PRA Group claimform old MBNA card 'debt'

[shamrocker]

Johno - I've PM'd you with a suggestion.

[ibberty bibberty]

OK Jono

 

While I. as others, fully understand that you want closer to this matter, please do not lose sight of the fact that you are legally entitled to challenge this decision of the District Judge made against you by way of appeal against the same, which will of course save your so very good father thousands of pounds, in the event of your success.

 

Please take on board the fact that judges are not infallible, they make mistakes the same as all of us do, therefore, the judges’ decision on your case and the circumstances of it, are not set in ‘stone’, this is why our English Civil Justice System has an Appeal Court and a Supreme Court.

 

Did you, at any point in this matter challenge the validity of the default notices served on you? This is an important and material factor in your case, and regardless of what others may say on the self-same point of law.

 

Further, you must take on board that the service of any valid default notice by the creditor on his debtor does not relate to the date upon which the creditor’s cause of action accrued,

 

 

the service of such valid default notice is governed by the CCA 1974 (as amended) and must be served on his debtor pursuant to s.87 & 88 of the 1974 Act before the creditor can become entitled to terminate the credit agreement and enforce the same against his debtor,

 

 

and this is all that the 1974 Act (as amended) relates, it does not provide any creditor with any evidence as to his cause of action complained of against his debtor

 

Now, this post of mine may or may not attract a lot of criticism,

 

 

however, I do not care about that, all I am concerned with is ensuring that justice is not only done but manifestly seen to be done for you and your father and your family, which is, in fact, a fundamental public policy of the law of England and Wales.

 

Believe me jono, you and your very great and dear father have absolutely nothing to lose by challenging this decision through the appeal process, as you have a very important point of law that requires to be qualified and only the Appeal Court or the Supreme Court has the authority to qualify the same.

 

Of course it is up to you (and your father) to decide what, if any, course you wish to take on this matter.

 

By all means go out and have a meal with your father and your family and over the weekend and discuss this matter with them, and of course remember that you have 28 days from the date of the judgement made against you upon which you have a strict legal right to appeal such judgment.

 

You have, in my opinion, which is based upon the circumstances of your case posted here, a very, very, very, important point of law that requires to be qualified by either the Court of Appeal or the Supreme Court of England and Wales.

 

That important point of law is this:-

 

Does the creditors’ date of his cause of action accrued begin only when the creditor has served a valid default notice pursuant to s.87 (1) of the CCA 1974 (as amended) upon his debtor; or,

 

Does the creditor’s cause of action accrue upon the date upon which his debtor fails to comply with his fundamental obligation under the credit agreement to pay the required monthly payment pursuant to the terms and conditions of the credit agreement which the debtor has agreed, and effectively promised, to comply with such fundamental obligation thereunder?

 

ibberty bibberty

[johno23]

Really sorry but it got paid today £13k by my dad, I thank you all for supporting me and still offering me advice now.

 

Like I said previously this court case has taken a lot out of me and I really need to concentrate on work and my family as these get effected by the constant stress this has had.

 

Many thanks again, but need to sleep again instead of sleepless nights, lucky enough I have a payment plan with my dad which I can afford and no CCJ

 

Kind regards

 

Johno

 

Just out of interest can you appeal if you have paid judgement.

[ibberty bibberty]

Yes

 

ibberty bibberty

[honeybee13]

johno, I don't know the answer to this, but I think it would be worth understanding what the costs of appealing might be.

 

HB

[johno23]

Yes

 

ibberty bibberty

 

Really!

[ibberty bibberty]

The simple answer to your question is yes.

 

 

You can always ask your opponent if he accepts a stay of execution of the judgment dependent upon your appeal against the same, and no matter what his response, and no matter if your father has paid the debt pursuant to the Court order, you can still appeal against the judgement, on the grounds posted by me earlier

 

 

ibberty bibberty

[Guest]

ibberty (mould )

in general

you mentioned that there is no domestic authority re def notice/limitation. as you know, in such, the courts can consider leading cases from commonwealth with similar laws. albeit not precedent.

heres a leading aussie case where the matter was discussed (they have a v similar credit/limitation regime). eg para 38 etc saying that a def notice is re exercise (procedure) rather than existence of the right/cause, so being re enforcement not cause re limitation (the basis of my thoughts posted prior)? wonder if HC and above wld see it that way?

the case itself was re a loan which is different to a credit card. but the def notice re limitation general issue was still considered.

have a read, see what you think.

http://www.austlii.edu.au/au/cases/vic/VSC/2003/343.html

 

[WindySock]

Any appeal got off the ground?

