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Hoist Portfolio 2/? claimform - old Barclaycard 'debt' ***Claim Still Struck Out ***

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To play devil's advocate

3.The Default Noticed was issued 24th May 2010 and served several months after the initial breach thus the cause of action delayed by 7 months and the Limitations period prolonged to 6 years and 7 months which in effect allows the creditor to stop time running and the creditor having effective control of when a limitation period begins or even starts to run.

 

You could easily argue the opposite just as easily. A creditor is unable to take any form of legal action until a valid default notice is issued (s87/88 cca act is quite clear on that) and the DN must allow 14 days for the defaulter to take remedy the situation. Therefore if the last payment started the clock no creditor would actually have the full six years they would always have somewhat less.

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Ok, now I'm confused on the way forward?

 

 

Am I not still defending my position from the point of SB in response to the Notice of Proposed Allocation to the Fast Track and the N180 / N181

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Ok, now I'm confused on the way forward? Am I not still defending my position from the point of SB in response to the Notice of Proposed Allocation to the Fast Track and the N180 / N181

 

Yes


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Yes indeed I was pointing out a potential flaw in your defence.

 

In fact I think its fatally flawed

The time starts to run from the earliest time that the legal proceedings first could have been brought.

 

This means that every fact which is required to commence an action must be in existence before the limitation period will start to run.

 

Your defence means the creditor would have to commence legal action the day after the last payment which is simply not possible.

 

Section 98A 1.3 cca states a creditor must provide 2 months notice to end an agreement without a breach of contract with a justified reason.

 

Presumably if one stopped paying if issued a termination notice

this way a creditor would only ever have 5years and 10 months if your argument was correct.

 

I'm only trying to illustrate some of the issues the claimant is likely to make.

 

In my mind the real issue boils down to is 7 months an unreasonable time to wait before issuing a dn?

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I've no idea,

I'm not a lawyer or a court of law and with £57 in the bank and lots of debts, some going back to 2002 (HMRC) when I broke my back, it's unlikely I'll have a sufficient defence other than this.

 

The default notice is May 2010....

apart from the fact I have no paperwork and they won't send any,

the SB is all I have, which isn't sounding to good,

 

 

I can't get any credit, nor do I need any, so I guess another 6 years of bad debt isn't going to kill me.

 

thanks for your help

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My exact last payment date was the 5th Oct 2009

and the default date as per Equifax is 29th July 2010

 

 

then :The default notice was served on the 7th May 2010

 

 

 

should be ok re SB.

 

 

dx


..

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Section 98A 1.3 cca states a creditor must provide 2 months notice to end an agreement without a breach of contract with a justified reason.

 

 

there you go, as you say 'without a breach of contract'. thats when such a notice is applicable as the cause. not a dn,

which is re a prior breach as stipulated in the dn.

 

 

the mentioned breach subsisting as the cause of action if the payment asked for in the dn is not paid.

a dn is administrative and does not govern the existence of the right (cause).

 

 

the breach is when a creditor can start to take action.

the dn being a procedural part of that process if it is applicable.

 

 

thats what some (experienced) judges have said, and i agree with.

 

 

others may not. but, it is not categoric, as you say, that time runs from a dn.

 

wandsworth,

if the bar issue rests between the two, then a claimant will obviously argue it is re the dn

(or even the default date in some cases).

it is for you then to argue otherwise.

some may agree, some may not.


IMO

:-):rant:

 

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the breach is when a creditor can start to take action.

the dn being a procedural part of that process if it is applicable.

 

That is true but a creditor can only take legal action after the dn has been issued.

Anyway lets not go there again.

 

others may not. but, it is not categoric, as you say, that time runs from a dn.

 

wandsworth,

if the bar issue rests between the two, then a claimant will obviously argue it is re the dn

(or even the default date in some cases).

it is for you then to argue otherwise.

some may agree, some may not.

Totally agree that is the crux of the matter

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thanks guys,

 

 

I've requested paperwork from the claimant and never received it,

I have the original DN, which was issued 7th May 2010 and not the end of July as stated by the claimant.

