Marlin/Restons Claimform - old Lloyd Loan 'debt' statute barred

[myotai]

I'm aware that this is a really old chestnut so I apologise in advance.

 

If the last payment in an unsecured loan was in June 2008. Then the account was closed by the bank in October 2008 (I had no and at all in the account being closed).

 

Can someone confirm that the Cause of Action was one month after the last payment and NOT when the account was closed?

 

Replies very much appreciated and any evidence or examples to prove the above would be fantastic.

 

M...

[BRIGADIER2JCS]

I'm aware that this is a really old chestnut so I apologise in advance.

 

If the last payment in an unsecured loan was in June 2008. Then the account was closed by the bank in October 2008 (I had no and at all in the account being closed).

 

Can someone confirm that the Cause of Action was one month after the last payment and NOT when the account was closed?

 

Replies very much appreciated and any evidence or examples to prove the above would be fantastic.

 

M...

 

 

 

Hi Welcome to CAG.

 

 

You are correct for unsecured loans and credit cards.

 

 

There have been some claims from DCAs that the Appeal Court decision in BMW Finance - v - Hart (re Hire Purchase Account) has effect on unsecured loans and credit card debts.

 

 

I believe this has failed and debt such as yours will SB from the last payment.

[myotai]

Thanks so much.

 

Could details of a loan agreement override Limitations Act. I don't have the agreement and neither does the DCA or they haven't produced it.

[BRIGADIER2JCS]

Thanks so much.

 

Could details of a loan agreement override Limitations Act. I don't have the agreement and neither does the DCA or they haven't produced it.

In my opinion NO the contract cannot change statute law.

[myotai]

Why would a DCA go as far as court action after supplying evidence themselves that show a debt is statute barred??? Could they pull out as I haven't caved in?

[citizenB]

It has been known on many occasion for the claimant to pull out at the very last moment.

[Peterbard]

I'm aware that this is a really old chestnut so I apologise in advance.

 

If the last payment in an unsecured loan was in June 2008. Then the account was closed by the bank in October 2008 (I had no and at all in the account being closed).

 

Can someone confirm that the Cause of Action was one month after the last payment and NOT when the account was closed?

 

Replies very much appreciated and any evidence or examples to prove the above would be fantastic.

 

M...

 

The cause of action would be when they were entitled to claim the money under the agreement. This has nothing ot do with BMW v hart.(which incidentally has not been overturned)

 

it may well be that they have let the account run until its natural termination and this would be the cause of action in any case it is unlikey to be after just one missed payment other than that it would be the date the account was closed I am afraid.

I presume this date was after the issuance of a default notice ?

 

In my opinion NO the contract cannot change statute law.

 

Which statute is that exactly ?

 

Unsecured credit debts

Unsecured credit debts are things like credit cards, store cards, personal loans and catalogues. When using the Limitation Act, these debts are often called ‘simple contract debts’.

 

https://www.nationaldebtline.org/EW/factsheets/Pages/25%20EW%20Time%20limits%20for%20recovering%20debts/Page-02.aspx

 

The Limitation Act says that the limitation period for simple contract debts is six years.

 

The cause of action (when the limitation period starts running) for simple contract debts, is usually when your agreement says the creditor is able to take court action because you have fallen behind with payments. This is normally after one or two missed payments. Sometimes, a debt will have no set repayment time. For these sorts of debts, working out the cause of action is more difficult. Contact us for advice.

[dx100uk]

have you actually sent the dca a CCA request?

 

 

tell us the story please

before this thread descends into the old silly battle from before on what is or not sb'd

 

 

dx

[Peterbard]

have you actually sent the dca a CCA request?

 

tell us the story please

before this thread descends into the old silly battle from before on what is or not sb'd

 

dx

 

I thought that the issue had been decided DX, in any case , the SB period has to start form when the creditor can first recover the money, this is down to the contract.

This is the best case scenario. It may be that the OP has a clause which would allow the creditor to enforce after one missed payment in which case he should be fine, but this would be unusual in my experience and certainly the CCA recommend that such agreements give at least the opportunity to remedy , they generally leave themselves time to send two section 86 notices and one default before they enforce. But as said we really need to look at the contract before making any rash statements.

 

Incidentally I do not think it is a silly battle. I understand that this particular issue was fully understood by the site team.

 

Just because one poster does not seem to want to accept or understand the facts of the matter and continues to spread mis-information, there seems to be an attitude of, oh well let him get on with it, can't be bothered.