[ibberty bibberty]

Hello there Ford (Saab) and jono and all

 

 

Please accept my apologies for not getting back to you sooner on this.

 

 

Thank you Ford for the link to the Australian authority, which appears to support what I believe to ours (and others) agreement on this point of law as regards a creditor’s date of cause of action complained of against his debtor.

 

 

Again, apologies to all as regards the length of this post on this particular and important point of law, the following is a narrative on the same and I sincerely hope that it will provide all consumers with knowledge as to an example of how to argue their cases on statute barred/cause of action regarding debt claims in proceedings issued against them by their creditors under a regulated agreement whereby the consumer has neither acknowledge the debt nor made any payment thereon for a period of 6 years or more.

 

 

BMW Financial Service (GB) Ltd v Hart [2012] EWCA Civ 1959 (10 October 2012) is such a case closer to home on this point of law, that is, the date upon which a creditor’s cause of action accrued against his debtor under s.5 of the Limitation Act 1980 (“the 1980 Act”).

 

 

As regards a credit agreement regulated by the Consumer Credit Act 1974 (as amended) (“the 1974 Act”) and the date upon which a creditor’s cause of action accrues under s.5 of the 1980 Act, is, in my considered opinion is a fundamental point of law for all consumers and creditors that requires to be clarified and qualified. As of the date hereof, the principle of law in this area is yet to be qualified.

 

 

In the BMW case, which, it should be noted, does not relate to the 1974 Act, Lord Justice Rix said, with whom Lord Justice Moore-Bick and Lord Justice Lewison agreed: on the point of law as to the date upon which BMW’s cause of action accrued for the purposes of s.5 of the 1980 Act regarding a contract concluded in March 1999 where the total sum thereunder was £39,967.25:-

 

Lord Justice Rix:

“Therefore, both on my interpretation of Reeves v Butcher standing by itself, assisted by my interpretation of the case relied on by their Lordships in that case, the case of Hemp v Garland, and also in the light of the authoritative discussion of Reeves v Butcher both in this court in Thakore v Malick and in the Privy Council in Lakshmijit, it is plain that the learned judge in this case below erred in his interpretation both as to Reeves v Butcher and also, in my respectful judgment, in his interpretation of the contract in this case. There is no avoiding the conclusion that in this case there can be no right to sue for the clause 12 payments, that is to say for the full sum due upon an acceleration less any debits which should be credited, or plus any additional amounts which might be claimable, until a termination notice has been given or an acceptance of the repudiation has otherwise been communicated. In this case, the same termination notice was both the exercise of the right to terminate by notice, and also an acceptance of a repudiation, itself a matter referred to in clause 12. It is only upon the serving of such a notice or a communication of such an acceptance of a repudiation that the much greater amounts due under clause 12 become due. Before such a notice or acceptance of repudiation, the only amounts due are the outstanding instalments. Unlike the cases discussed in the jurisprudence, the mere failure to pay an instalment does not by itself, under the provisions of the relevant contract, accelerate the obligation to repay the whole amount outstanding”.

 

Lord Justice Moore-Bick:

“In my view, the judge was wrong to think that that decision applied to the present case. In this case, the right to recover the sum set out in clause 12 did not arise unless and until the hirer gave notice to terminate the contract. That was a right that he could choose to exercise or not, but unless he elected to do so, the contract continued in existence and instalments of hire would have fallen due at the stipulated intervals. Under section 5 of the Limitation Act 1980 time in a case of this kind runs from the date when the cause of action accrues. In this case, the cause of action to recover the amounts claimed under clause 12 did not accrue on the customer's default alone, but only upon the election of the hirer to terminate the contract”.

 

Lord Justice Lewison:

“Clause 12 is on its face subject to two conditions precedent; namely the termination of the hiring by the owner under clause 12, or the acceptance by the owner of the customer's repudiation. In my judgment, since one or other of those conditions precedent must be fulfilled before the right to payments under clause 12 arises, it must follow that no cause of action accrued until satisfaction of one or other of those two conditions”.

 

Therefore, in the case referred, it was held that the appellant’s cause of action accrued upon the date when he served notice on the debtor that the contract was terminated or when he served notice on the debtor to accept the debtor’s repudiation of the contract. Such provision was expressly and specifically provided for in the terms and conditions of the contract by the appellant (BMW).

 

 

Therefore, let us now look at the scenario such as happened in jono’s case posted here.

 

 

Contract Law - Consumer Law- Consumer Credit Act 1974 (as amended) (“the 1974 Act”) and s.5 of the Limitation Act 1980 (“the 1980 Act”).