It's a 70/30 call on how the judge feels on the day and his attitude towards these cases historically.

 

At the end of the day,

I have no assets,

a small income from my war pension and therefore no ability or even a reason to get more credit,

if I lose they get nothing and I get a CCJ and a credit file no worst than its been for the last 6-7 years.

 

I'll go down fighting as always

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Hi guys,

 

currently completing this Notice of Proposed allocation to the fast track. The letter states I must complete form N181 (I've downloaded it) and file it with the court and serve on all parties.

 

But the court has sent me a much simpler form called a N180 which mentions However, a free confidential Small Claims Mediation Service which is available to parties in most small claims cases which are for less than £10,000.

 

Do I call the courts and find out if they've sent me the correct response, or simply return the N181 in your opinion, secondly is fee mediation an option in the N181 (I can't pay anything) and do I even attempt to go down that road.

 

What are your thoughts?

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No its the N181 you need to send as its over 10k, you can download one easily and fill it in for printing

 

3 copies needed when printing

Court

Other side

File


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I personally would complete the N180...try to get it into Small Claims Track.....and mediation on fast track is not free it is paid for by each party.

 

Andy


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I contacted the court and they stated I must use the N181.

 

 

Having read the form and the supported EX305,

fast track is clearly complicated,

 

 

what I do know is that mediation is not an option as I do not have £300

and legal aid is not available for this type of debt,

plus it would look to me that going to mediation with negate the whole SB defence?

 

Given the circumstances, this is how I'm proceeding and perhaps you could give me a point of view

based on the potential outcome we're attempting to win with.

 

Settlement

Given that the rules require you to try to settle the claim before the hearing, do you want to attempt to settle at this stage? NO

 

If you answered ‘No’ to question 1, please state below the reasons why, you consider it inappropriate to try to settle the claim at this stage.

 

I'm unsure what to write here, any ideas?

 

I'm assuming I don't need to complete the rest of the form, other than a signature etc at the bottom.

 

When it states "serve" copies on all parties, it does just mean put a copy to everyone in the post?

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If SB is your defence, then thats all tou need put

 

"The alkeged debt is SB"

 

3 copies

Court

Other side

File


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I am not legally trained or qualified, any advice i offer is gleaned from experience and general knowledge, if you are still unsure after receiving advice please seek legal advice.

 

 

 

GEMHL Settled

Barclaycard Settled

A & L SETTLED IN FULL :lol:

Spml Reluctantly withdrawn

Blackhorse pre 31-7-06 Demand removal sent 23 8 06. ICO ordered removal jan 2007....REMOVED:lol:

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Just completing an N181 with another poster Wandsworth in the following thread...directions yet to be finalised

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?461958-HPH2-Cohen-Claimform-Barclaycard-%91debt%92/page2

 

Andy


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Thanks Andy this is perfect. As we did before, I'm going to wait until the last minute to submit the N181, in the unlikely event that the claimaint sends their response first.

 

Would it also be pertinent to send a letter to the claimant and the court, stating that in the past I requested to Howard Cohen and Co. Solicitors via CPR 31.14 for the disclosure and production of a verified and legible copy of the agreement, the assignment and the default notice and in order to start a process of mediation / settlement, this would need to be complied with?

 

Or let the court decide from the N181.... all makes a little more sense now.

 

as always, many thanks

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why?

the debt is sb'd

doesn't matter if they have or not paper

or if it even exists.


..

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I see your point, we're basically standing by the defence that legally, this debt cannot be chased.... the longer it gets the better as well.

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no cannot be enforced regardless to what they do or do not kold/have

 

 

in an sb defence

nothing else matters.

its absolute.

 

 

it clearly puts the claimant to strict proof to prove its not sb'd

its not for you to have to prove otherwise.


..

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ok great, based on that, I have completed the form as follows, hopefully if this is correct, this will help others in the same situation follow the same route.

