Lowell/Carter claimform - Co-op loan - poss - Statute Barred?***Claim Discontinued***

[knet2020]

Date of claim:

27 May 2015

 

What is the claim for –

 

 

Claimants claim is for sum of 51xx being monies due from the defendant to the claimant

under an agreement regulated by the Consumer Credit Act 1974 between the defendant

and Coop under account ref xxxx/xxxxxx and assigned to the claimant on 08/01/2013

notice of which has been given to the defendant.

 

The defendant failed to make contractual repayment under the terms of the agreement

and a default notice has been issued which has not been complied with.

 

What is the value of the claim? £6k +

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? Loan account

When did you enter into the original agreement before or after 2007? Before 2007

Has the claim been issued by the original creditor

or was the account assigned and it is the Debt purchaser who has issued the claim. Debt purchaser (via solicitor)

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? Yes, don't remember receiving NOA but would assume this has been sent

Did you receive a Default Notice from the original creditor? Yes, dated 28 April 2009

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? Not that I am aware of

 

Why did you cease payments? Advised by Citizens advice, made an offer to pay non priority debts in Dec 2007

the offer was rejected by original claimant and no further payments made as I had priority debts to pay

 

What was the date of your last payment? Some time before Dec 2007 (at least 6 months before)

 

Was there a dispute with the original creditor that remains unresolved? As above really, the account had gone into arrears and despite making offers to pay it was rejected

Did you communicate any financial problems to the original credito

r and make any attempt to enter into a debt management plan? Yes, via CAB in Dec 2007

 

Acknowledgement of service was submitted on 02/06/2015 and I will send CPR 31.14 request today (see my next post below)

 

I wrote to Claimant on 16 April 2015 as letter arrived out of the blue using statute barred template, they responded on 24 April.

 

'Our clients position is that the limitation period runs from the date original creditor became entitled to demand payment. The account fell into default on 03 July 2009, therefore it is not statute barred and remains payable'

 

I have (as above) default notice issued via original creditor dated 28 April 2009 (with a date of 12 May 2009 arrears to be cleared) this letter makes mention of 'termination' which I would understand would be from 12 May 2009 but may this not be the case.

 

Is it the claimants argument that the date they mention above would be default notice + say 28/30 days then termination date plus 28/30 days? That is the only way I can get the dates to tally?

 

I have also letters from CAB showing an offer to pay arrears was made in Dec 2007

would argue that my account was probably in default at this time but I only have the above at the moment.

 

as I understand it this is going to hinge over a 4 month period (if the 2009 dates are used) but it seems this is statute barred, what are others thoughts.

 

This would be the basis of any defence which I hope to make.

 

Regards

Edited June 2, 2015 by knet2020
Fixes

[AndyOrch]

Many thanks for completing the above knet2020 ...however you have missed one vital point.......

 

The date of the claim ?

 

Regards

 

Andy

[knet2020]

Updated after some reading I consider that this is 99% likely to be statute barred but it would be nice to obtain another opinion.

[AndyOrch]

We will offer when we know the date of issue.

[knet2020]

We will offer when we know the date of issue.

Have now updated as requested, can anyone advise?

 

I have prepared a CPR request modified to ask for the default notice, copy of agreement and notice of assignment. This is ready to send.

 

I am concerned that as the claimant has given a specific date of 'cause of action' they are possibly in possession of a termination notice (on that date) or similar. I have not received this and as dates here are so tight I am looking for a clarification of the 'cause of action date' as I do not wish to defend on the basis of Statute barred if it is plainly not the case.

[AndyOrch]

I have (as above) default notice issued via original creditor dated 28 April 2009 (with a date of 12 May 2009 arrears to be cleared)

 

Date of claim:

 

27 May 2015.

 

Statute Barred.

[knet2020]

Thanks so much, this is what I thought.

 

I have found the relevant defence wording so as ever thanks to this site however upon reading the thread at http://www.consumeractiongroup.co.uk/forum/showthread.php?162456-Help-with-statute-barred-debt-county-court-claim-form&p=1743577&viewfull=1#post1743577 I note the POC states:

 

"The claimant also claims statutory interest at 8% pursuant to s.69...from the date of assignment of the agreement to date but limited to a maximum of 1 year and a maximum of £1000 amounting to £40x.xx"

 

This has been added to the amount claimed, so this appears to be interest however does this affect the statute barred (with reference to the above mentioned thread)

Edited June 2, 2015 by knet2020
Additional Info

[AndyOrch]

You cant add interest to a statute barred debt...just submit the statute barred defence.