 

 

As regards consumer law, under a regulated credit agreement within the meaning of the 1974 Act, upon what date does the creditor’s cause of action accrue against his debtor for the purpose of s.5 of the 1980 Act?

 

 

The question posed relates to, what I believe to be, a very important point of law which will of course affect creditors and debtors, either for or against them upon the principle being clarified and qualified, and what follows here is a narrative of my expressed opinion on the principle that I believe is a fundamental one and which requires to be clarified and qualified, and of course as all members of the legal profession and all law students know, the issue on the principle is one that, as with all such issues, can only be clarified and qualified by either the Appeal Court or the Supreme Court, therefore, I set out below the law on this principle and my considered opinion thereon based upon my knowledge and understanding of the law on this point and jono’s case posted here.

 

To begin with then, let’s take a look at the statutory provision on this point.

s.5 of the 1980 Act provides:-

 

“Actions founded on simple contract

5 Time limit for actions founded on simple contract.

“An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

 

This puts us in the position with knowledge as to the limitation period within the jurisdiction concerning actions found on simple contracts; that limitation period is 6 years. In this respect, a simple contract for the purposes of this article shall mean a “credit agreement” under the 1974 Act between a creditor and debtor and is therefore a simple contract within the meaning of s.5 of the 1980 Act.

 

Putting aside s.5 of the 1980 for the moment, the 1974 Act imposes upon the creditor a particular restriction as to termination and enforcement under ss.87, 88, which provides:-

 

“Default notices

87Need for default notice.

(1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a)to terminate the agreement, or

(b)to demand earlier payment of any sum, or

©to recover possession of any goods or land, or

(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security.

(2)Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

(3)The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

(4)Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

(5)Subsection (1)(d) does not apply in a case referred to in section 98A(4) (termination or suspension of debtor's right to draw on credit under open-end agreement).

 

 

88 Contents and effect of default notice.

(1)The default notice must be in the prescribed form and specify—

(a)the nature of the alleged breach;

(b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

©if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

(2)A date specified under subsection (1) must not be less than 14 days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those 14 days have elapsed.

(3)The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the 14 days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

(4)The default notice must contain information in the prescribed terms about the consequences of failure to comply with it and any other prescribed matters relating to the agreement.

(4A)The default notice must also include a copy of the current default information sheet under section 86A.

(5)A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid”.

 

 

Now, under a credit agreement within the meaning of the 1974 Act, the debtor’s principle obligation thereunder is to repay the credit advanced pursuant to the key terms and conditions thereof, this obligation of the debtor is a fundamental one and underlies the foundation of the agreement with his creditor.

 

What, then, is the situation whereby a debtor is in breach of his fundamental obligation to his creditor under the credit agreement and the breach continues?

 

In such circumstances of the debtor’s fundamental breach, the creditor has every right to invoke his legal right under 87(2) of the 1974 Act and in almost all circumstances the creditor exercises such strict legal right and rightly so.

 

In these circumstances, however, this brings in to play s.5 of the 1980 Act as regards the date upon which a creditor’s cause of action accrued. Under s.87 of the 1974 Act, the creditor is not entitled to terminate the agreement, to demand earlier payment of any sum, to recover possession of any goods or land or to enforce any security, unless the creditor serves a valid default notice on the debtor pursuant to s.88 of the 1974 Act. (see Harrison v Link Financial Ltd [2011] EWHC B3 (Mercantile) (28 February 2011) & Brandon v American Express Services Europe Ltd [2011] EWCA Civ 1187 (25 October 2011) ).

 

So, for an example, let’s say that the debtor’s fundamental breach occurs in January 2007 and it continues for the next 5 years and 363 days from that date (in a ‘leap year’ the amount of days would be 364), notwithstanding numerous correspondence from the creditor, including the creditor’s instructed debt collection agent, requesting that the debtor brings the account up to date or engages in discussion to explain the reason as to why he has not made any payments to the account for that period of time and setting out the consequences on the debtor if he should continue with his unreasonable conduct and fundamental breach of his obligation under the credit agreement, the debtor’s breach, however, continues; with the 6 year limitation period on the verge of expiring, the creditor serves a valid default notice on the debtor at 5 years and 349 (or 350) days, the debtor fails to remedy the breach complained of within the statutory 14 day time limit and therefore the creditor (rightly or wrongly) elects his entitlement under s.87 of the 1974 Act to terminate the agreement and demand payment of all sums due thereunder and asserts that this is the date upon which his cause of action accrued against the debtor.

 

In such a case the debtor will almost always claim that he can and does rely upon s.5 of the 1980 Act and send correspondence to his creditor in this respect that the creditor’s demand is statute barred. Naturally, the creditor disagrees with this and he issues a claim.

