SD from BW-Disputed-SB Debt-SET A SIDE-Now Claimform

[Old Cogger]

Send proof of the stated payment. i..e. who, by whom, cheque etc etc etc they all try that old one! set them to proof.

[AndyOrch]

I have heard back from BW Legal who say the alleged debt is not stature barred because;

 

-A balloon payment became due 2010 therefore the debt is not stature barred.

-A default was issued in 2010. (I did not receive any default paperwork in 2010 and I have just checked my credit file today and there are no default notices showing)

 

Not sure how to move forward, can anyone offer any advice please?

 

I think we need the full (verbatim) contents of this letter...not just 2 lines...to consider in what pretext they are arguing a balloon payment defeats limitations and details of the breach and default.

 

Regards

 

Andy

[PlumeDove]

Thanks for your prompt replies

 

The email stated;

 

“The content and relevant sections of the Statutory Limitations Act (1980) quoted within your communication are noted. However in this instance our opinion is that section 5 of the Act is not applicable. It will be argued that date of last cause of action in this matter is May 2010 when, as per the terms of the Hire Purchase agreement you entered, the balloon payment of £1,713.00 became due.

Accordingly the earliest the statutory limitation period can expire is May 2016.

 

It should also be noted that the date of default notice (issued to your current address) was dated May 2010.

 

Despite previous correspondence we have not been made aware of any previous complaint and we fail to see how any complaint would be upheld when such a small portion of the balance required under the terms of the agreement £8,335.51 due with £1186.51 repaid) Nevertheless if details are supplied we will give them due consideration.

At this time we do not intend to withdraw the Statutory Demand”

 

 

As mentioned above I have never received the Default Notice they refer to and my credit file is clear.

 

Thanks again for your help

[unclebulgaria67]

If the loan was not being actively serviced before this defaulted balloon payment in 2010, I would think it goes back to whenever you stopped paying before that.

 

Think you will have to do the set aside based on when you stopped paying the loan back and when you originally defaulted on making due payments. Then mention that the original creditors failed to honour an upheld Judgement from the FOS.

 

As I thought the set aside was due last Friday, you may wish to get this in ASAP and mention that you have tried to get the claimants solicitor to withdraw and there is a disagreement on the debt being subject to limitation which you wish to have heard.

[AndyOrch]

So basically they think the default date was May 2010...unsure where they are going with the balloon payment theory.Time for you to do some research and find out precisely date of last payment....when the claimant is allowed to act on the breach (Cause of Action) and what date was the agreement terminated.

[PlumeDove]

Thanks for your replies,

 

I have already submitted the paperwork to the court to set aside, with a defense of stature barred. (I had a letter back from the court to confirm the application is in process)

The last payment was definitely made in early 2007, I have paperwork to evidence this.

The original creditor issued a default in 2008, they were advised to remove it (please see my earlier posts) but I'm not sure if they did as I have had no correspondence from them since the FOS got involved.

 

Thanks again, appreciate your thoughts

[PlumeDove]

I searched out my copy of the original Default notice, its actually dated March 2007 so earlier than stated above

[havinastella]

I searched out my copy of the original Default notice, its actually dated March 2007 so earlier than stated above

 

Is that the account defaulted or a default on your credit score? Either way, they are screwed, keep a track of those costs!

[PlumeDove]

Hi thanks for your quick reply, yes its a default on the account ' This Default Notice now served on you...' ( the HP agreement account number is on the letter )

Sorry, not sure what you mean about keeping track of the costs?

[PlumeDove]

I have a hearing date on the 21st July. I have my copy of the default notice (2007) can anyone tell me if I need to submit this to the court before the hearing, or do I bring it with me on the day to prove the debt is stature barred?

Thank you

[unclebulgaria67]

I have a hearing date on the 21st July. I have my copy of the default notice (2007) can anyone tell me if I need to submit this to the court before the hearing, or do I bring it with me on the day to prove the debt is stature barred?

Thank you

 

In your defence did you mention the account to be in default earlier and therefore the claimants Solicitors could have looked into it ?

 

Wait for a more authoritative response, but I think as the defendant you can just take to the hearing any documents to support your defence and provide the claimants Solicitor and Judge a copy before the hearing starts. The onus should be on the claimant to dispute your defence, with documentary evidence. My only slight concern about turning up with documents on the day, is that the Judge may allow an adjournment, on the basis that you could have supplied the information to the Claimants Solicitors so they could look into it.

 

I think what happened is that the original creditor kept the account open while it was at the FOS. They have then not bothered to do the admin on the account when the FOS complaint was upheld. Eventually it appears on some account spreadsheet and it is sold on as a debt asset. It would not surprise me if the original creditor has just told the debt buyer about the defaulted balloon payment and nothing about what happened prior to that.

[PlumeDove]

Hi thanks very much for your reply,

I informed BW debt was stature barred (email and post) a few days after receiving the statutory demand. A the same time I submitted the application to set aside, as time was running out.