 

Sorry i can.

[myotai]

I don't have the original contract and it's not been produced in the last 6 years.

 

They (DCA) sent a list of statements that shows my last payment was over six years ago.

 

They (bank) closed the account in Oct 2008. This is what the DCA are stating is the cause of action.

 

I have been told by every single person I have spoken to about this that they're wrong and the cause of action remains one month after my last payment (the payment was an arrangement with the bank too, it was a reduced payment).

 

I also have been told that the contract cannot alter the law (Statue Law) and change when a cause of action started.

 

I wish someone would just tell me definitively where I stand.

[Peterbard]

Well no , as you can see national debtline do nt tell you this, nor do any other of the advice agencies.

 

It may not be what you want to hear but they may well be right. It depends on the contract.

 

If they have not closed the account it may be that they were not entitled too until there were a certain amount of arrears and only at this point would they be able to commence proceedings, the statute you refer to defines the cause of action in a case of contract as when the creditor can commence proceedings, not when a payment is missed, this is a common misconception. There is lots and lots of case law which confirms this fact.

 

This is not to say that you still cannot argue SB, and once you say that the agreement is, it is up to them to prove that it is not, the burden of proof is reversed, but it is best to beware oi the correct legal situation.

[myotai]

I disagree. If what you say is true why would a creditor ever make themselves responsible for starting a cause of action. In my case what you're saying is that by closing the account the bank started the cause of action. That was foolish of them then. Why would they do that and put a time limit in their case???

 

The National Debtline clearly state that the Cause of action is from when the credit or can claim back the money. One month after a missed payment. Again if what you say is right then the cause of action would have started about 10 years ago when I first came to an agreement with them.

 

I also have a solicitors letter categorically stating that my case is extremely strong.

 

The DCA have produced nothing at all ever to substantiate their claim. Nothing.

[Peterbard]

I disagree. If what you say is true why would a creditor ever make themselves responsible for starting a cause of action. In my case what you're saying is that by closing the account the bank started the cause of action. That was foolish of them then. Why would they do that and put a time limit in their case???

 

The National Debtline clearly state that the Cause of action is from when the credit or can claim back the money. One month after a missed payment. Again if what you say is right then the cause of action would have started about 10 years ago when I first came to an agreement with them.

 

Then I hope for your sake you are correct however it i not what the law says, nor incidentally what NDL do. I could post all the evidence for you. but it has already been posted on here many times, i suggest you look it up and and understand the situation.

[myotai]

Huh?? It's not what I am stating. It's what the solicitor states. The Limitations Act and everyone else apart from you have stated.

 

Can you back up your contentions? Otherwise I'll go with what everyone else is stating.

[Peterbard]

Huh?? It's not what I am stating. It's what the solicitor states. The Limitations Act and everyone else apart from you have stated.

 

Can you back up your contentions? Otherwise I'll go with what everyone else is stating.

 

I doubt that a qualified solicitor would give you such incorrect information, although it is not impossible. not sure what you mean about "backing up", the national debt-line piece is a simple explanation of the situation. i am afraid if you want a more detailed explanation you sill have to look up the other threads as stated.

 

You will always get people to tell you what you want to hear of course.

[myotai]

Not sure why you think I want to hear anything other than the facts.

 

You said: CCA recommend that such agreements give at least the opportunity to remedy , they generally leave themselves time to send two section 86 notices and one default before they enforce.

 

When they decide to enforce is up to them are you suggesting this changes the law?

 

Anyway, as you say others have taken the time to offer advice in here. I was under the impression that this was a forum for discussion and not a database of statements to be searched.

 

For the record I have just spoken to the National Debtline and the concur with my stance.

 

Effectively it's like this. The speed limit is 30mph. That's the law. Just because the contract for my new car states in the first month I can go as fast as I like doesn't mean this changes the law.

 

Cause of action starts from one or two months after the last payment.

 

Can anyone at all in here demonstrate anything at all ever that contradicts this?

[citizenB]

IMHO, if you are going to claim statute barred then you need to think carefully about the following.

 

1. When was the last payment made to the account ?

 

2. You can start calculating from the time the first payment becomes due and is missed.. so the month following the last payment.