 

N181 Form completion - Defence Statute Barred

 

A.Settlement

1. Given that the rules require you to try to settle the claim before the hearing, do you want to attempt to settle at this stage? NO

3. If answered ‘No’ to question 1, please state below the reasons why you consider it inappropriate to try to settle the claim at this stage:

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 action 1980

 

B. Court

B2. Trial All Cases - Is there any reason why your claim needs to be heard at a court or hearing centre?

YES - Name of local County Court

 

C. Pre-action protocols

Leave blank

 

D. Case Management information

D1. Have you made any application(s) in this claim? No

Leave the rest blank

 

E. Experts

Do you wish to use expert evidence at the trial or final hearing? No

Leave the rest blank

 

F. Witnesses

Witness name: Witness to which facts

Myself All facts

 

G. Trial or Final Hearing

How long do you estimate the trial or final hearing will take? 2 hours

 

H. Costs - Leave blank

 

I. Other information

Do you intend to make any applications in the future? No

Leave the rest blank

 

J. Directions

Looking for further guidance here and a review of the above if possible, the court have stated I can send this information and the completed form by email.

 

 

 

 

 

myself

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Yes that fine.....just keep your eye on the thread I have linked to...will update the directions today/tomorrow.

 

Andy


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Hi guys,

 

I've received the claimant's direction questionnaire and draft directions from Howard Choen, the answers (in bold) are as follows:

 

 

A.Settlement

1. Given that the rules require you to try to settle the claim before the hearing, do you want to attempt to settle at this stage? YES

2. If yes, do you want a stay of one month? YES

 

B. Court

B2. Trial All Cases - Is there any reason why your claim needs to be heard at a court or hearing centre?

YES - The Defendants local county court because the defendant is a litigant person

 

C. Pre-action protocols

There are no applicable to regulated consumer credit claims

 

D. Case Management information

D1. Have you made any application(s) in this claim? No

D2. The debt claimed is a relatively straightforward consumer credit debt and there are no points of law in the defence to be contested

D3. Have you reached agreement? No

 

E. Experts

Do you wish to use expert evidence at the trial or final hearing? No

 

F. Witnesses

No witnesses required. Evidence relied upon will be filed in the claimants witness evidence.

 

 

G. Trial or Final Hearing

How long do you estimate the trial or final hearing will take? 1 hours

 

H. Costs -

I confirm precedent H is attached

 

I. Other information

The debt claimed is a relatively straightforward consumer credit debt and there are no points of law in the defence to be contested

 

Please therefore find enclosed the Claimaints draft directions seeking an order that the claim be allocated to the small claims track to save judicial listing time and costs for both parties

 

 

J. Directions

1. Pursuant to CPR 26.7(2), the claim be allocated to the small claims track

2. There be a stay in proceedings of 1 month to allow both parties to negotiate settlement of the claim by way of the small claims mediation service

3. Both parties to inform the court 30 June 2016 if settlement has been agreed or if an extension of the stay is required

4. If a settlement has not been agreed, then the claim be transferred to the defendants local court to be allocated to the small claims track and listed for a hearing on a date to be fixed by the court with a time estimate of 1 hour

5. The claimant pay the hearing fee on a date to be fixed by the court

6. No expert evidence being necessary, no party has permission to call or rely on expert evidence

7. Each party shall deliver to every other party and to the court office, copies of all documents on which they intend to rely upon no later than 14 days before the hearing along with a signed statement of truth.

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I'm happy to go to mediation, but I'm not settling for anything other than SB.... is there, therefore any point of this?

 

Still interested to see if they even have any paperwork, still not seen it in 7/8 years and their default dates are incorrect, so makes me thing they don't have the DN either.

 

Happy to take guidance guys, many thanks.

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I'm happy to go to mediation, but I'm not settling for anything other than SB.... is there, therefore any point of this?

 

Still interested to see if they even have any paperwork, still not seen it in 7/8 years and their default dates are incorrect, so makes me thing they don't have the DN either.

 

Happy to take guidance guys, many thanks.

if you tick yes to mediation, mediation will then ask you their set q's prior. if they cant be answered 'yes', then there wont be any mediation anyway.


IMO

:-):rant:

 

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