 

Regards

 

Andy

[knet2020]

As ever thanks, is it worth doing the CPR letter or not?

[dx100uk]

there no real need as SB defence is absolute

 

 

wont hurt mind

CCA request too

don't sign anything.

use a blank £1PO

 

 

 

 

Here is the SB defence

just fill the 2 bits in and file it now

 

 

1. The Claimant's claim was issued on (insert date).

2. The Defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation act 1980.

3. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

 

4. The Claimant's claim to be entitled to payment of £x or any other sum, or relief of any kind is denied.

 

.dx

[knet2020]

As ever thanks to all on here who give their time freely it simply cannot be overstated how valuable it is.

 

 

I will take the action suggested and keep the thread informed of any updates.

 

 

As a side note it seems that 'ignorance of law' is what they are relying on,

 

 

I am in no doubt (maybe) that the court would not spot this and would simply rubber stamp the claim despite it being statute barred.

[dx100uk]

correct, no checks on anything are ever done if a speculative claim is not defended

[panther12]

 

As a side note it seems that 'ignorance of law' is what they are relying on,

 

 

I am in no doubt (maybe) that the court would not spot this and would simply rubber stamp the claim despite it being statute barred.

It's no concern to the court as a claimant is entitled to bring action for an old debt and is only defeated under the Limitation Act if the defendant actually brings up SB as their defence, otherwise it's not for the courts to do the defendants job.

[knet2020]

It's no concern to the court as a claimant is entitled to bring action for an old debt and is only defeated under the Limitation Act if the defendant actually brings up SB as their defence, otherwise it's not for the courts to do the defendants job.

 

That is a fair point

[knet2020]

I understand the claimant has 28 days to respond to the defence before allocation can proceed.

 

 

As this is likely to be allocated to the small claims track can make a CPR request in support of any proceedings that may take place?

 

 

I don't expect to recieve any responses to these requests however I would like to be able to say to a Judge that I asked for them (and possibly they were not supplied)

 

As I have used the SB defence

am I correct in believing that as the claimant mentions Default Notice, CCA agreement and assignment notice

they would be expected to produce those to the court and to me?

 

 

If not that is the reason I ask the question above.

[dx100uk]

SB defence is absolute

 

 

doesn't matter if they have the agreement etc etc

they have to prove it is not SB'd.

having the agreement means nowt to answering that question.

 

 

dx

[AndyOrch]

" As I have used the SB defence am I correct in believing that as the claimant mentions Default Notice, CCA agreement and assignment notice they would be expected to produce those to the court and to me? "

 

No ...because you are not putting them to proof within your defence.....this is why you only submit the Statute Barred defence if your 1000% positive it is.

 

Regards

 

Andy

[knet2020]

Well after some checking it seems that this will hinge on the 'Default Date' xx/July/2009 as entered on Credit Report.I have made a CCA request to the claimant today.

[knet2020]

Hi all,

Some updates:

 

- Noodle shows Default as xx/July/2009 (under LP details)

 

- 03 June received a notice from Court advising that defence has been received and they have 28 days to respond (33 in total) I calculated this to be 7th July

 

- Lowells have written regarding another SB debt (explicitly mentioned) offering a discount for payment (I have prepared a Debt not acknowledged letter it states the same original creditor) How/Should I respond to this?

 

- BC have today (22/06/15) sent a notice of intention to proceed, but before they advise Court wish to enter into 'negotiations' the court advises this

 

How to proceed? I entered a SB defence ONLY and not CCA or CB31 requests have been sent as I was advised the SB is absolute so the onus is on them. This is also a pre 2007 agreement.

 

Maybe nothing but most BC correspondence has been on yellow paper via Surrey, this is white paper via Huddersfield with a phone number eg more like a DCA letter.

 

So what if any are my next steps or do I simply wait?

[AndyOrch]

Do nothing......