 

The litigation on this issue places a burden upon the Court to make a judicial decision thereon based upon all the circumstances and evidence relating thereto.

 

That point of law, in such case as referred, on which the Court is called upon to decide, is this:-

 

The issue

 

a) Does the creditors’ date of his cause of action accrued against his debtor begin only when the creditor has served a valid default notice pursuant to ss.87, 88 of the 1974 Act (as amended) upon his debtor, which the debtor has not remedied; or,

 

 

b) Does the creditor’s cause of action accrue upon the date upon which his debtor fails to comply with his fundamental obligation under the credit agreement to pay the required monthly payment pursuant to the terms and conditions of the credit agreement, which the debtor has agreed, and effectively promised, to comply with such fundamental obligation thereunder?

 

 

We have now seen the statutory position on this point, in this regard, does s.5 of the 1980 Act override ss.87 & 88 of the 1974 Act, or vice versa? Both are individual sophisticated pieces of legislation, and in my opinion, one statute cannot contradict another, and it is my understanding that one statute never contradicts another, the reasons for this are obvious.

 

In a case such as referred (above), if the Court should find in favour of the creditor in that service of a valid default notice, which has not been complied with, provides him with grounds as to the date upon which his cause of action accrued, would not such a finding effectively extend the statutory 6 year limitation period under s.5 of the 1980 Act for a further 6 years and thereby grant the creditor a total of 12 years in which to issue his claim? Would such a judicial decision contravene s.5 of the 1980 Act?

 

In my opinion, it would. Because, ss.87.88 of the 1974 Act relate exclusively to a creditor’s right and entitlement to terminate the credit agreement and demand full payment of the debt owed/claimed. The 1974 Act doe s not relate to a creditor’s cause of action and unless he (the creditor) has included specific clauses in the agreement (such as BMW did), the date on which his cause of action accrues will be the first time when his debtor fails to comply with his fundamental obligation under the agreement to make the required monthly payments that he has expressly agreed to make thereunder and continues (for whatever reason) to breach the agreement.

 

The debtor is therefore in anticipatory breach of the agreement. Such conduct is referred to as repudiation under contract law and if the creditor does not affirm the contract he is entitled to elect rescission against the debtor and treat the contract at an end and enforce. However, under a regulated agreement, the creditor is not entitled to elect and end the contract and enforce unless he first serves a valid default notice on his debtor which the debtor does not remedy.

 

Some may argue that service of a valid default notice constitutes affirmation of the agreement by the creditor against the debtor’s conduct of repudiation and in a way it is, but such affirmation does not extinguish the date upon which the creditor’s cause of action accrued, unless the debtor remedies the breech within the 14 day time limit.

 

However, in the circumstances of jono’s case, his creditor knew that as of February 2009 jono was in fundamental breech of the agreement and jono’s conduct continued to evince clear and unequivocal repudiation of the same.

 

Therefore, in jono’s case, service of a valid default notice and non-remedy of the same did not provide his creditor with the date on which his cause of action accrued, the default notice served simply entitled the creditor to terminate the agreement and demand payment of all sums due under the agreement, however, by the time the creditor served the default notice and the statutory 14 days to remedy the breech had expired, the 6 year limitation period under s.5 of the 1980 Act had long expired and this provided jono with a complete defence against his creditor’s claim.

 

The judge in jono’s case, who sat as judge in an inferior Court (lower Court such as County Court) has erred in law as to the case pleaded before him by the creditor. The decision made against jono is plainly wrong.

 

The creditor in jono’s case used ss.87 & 88 of the 1974 Act as a means of extending s.5 of the 1980 Act and as a means of evading the limitation period provided thereby which is entrenched in our law and this is manifestly unjust.

 

 

ibberty bibberty

[caro]

johno, I don't know the answer to this, but I think it would be worth understanding what the costs of appealing might be.

 

HB

 

Agree with HB. At least you aren't paying interest and costs now, but should an appeal fail you could be exposed to substantial costs, not to mention the stress of it all again.

 

I'm not saying you shouldn't appeal, but make sure if you do that you go in with your eyes wide open.

[Guest]

Any appeal got off the ground?

it may well have. via elsewhere. maybe what shamrockers pm was about

it is a shame that OP's sometimes dont come back with at least a brief update if poss, even if they are elsewhere. it all helps to help everyone.

[Floydian]

Ford I've just updated my position on my case as I totally agree with you,

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?457344-Hillesden-dlc-mortimer-claimform-Black-horse-car-loan-(Stat-barred-)

Edited January 8, 2016 by Andyorch
Link added

[WindySock]

So if there was an appeal, how did it go?