Lowell claimform - Old Creation Loan - Prob SB'd***Claim Discontinued***

[dx100uk]

What was the date of your last payment? It would have been in the month of September 2008

how do you know the above is true

[paullaroy]

it seems from what you have posted re what they said, they are either going to argue it from the def notice date (bmw v hart case for eg), or the default register date if the dn is over 6 years prior to the claim and def register date isn't. either can be argued against.

 

what free credit checks did you do, noddle, clearscore, experian?

 

Ive done all Three and none of them display the default, i also have a really good credit score but it is of course over 6 years now since the supposed default.

[paullaroy]

What was the date of your last payment? It would have been in the month of September 2008

how do you know the above is true

 

Because that is the month that i lost my job and the ex wife kicked me out... as im sure you understand thats a point in life that im gonna be pretty clear on.

[AndyOrch]

So how is your witness statement coming along Paul?

[paullaroy]

So how is your witness statement coming along Paul?

 

Not good to be honest because i dont really know what to put in it, other than "its statute barred"... because i dont have any proof or knowledge of what im doing.

 

im really worried im gonna do something that is going to jeopardise the whole thing..... im 100% know that it is statue barred.

 

Ive got a feeling im gonna get shafted here with this.

 

I could really do with help.. i thought the old SB letter to them would be the end of it.

[AndyOrch]

You will have to start looking at other threads then and look for examples of statute barred witness statements.

[paullaroy]

You will have to start looking at other threads then and look for examples of statute barred witness statements.

 

ok thanks

[paullaroy]

You will have to start looking at other threads then and look for examples of statute barred witness statements.

 

Sorry to be a pain but can you point me in the right direction of where i can find this please?

 

Ive used the search function at the top of the page typing in "witness statement" but nothing is really jumping out to say this is what you need to do.

 

Thanks

[AndyOrch]

Post#164....

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?370562-Drydensfairfax-taking-me-to-court-on-behalf-of-honours-student-loans/page9

[paullaroy]

Post#164....

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?370562-Drydensfairfax-taking-me-to-court-on-behalf-of-honours-student-loans/page9

 

Excellent thanks, and am i right to understand that i need to send a copy of this to both the court and the DCA?

[AndyOrch]

Excellent thanks, and am i right to understand that i need to send a copy of this to both the court and the DCA?

 

You need to adapt it first to suit your particular claim...dont just copy and paste it..and post your intended draft here for checking.

 

Yes to the court and a copy to the claimants solicitor...not the claimant.

[paullaroy]

You need to adapt it first to suit your particular claim...dont just copy and paste it..and post your intended draft here for checking.

 

Yes to the court and a copy to the claimants solicitor...not the claimant.

 

Excellent thanks again.

 

Ill get on it when i get home from work tonight and i have the paper work in front of me to be able to fill in the appropriate bits.

[paullaroy]

You need to adapt it first to suit your particular claim...dont just copy and paste it..and post your intended draft here for checking.

 

Yes to the court and a copy to the claimants solicitor...not the claimant.

 

In the XXXXXXXXX county courticon Claim no. XXXXXXXX

 

Between :

 

Lowell Claimant

And

Paul Laroy

Defendant

 

Witness Statement of Paul Laroy in response to the Claimants application for Summary Judgment CPR 24

 

I Paul Laroy of (address) WILL STATE AS FOLLOWS:

 

1.I am the defendant in this case and state the following in support of my defence dated (todays date) in response to a claim made by the claimant dated 29th September 2016

 

2. My defence

 

2.1 The Claimant's claim was issued on 29th September 2016

 

2.2.The date last payment made was the 30th September 2008

 

2.3. The claimant claims that they brought the debt on 11th May 2011.

 

2.4. A letter sent by the defendant on the 30th August 2016 and signed for by the claimant 31st August 2016 advising that the claim was statue barred was ignored.