[knet2020]

Do nothing......

 

Short, sweet. Thanks. That was my original thought.

 

Andy can you confirm if the dates in point 2 are correct (do I include w/ends)?

[knet2020]

In reply to my own post at #22 the time is 28 days + 3 for any who may be following along.

 

Well it arrived

 

N149A 'Notice of Allocation to the Small Claims Track' dated 30/06 so it was the very last days....

So will follow the advice listed in from http://www.consumeractiongroup.co.uk/forum/showthread.php?433973-BW-Lowell-claimform-old-CapitalOne-debt-***Claim-Discontinued***&p=4664689&viewfull=1#post4664689 as it's virtually identical to my situation.

 

Started by reading http://www.consumeractiongroup.co.uk/forum/showthread.php?433406-Alternative-Dispute-Resolution-%28Mediation.

 

I am worried this will somehow prejudice me

Guidance Note RE Mediation: http://www.consumeractiongroup.co.uk/forum/showthread.php?440009-Guidance-Note-Mediation

 

Will also start preparing a Witness Statement as that is likely to be required.

 

As ever thanks in advance, it seems the allocation questionnaire has been completed with:

 

TAKE NOTICE THAT

 

1: This is now a defended claim

The defendant has filed a defence, a copy of which is enclosed (Crossed out in pen)

The date for filing is mid July... Will send completed and recorded to court & copies of the same also recorded to the claimant?

Next step is to make contact with

 

HM Courts & Tribunals Small Claims Mediation

 

P: 01604 795511 E: scmenquiries at hmcts.gsi.gov.uk

[knet2020]

The following information is to enable others to find out what happens in the event they are in a similar position

 

Ok so I have contacted...

 

HM Courts & Tribunals Small Claims Mediation Service

 

Contact details are in the post 22 above

 

https://www.gov.uk/government/organisations/hm-courts-and-tribunals-service

 

In (N180) Allocation Questionnaire pack there is leaflet EX370

 

As you complete the (N180) Allocation Questionnaire you indicate on the form:

 

Do you agree to this case being referred to the Small Claims Mediation Service? Y

This explains what the process is and what you need to do however it is also worth noting the following details so you are aware of the time scales and procedures:

• ALL PARTIES have to AGREE to the mediation
  
• The Mediation service will try to arrange times/dates within 28 days
  
• It is NOT a group/conference call
  
• A mediator goes back & forth between parties for (up-to) 1 hour
  
• dates & times cannot be agreed in 28 days paperwork goes to District Judge
  
• District Judge will direct EITHER 2nd chance OR to court (directions)
  

The above is the process for the Mediation Service ONLY it is not comprehensive but gives you an idea.

 

It's worth reading CAG for other opinions & experiences and guidance notes

[knet2020]

Well,

After some time away I am back here with some updates and requests for assistance. A brief time line (since my last post follows):

 

- I made contact with HM Courts & Tribunals Small Claims Mediation Service

- Both Parties agreed to mediation

- Due to a pre-arranged holiday I was informed by Mediation Service case would be sent to local County court as 28 days is all that is allowed (they DONT have access to dates on Allocation Questionnaire)

- They advised it's common for most judges to refer it back for 2nd attempt

 

On 18 Aug received Notice of Hearing which is mid November, and contains a number of directions most of which are fairly understandable. However I would like to know:

 

- Copies of documents to be made available to all parties

- The court has said hearing will take approx 180 mins

- Part 27 of Civil Procedure Rules apply, so do I request documents

I entered a SB defence ONLY and not CCA or CB31 requests have been sent as I was advised the SB is absolute so the onus is on them. This is also a pre 2007 agreement

Can I get some assistance to help prepare a Witness Statement?

 

I know some threads/posts have some examples and I will search but I would like to be able to run it by forum members who are knowledgeable as I will be a litigant in person and need to have something that will be in the correct format.

 

I understand the claimant has to pay a further fee by mid October (which I suspect they will)

 

Have been rather perplexed as I thought the SB Defence would see the Judge at least requiring the claimant to provide something before proceeding to a hearing?

 

As ever I hope members can help

[AndyOrch]

Run through this with you later this evening Knet...just on my way out.

 

Regards

 

Andy