 

3. At that point, the creditor CAN start the process to recover any arrears.

 

4. Issue a default notice giving the statutory 14 days to remedy. The Statutory Notice (Default Notice) makes it quite clear that if the breach isn't remedied, then they are entitled to take further recovery action.. report to the credit agencies - issue a termination notice and issue court proceedings. Sell on to a 3rd party.

 

5. Just because they DONT take that action is irrelevenant IMHO, they CAN - the regulations, law, etc permits them to.

 

So take the last payment made add at least 2-3 months for all of the above to occur. From that point if you claim statute barred, then it is up to the claimant to prove otherwise.

 

You cannot start the SB clock from the last payment made - it has to start from the first payment MISSED.

[myotai]

Thanks,

 

Where does the Limitations Act mention adding 2 or 3 months after the last payment? If it does is it 2 or 3 months?

[citizenB]

Please read my post.. I said.. IMHO add 2 or 3 months. I then went on to explain my reasoning.

[myotai]

So why on earth would a creditor do that? It sets a clock ticking limiting the amount of time they can retrieve the debt. Why not 6 months or two years.

 

Also I need to know where the Limitations Act states this. Otherwise it's merely conjecture and opinion. I might as well say IMHO add two weeks?

 

Sorry to sound facetious but you get my gist?

 

I need facts here.....are there any? Has anyone ever discovered a definitive answer to when a cause of action starts?

 

The Limitation Act seems to be clear. It's one month after a missed payment.

 

Am I really missing something here?

 

Also why has the DCA in question taken nearly 9 months from the initial letter to take me to court?

 

Why not just produce the evidence and be done with it.

 

Massively confusing and contradictory information

[Peterbard]

well you could start with this , incidentally there is a national debt-line adviser on here and I know for a fact that he does not "agree with your stance "

 

http://www.bailii.org/ew/cases/EWCA/Civ/2009/75.html

 

http://www.inhouselawyer.co.uk/index.php/contract/7297-implications-of-contractual-termination-clauses-on-common-law-rights

 

CONCLUSION


 

This case confirms that the starting position is that a contractual termination clause, however detailed, will not exclude an innocent party’s common law right to treat a contract as discharged and seek damages, following a sufficiently serious breach. Typically, the circumstances in which termination is permitted under the contract will be regarded as events that the parties have decided correspond with breaches that the common law would recognise as giving rise to similar rights.


 

OK a long winded reason why a contractual termination clause is needed to end a contract and thus permit the creditor to be able to demand early repayment, not just a missed payment.

 

When you have read and digested this, we can talk and perhaps I will give you some more confirmation

[myotai]

Well the advisor needs to talk to the other advisor then.....?

 

More confusion!

 

Just reading now, thanks...

 

So they have to close an account to demand payment. That's ridiculous. That means nobody ever has to pay bank charges, overdraft fees whilst an account is open...Ad infinitum!

 

So despite the fact I disagree what can we talk about as this all makes the Limitation Act a farce!

[BRIGADIER2JCS]

So why on earth would a creditor do that? It sets a clock ticking limiting the amount of time they can retrieve the debt. Why not 6 months or two years.

 

Also I need to know where the Limitations Act states this. Otherwise it's merely conjecture and opinion. I might as well say IMHO add two weeks?

 

Sorry to sound facetious but you get my gist?

 

I need facts here.....are there any? Has anyone ever discovered a definitive answer to when a cause of action starts?

 

The Limitation Act seems to be clear. It's one month after a missed payment.

 

Am I really missing something here?

Citizen Bs advice is all you need the rest is of no use to your case.

Just because " certain user" wants to complicate matter and disagree with all else does not make that user right.

[myotai]

It does seem to be contradicting everything and everyone. Motives?

[Peterbard]

No the limitation act is quite clear, it just does not function in exactly the way you think it does.

More reading here

Reeves V Butcher Coburn V Colledge [1897] 1 QB 702

 

or

 

Royal Borough of Kensington and Chelsea v Khan [2002] EWCA Civ 279

 

or

 

West Bromwich Building Socierty V Wilkinson.

 

or

 

Congregation Union Inc v Harriss and Harriss [1988] 1 ALL ER

 

Basically the creditor has to have six years in which he can enforce, thjs is what the act says, so he has to be able to take proceedings, if a contractual entitlement prevents him from doing so the period cannot start, it is not a matter of him choosing to delay the start of the SB period, all this is conjecture in your case because we have not seen your agreement, but it is not as cut and dried as some would have you believe and that is what we are trying to tell you , so that you are aware.