Cause of action/statute barred

[sequenci]

Dodge, print it up?

I have it in PDF on my PC

 

 

Sequenci I would say thanks but I am still confused. As you say it does seem to be polarising opinion but if I read you correctly the one thing we can be sure of is that it is not the time of the last regular contractual payment?

 

Where abouts within the guidance is it matey? (sorry, multitasking today)

[BRIGADIER2JCS]

If there was any mileage in this every DCA would be rejecting the normal stance on this matter simple fact is they are Not doing so, nor are the courts.

[Peterbard]

If there was any mileage in this every DCA would be rejecting the normal stance on this matter simple fact is they are Not doing so, nor are the courts.

 

Difficult for a DCA to contest the termination of an agreement since they would not have been able to purchase it in the first place had it not been.

[Peterbard]

That's not usually the case when it comes to the initial cause of action. Think about it. If you have a credit card and have been paying on time each month. The creditor cannot sue you the minute you miss the first payment - there needs to be a cotractual breach first - and this is usually governed by the terms of the contract.

 

Once the cause of action starts if payments are made the 6 years will be reset by every payment (provided there hasn't been a six year gap of course).

 

Yes and of course even a contractual breach would only entitle the creditor to reclaim arrears, for all sums due under the contract the breach would have to be repudiatory, and in the case of a regulated agreement preceded by a DN.

[fletch70]

That's not usually the case when it comes to the initial cause of action. Think about it. If you have a credit card and have been paying on time each month. The creditor cannot sue you the minute you miss the first payment - there needs to be a cotractual breach first - and this is usually governed by the terms of the contract.

 

Once the cause of action starts if payments are made the 6 years will be reset by every payment (provided there hasn't been a six year gap of course).

 

Sequenci that has been my thought all along . At the very minimum any cause of action would have to be the date of the first missed payment or more likely the 2nd or 3rd. The NDL fact sheet does say usually 1 or 2 missed payments

 

Where abouts within the guidance is it matey? (sorry, multitasking today)

 

The only reference I can find is in annex B . I was asking Dodge if he could tell me where abouts there was anything else

[fletch70]

If there was any mileage in this every DCA would be rejecting the normal stance on this matter simple fact is they are Not doing so, nor are the courts.

 

I have seen a couple of posts here and OTR in the last few days where the DCA has claimed it is the date of default and not last payment.

Apart from that is there any references to defending on SB grounds for 6 years after last contractual payment.

[Peterbard]

It depends on when the creditor considers the account to be in default, and takes steps to terminate the account, there can be no set time, it would depend on the creditor and the agreement.

 

I think there is mention in the OFT debt collection guidance.

[Peterbard]

Yes it is page 59 B3

 

It states that there are two conditions first that a" relevant claim" must not have been made and second that there had been no acknowledgment, not just that there must have been no acknowledgment

[ims21]

Yes it is page 59 B3

 

It states that there are two conditions first that a" relevant claim" must not have been made and second that there had been no acknowledgment, not just that there must have been no acknowledgment

 

Here you go...this is the document

 

http://www.oft.gov.uk/shared_oft/consultations/OFT664Rev_Debt_collection_g1.pdf

[sequenci]

Yes it is page 59 B3

 

It states that there are two conditions first that a" relevant claim" must not have been made and second that there had been no acknowledgment, not just that there must have been no acknowledgment

 

Isn't B3 for Scotland?

[fletch70]

I thought B3 was for Scotland, misleading or what.

 

However the relevant claim means there must have been no CCJ and no acknowledgement. Non of it is really very clear IMHO

[Peterbard]

I think b4 refers to the position in Scotland although you are right it is written badly.

[Peterbard]

I thought B3 was for Scotland, misleading or what.

 

However the relevant claim means there must have been no CCJ and no acknowledgement. Non of it is really very clear IMHO

 

The term relevant claim is explained in b.6 and refers to an action bring raised in court, it says simply sending a default notice is not enough. This would certainly infer that the agreement must be terminated as no action could be commenced otherwise.

[Peterbard]

Just looking at this section of the OFT guidance, it is being widely misquoted on here as saying that there must be a relevant claim OR acknowledgment, which is not what the section says, it says AND, in other words both criteria must apply, not either an acknowledgment or relevant claim but the relevant claim AND no acknowledgment.

[ims21]

Just looking at this section of the OFT guidance, it is being widely misquoted on here as saying that there must be a relevant claim OR acknowledgment, which is not what the section says, it says AND, in other words both criteria must apply, not either an acknowledgment or relevant claim but the relevant claim AND no acknowledgment.

 

On this specific part, I am not sure that there is mis-quoting going on.

 

I can't find a thread where it is said "a claim or acknowledgement"

 

It is clear that if no claim has been raised by the creditor and the debtor has not acknowledged in the relevant period then SB is valid.

