determined by when the creditor is entitled to commence proceedings for breach.(cause of action section 5)

 

point (b) is the latest that proceedings can be actually brought.

 

A debtor can restart the six year period by making payments or acknowledging the debt at any point between a and b.(acknowledgment section 29)

 

Looking at it logically.

Someone takes out a loan and misses payments, so you would think that the creditor would have six years to take him to court.

However he cannot take the debtor to court straight away because contract law says that the agreement must be terminated first.

 

This is why the COA has to run from when the creditor is able to make the claim rather than at the point of breach.

Edited December 3, 2013 by Dodgeball
Took out the confusing bits

[BRIGADIER2JCS]

Not so relevant contact = issue of claim or statutory demand i.e., legal action.#

 

Normal 'debt collection' letters' asking for payment, 'demands' for payment (other than SDs) such as final demand etc., SARs CCA requests, statements are not relevant contact from a creditor or DCA.

A payment and or written (unequivocal) admission that a liability subsists are relevant contact by a debtor.

 

Action must not always be interpreted as Court Action.

ICO Guidance that defaults must should be placed within 6 months I believe supports this.

 

 

 

I will stick with what works for those that I help.

 

I will leave you all to argue, and continue to help people to br rid of Statute Barred debt.

 

Unsuscribing.

[sequenci]

point (a) is determined by when the creditor is entitled to commence proceedings for breach.(cause of action section 5)

 

Remember that there are different things where the statute of limitations applies, s5 is just for one area allbeit the area we see here on CAG the most (simple contracts).

[sequenci]

Action must not always be interpreted as Court Action.

 

Do you know something the Limitation Act itself doesn't?

 

http://www.legislation.gov.uk/ukpga/1980/58/section/38

 

38 Interpretation.

 

(1)In this Act, unless the context otherwise requires—

“action” includes any proceeding in a court of law, including an ecclesiastical court;

 

Action means legal action.

[Peterbard]

Remember that there are different things where the statute of limitations applies, s5 is just for one area allbeit the area we see here on CAG the most (simple contracts).

 

Yes of course such as action on tort, which is far simpler because the COA is usually contingent with the tort.

 

The point is that the creditor must be given 6 years to make a claim, if he cannot claim because of the way contract law works then the COA must commence when he can claim, which would be after the termination of the contract, otherwise he would not get his 6 years.

 

As far as advising people that they can regard an account as statute barred before it actually is; I dare say in most cases it does no real harm, it is always for the creditor to prove whether the account is or isn't enforceable, however on occasion there will be a debtor who acknowledges a debt prematurely and alerts the creditor to his situation, when perhaps another 3 months of keeping his head down would have seen him truly SB.

[sequenci]

I agree on both counts

[fletch70]

As far as advising people that they can regard an account as statute barred before it actually is; I dare say in most cases it does no real harm, it is always for the creditor to prove whether the account is or isn't enforceable, however on occasion there will be a debtor who acknowledges a debt prematurely and alerts the creditor to his situation, when perhaps another 3 months of keeping his head down would have seen him truly SB.

 

Thanks everyone , I am still not sure what the answer to the original question is and I guess it will vary from case to case. Having said that IMHO it is all about accuracy and not shooting yourself in the foot.

[sequenci]

It will do. The best way to think about the starting of time is as follows:

 

- The time will start to run from the point in which the creditor can sue for the full amount outstanding of the debt.

[Peterbard]

It will do. The best way to think about the starting of time is as follows:

 

- The time will start to run from the point in which the creditor can sue for the full amount outstanding of the debt.

 

Yes absolutely.

[fletch70]

Thank you all. I freely admit that there are times I need absolutes and alas this is not a situation you can give an absolute assurance on (i.e the COA varies) . Maybe by tomorrow or next week I will be a little less worried about it but no doubt it will raise it's ugly head again .

 

I suppose it would help if I fully understood exactly what a COA was and how it was determined. I also hate the thought of anyone been given an incorrect date for when the SB occurs .

 

Thanks again

[Peterbard]

Thank you all. I freely admit that there are times I need absolutes and alas this is not a situation you can give an absolute assurance on (i.e the COA varies) . Maybe by tomorrow or next week I will be a little less worried about it but no doubt it will raise it's ugly head again .

 

I suppose it would help if I fully understood exactly what a COA was and how it was determined. I also hate the thought of anyone been given an incorrect date for when the SB occurs .

 

Thanks again

 

As far as I can see the answers given by Sequency and I are an absolute, the COA simply starts when the creditor is able to reclaim full payment of the debt.

 

The explanations are contained within this thread in either of the former mentioned' s posts.

 

Perhaps if you could say exactly what it is that you are struggling to understand.

[fletch70]

Dodge

Thanks i totally get the date starts from when the creditor could first claim full payment.

 

What I struggle with is this

 

Is this the theoretical minimum time i.e assuming a DN is issued at the first available opportunity and the the termination and formal demand are issued on expiration of the DN and if this is the case how soon can the DN be issued- is it after 1 missed payment

 

Is there something less technical that can trigger a demand for full payment

 

Is it the actual time when they could issue a claim, for example after the DN is issued and the termination takes place, which could be several months after the initial missed payment

 

The above situations are based on an unsecured credit agreement regulated by the CCA that require monthly payments such as a loan or credit card

 

Is the cause a different time to the action if you see what i mean...is the first missed payment the cause that leads to the action. You probably want to smash my head against the wall at this point , I hope you can bear with me

[Peterbard]

Dodge

Thanks i totally get the date starts from when the creditor could first claim full payment.

 

What I struggle with is this

 

Is this the theoretical minimum time i.e assuming a DN is issued at the first available opportunity and the the termination and formal demand are issued on expiration of the DN and if this is the case how soon can the DN be issued- is it after 1 missed payment

 

Is there something less technical that can trigger a demand for full payment

 

Is it the actual time when they could issue a claim, for example after the DN is issued and the termination takes place, which could be several months after the initial missed payment

 

The above situations are based on an unsecured credit agreement regulated by the CCA that require monthly payments such as a loan or credit card

 

Is the cause a different time to the action if you see what i mean...is the first missed payment the cause that leads to the action. You probably want to smash my head against the wall at this point , I hope you can bear with me

 

Then what you are asking is how soon after a missed payment can a creditor issue a default notice on a regulated agreement.

 

CCA recommends that two notices of arrears are sent following two missed payments and then a default notice, however there is no sanction that I m aware of for sending one earlier.

 

Whatever the time difference between the missed payment and the issuance of the DN/termination of agreement the coa will still be after this process on a regulated agreement because prior to this the creditor is prohibited from taking action.

 

As said earlier the creditor must have six years in which to take action, if the period were to start on the first missed payment he could not, because the CCA prevents him, so if it waas say two months untill he could terminate the agreement he would only have 5 yers and ten months. Read BMw vs hart, yes I know it is unregulated, but the procedure is the same.