 

A couple of days ago I heard back from BW (via email and post) saying they did not believe the debt was stature barred due to the balloon payment / default in 2010 (I have never received a 2010 default notice, nor did they enclose a copy of it with their letter)

 

Their response prompted me to search again through my paperwork and that’s when I found a default notice dated 2007.

I am sending another letter to BW enclosing a copy of the 2007 default notice so they should receive this information before the hearing date. I will also ask for a copy of the 2010 notice they say they have but not sure if I have to send a SAR?

 

Also, is there any way I can amend my submitted witness statement to include a copy of the 2007 default notice?

 

Thank you, appreciate any help with this!

[unclebulgaria67]

Just send them a copy of the 07 default advising no payments made by you since then. Also remind them the original creditor failed to apply the upheld decision of the FOS against them. Request withdrawal in writing and your costs up to date. ( costs £19 an hour, plus other admin cost incurred)

[PlumeDove]

Success! Statuary Demand set aside, the Judge was not happy it was used as a means of establishing a debt. Thank you to all for your help, esp unclebulgaria67

[citizenB]

Excellent news - really pleased to hear this. Will amend your thread title to reflect this.

[citizenB]

Did you receive your costs ?

[unclebulgaria67]

Well done.

 

It might be worth researching about balloon payments affecting stature barring, just in case they look to issue a court claim. They might issue a court claim and try to argue the toss.

[AndyOrch]

Well done Plumedove...

 

Delighted that have managed to resolve this.

 

Regards

 

Andy

[PlumeDove]

An update...

They are taking me to court again, and have applied for a CCJ. They have also added interest and are now claiming £10,750. The case has been allocated to the small claims court and my hearing is at the end of the month.

[postmn]

An update...

They are taking me to court again, and have applied for a CCJ. They have also added interest and are now claiming £10,750. The case has been allocated to the small claims court and my hearing is at the end of the month.

 

if this debt is SB than that is a absolute defence . i thought you had already established than

[unclebulgaria67]

I did say last August that Lowell would look to test this again. You need to find out about the balloon payment in contracts affecting statute baring.

 

If the hearing is at the end of the month, you have just submitted a statute barred defence pointing to the 2007 issued default notice which you never paid ?

 

What would affect your defence ?

[PlumeDove]

Thank you for your response.

That's correct; the SD was set aside on the grounds that the debt was SB.

However he did say that the ‘final payment’ is separate debt from the original debt, even though it’s the same agreement. He went on to say it depends on when the account was closed. I did contact the OC after the hearing asking for a date the account was closed but have not heard back.

During the hearing I submitted the letter from the FOS (please see my first post) the judge said these sums would be ‘offset’ against the final payment which would in fact leave the DCA owing me money -except the DCA have added 6 years of interest to the final payment, (it was due in 2010) plus court fees on top, and as mentioned the original amount (which the judge agreed is definitely SB)

When I received the CCJ paperwork I went to the CAB who were really surprised at the action of the DCA and said they were ‘trying it on’. They helped me fill in the court papers to file a defense.

It’s a complete nightmare and I’ve probably not handled it properly. Although I did seek advice from the advisory services it appears to be a complex case. I really don’t want to end up with a CCJ

[unclebulgaria67]

What happened with the car and loan after the default in 2007 ?

 

Something does not make sense to me.

[PlumeDove]

Nothing, I still have the car and they never contacted me after the FOS wrote to them with the outcome of my complaint. (which was to amend the agreement, set up ppi if i wanted it plus they should pay the next 12 mths installments, refund me the £50 they had taken, and remove any default from my credit file ) I'm presuming I must have contacted them at the time, but to be honest its been so many years I really cant remember.

[unclebulgaria67]

Nothing, I still have the car and they never contacted me after the FOS wrote to them with the outcome of my complaint. (which was to amend the agreement, set up ppi if i wanted it plus they should pay the next 12 mths installments, refund me the £50 they had taken, and remove any default from my credit file ) I'm presuming I must have contacted them at the time, but to be honest its been so many years I really cant remember.

 

Not that it matters, but have you ended up with a car you have not fully paid for due to the Banks incompetency ?

 

What happened to the loan account betwen the 2007 default date and the 2010 defaulted ballon payment ? Did you ever get all of the Banks records by sending a subject access request ?

 

I just wonder whether the 2007 default notice was cancelled. The Bank applied the FOS awarded money to the loan account and no payments were collected before the 2010 ballon payment was due. When the balloon payment was not paid, it was chased up to the address on record and then defaulted.

 

Had you moved address sometime before 2010, so the Bank did not have your address to send the 2010 default notice ?

 

I have a feeling that Lowells will argue that the 2007 default notice was not relevant, as it was withdrawn or cancelled. The only default that is therefore relevant is the balloon payment default in May 2010.

 

Might be wise to get hold of all of the Banks loan account records, if you have not done so. An urgent SAR.