 

What is stated on many threads is "a payment or an acknowledgement" in the relevant period which does agree with the OFT guidance.

 

What is being discussed on this thread is the start date of the relevant period.

[fletch70]

Dodge I think you have misread. My interpretation is that so long as the creditor has made no court claim and no payment or acknowledgement has been made.

 

As IMS says , what I started the thread for was to discuss at what point the SB clock starts ticking

[Peterbard]

On this specific part, I am not sure that there is mis-quoting going on.

 

I can't find a thread where it is said "a claim or acknowledgement"

 

It is clear that if no claim has been raised by the creditor and the debtor has not acknowledged in the relevant period then SB is valid.

 

What is stated on many threads is "a payment or an acknowledgement" in the relevant period which does agree with the OFT guidance.

 

What is being discussed on this thread is the start date of the relevant period.[/QUOT]

 

Post 11

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?411273-1st-Credit

[Peterbard]

Dodge I think you have misread. My interpretation is that so long as the creditor has made no court claim and no payment or acknowledgement has been made.

 

As IMS says , what I started the thread for was to discuss at what point the SB clock starts ticking

 

Not really the start point of the SB period is when the creditor was entitled to pursue the debt, this is what is alluded to in the first part of the OFT guidance.

 

It is correct that once a CCJ has been issued the SOL does not apply of course.

[ims21]

 

Post 11

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?411273-1st-Credit

 

 

Sorry Dodge, I am really not trying to be difficult but I can't see in that post where it says "a claim or acknowledgement"?

 

This is the post....My Bold

 

Just to clarify :

 

It is accepted and OFT Guidance 2003/2006 updated November 2012 states SB No Relevant Contact or Relevant Acknowledgment e.g. Payment or Unequivocal Written Acknowledgment that Liability exists mad e in 6 years (5 in Scotland) This idea that a default is the cause of action is wrong cessation of payments is the cause of action, the default is the action taken.

 

This arises from a case involving a hire purchase agreement and is not relevant here.

 

The OFT has seen no reason to change its Guidance on this.

[Peterbard]

You copied it IMS relevent contact or relevant claim, this is at best only half the story as there is the question of the commencement of the SOL date, this does not occur when the payment is missed nor when there has been no relevent contact, this occurs when the creditor has a relevant claim.

 

It is widespread on here for people to just say that as long as there has been no contact or payment for six years that the account will be SB and it is just not the case.

As said before the SOL is in two parts the cause of action and the acknowledgment both must be satisfied in order that the account is SB it is not a question of either or.

[fletch70]

I think it is established that it starts with the cause of action which is the first point a creditor could issue proceedings.

 

The question is..how soon after missing a payment is that

 

In theory a creditor could issue a DN the day after the payment was due so

Due date 30th Nov

DN issued 1st Dec

Remedy date 17th (if posted 1st class)

Termination 18th

 

So do we mean that the cause of action is 18th? or do we have to wait until they do issue the DN?

[ims21]

You copied it IMS relevent contact or relevant claim, this is at best only half the story as there is the question of the commencement of the SOL date, this does not occur when the payment is missed nor when there has been no relevent contact, this occurs when the creditor has a relevant claim.

 

It is widespread on here for people to just say that as long as there has been no contact or payment for six years that the account will be SB and it is just not the case.

As said before the SOL is in two parts the cause of action and the acknowledgment both must be satisfied in order that the account is SB it is not a question of either or.

 

 

Yes I am not talking about the SOL bit at the moment as I think that sequenci has covered that.

 

What I was concerned about was the bit about claim and acknowledgement.

 

Unless my eyes are deceiving me or I am going mad, I cannot see the word "claim" mentioned in the above quoted post anywhere.

[Peterbard]

Yes I am not talking about the SOL bit at the moment as I think that sequenci has covered that.

 

What I was concerned about was the bit about claim and acknowledgement.

 

Unless my eyes are deceiving me or I am going mad, I cannot see the word "claim" mentioned in the above quoted post anywhere.

 

I am glad you agree with Sequency because we are in accord on this . Anyway

 

Ok it says relevant contact, which means acknowledgment unless you can think of any other meaning of it, so Brigadear is saying acknowledgement or acknowledgment, which is misquoting the guidance as well as being nonsense

[ims21]

I am glad you agree with Sequency because we are in accord on this .

 

I think we are getting there

 

Ok it says relevant contact, which means acknowledgment unless you can think of any other meaning of it, so Brigadear is saying acknowledgement or acknowledgment, which is misquoting the guidance as well as being nonsense

 

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.

[sequenci]

Well, a court claim is the action. It's the whole thing that the limitation act is about. s38 has your interpretations:

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