 

2.5. In any event it is denied that I was ever served a Default Notice served under Section 87 (1) on 28th December 2010. No proof of this has been provided by the claimant, nor does it appear on the defendants credit file.

 

2.6.Due to the creditor not purchasing the debt until 11th May 2011, the default notice if produced would have been created by the original creditor and not the claimant making the claim.

 

2.7 Should proof of the default notice being issued be presented to the court the defendant advises that it was served over 2 years after the initial breach thus the cause of action delayed by 27 months and the Limitations period prolonged to 8 years and 3 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.

 

2.8.Therefore the Defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred on pursuant to the provisions of section 5 of the limitation action 1980. 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 true cause of action for breach accrued for the benefit of the Claimant.

 

2.9.It is my contention statute - s5 limitation Act states..

 

'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'.

 

The cause -(accrued) from the fisrt payment missed due date is the breach of agreement, and not the notice that the Claimant alludes to as such notice is procedural re the breach.A Claimant can not elongate the passage of time by relying on the later termination notice date,cause of action will run from from the breach of agreement not from when a creditor decides to issue a Default Notice.

 

2.10.The Claimant's claim to be entitled to payment of £1085.15 or any other sum, or relief of any kind is denied.

 

2.11. In the circumstances the court is invited to dismiss the Claimants claim on the grounds that its unfounded and they are fully aware that its statute barred pursuant to the provisions of section 5 of the limitation action 1980

 

I believe the facts stated in this Witness Statement are true

 

 

signature

 

Paul Laroy

 

Dated.xxxxxxx

 

Any further advice would be appreciated.

Edited February 8, 2017 by Andyorch
Edited and tweaked

[dx100uk]

I hope that is not your real name?

[AndyOrch]

Thats fine Paul...I have removed the references to Summary Judgment as that was with regards to the other thread that I linked....and made a few amendments

 

Regards

 

Andy

[paullaroy]

Another letter received today from the sols

 

"We refer to the above matter and your defence dated.....

 

As you are aware a hearing is due to take place......

 

Please find enclosed a statement of account which confirms that the last payment made to the account by you was was for the sum of £31.72 and this was paid 11th November 2008.

 

You have admitted that the default notice was to you on the 28th December 2010. Our client believes that whilst the default occurred on December 2009 the cause of action occurred once the default notice was served upon you namely on 30th December 2010. Therefore the limitation period commenced from 31 December 2010 and until December 2016

 

Our clients claim was issued on the 29 September 2016 and therefore this is within the six year limit ruling perios.

 

Our client believes that based on the matter of BMW financial services GB (LTD) V Hart (2012) EWCA Civ 1959 our clients claim is not based on an account that is subject to limitation pursuant to the limitations act 1980. WE have enclosed a copy of the judgement for you attention.

 

For the reasons stated above our client believes that it has reasonable prospect of success at the hearing, however our Client remains willing to reach an amicable agreement. We therefore invite you to put forward any realistic settlement proposals in order to settle this matter and avoid proceedings to the small claims hearing on.......

 

We look forward to hearing from you."

 

Any advice please?

[dx100uk]

Yes they are wrong

[paullaroy]

Lets hope so.

[AndyOrch]

In the case of BMW financial services GB (LTD) V Hart (2012) EWCA Civ 1959 it was an HP agreement with that term was specifically included in their terms and conditions...yours are different for a personal loan.Cause of action is from the first missed contractual payment.

 

Andy

[paullaroy]

Just a quick update as it irritates me in reading these threads and never actually getting the final outcome... received notice of discontinuation this morning from the solicitors of Lowell.....

 

Just wanted to say thanks to everyone for their help.

[AndyOrch]

Well done paul

 

So they didn't decide to rest their luck on BMW financial services GB (LTD) V Hart (2012) EWCA Civ 1959.

 

Thread title amended to reflect the outcome.

 

Please consider making a donation to help us to continue to help others in the same predicament as yourself.

 

Regards

 

Andy

[Guest]

happy days...