Erudio/Drydens claimform - 1993/4 SLC Loan - poss SB'd? - now N244 strikeout+SJ

[europa16]

Okay, thank you 

[europa16]

Drydens sent a letter back eventually saying they would refer back to Erudio. 

This week Erudio have sent me a statement of account for the two statute barred loans and the yearly "you are in arrears" letters. 

Ignore or tell them to shove it up their bum?

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Received letter from Drydens claiming they will apply to the court to lift the stay if I don’t get in touch (after allegedly ignoring recent non-existent correspondence!) and ask for an application for summary judgement.

 

got better things to do than deal with these clowns…

 

2022-03 drydens discount letter-threat to lift stay.pdf

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As with others, I have also received a N244 application notice that Drydens are asking for

Order:

1. For the stay imposed on proceedings to be lifted;
2. For the defence to be struck out and / or summary judgment on the whole claim Persians to r3.4(2)(a) and r24.2(a)(I) and (b) CPR; and
3. There be a cost order against the defendant 

Reason being there is no reasonable grounds for defending the claim and/or no compelling reason why the case should proceed to trial.

There apparently is supposed to be an attached witness statement from the technical litigation officer at Drydens but I have received nothing - I’ve asked the court to check what I should actually have!

I’ll post up the (redacted) paperwork shortly, but in the meantime do I need to do anything else?

Paperwork received is attached

 

N244 Strikeout + SJ.pdf

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Am attaching the witness statement and associated files which I received from the court and Drydens. I’ve had to split it due to the overall size.

Do I need to respond to this or just turn up in January?

I have been doing a lot of reading and rereading of others experiences

 

Claimants WS.pdf

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No, not done WS (didn’t realise I had to, no mention of it in court paperwork, only date to appear. Assumed my original defence was enough). Court hearing is 16th January 2024.

Am rereading and rereading but there does seem to be differences.

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Unfortunately, due to the whole family getting Covid at the beginning of December and still getting over it, I hadn’t had chance to fully go through my paperwork and get it photographed and uploaded until now.

The only other thing not uploaded is the Notice of Hearing of Application (the N244 was uploaded in post #61.

I’ve been looking through the experiences of RC710, Pellegrino and others, and it seems like the judges can swing one way or the other so I don’t want to solely rely on the SB argument.

is it worth adding the fact that I never received any deferment paperwork or their other paperwork until 2018 when I received a letter from Drydens (which was immediately followed by an SAR by me) as I had moved several times and didn’t even know who Erudio were? 

I’ve double checked the paperwork from the SAR and there are no letters which mention how to defer!

Also, I have never earned over the deferment threshold, and would have continued to defer given the chance until the loan matured in 2019? I was ill and on Incapacity Benefit until 2013 and attempted to get the deferment extended (can’t really remember what SLCs response was to that at the time, around 2010).

Thanks in advance for any advice (I really need the help at the moment)

 

Notice of Hearing_compressed.pdf

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I just logged into the SFC portal and can see a list of letters sent out (allegedly) showing advocates mortgage style statements which were reproduced in 2018, covering 2002 onwards (this was around the date of the SAR to Erudio) and End of Deferment packs apparently sent up to Feb 2013, none of which are available to view.

Should I be including the proof that I was under the deferment threshold (self employed, so these will be copies of SA105) or is that overkill? Same with the deferment thresholds as I had to scour the internet for these figures from 2013 onwards and the sources are not from just one place?

Also noticed that the letters sent were always sent to the last address 12 months after moving. What database do DCAs use to locate people’s addresses and how up to date is it?

 

Student Finance Account - Emails and Letters.pdf

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Not there, only my name and address

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Been looking at Nurselayer’s experience and am concerned with the way the judge effectively dismissed the limitations argument.

Also been looking at Doyle vs PRA Group judgement and was wondering how it would affect the BMW vs Hart argument, as it does seem to back up the same arguments being used by Drydens. An article on Shelter has this…

 

D argued that using default notices pursuant to section 87(1) to recover old stale debts would allow lenders to artificially extend the six year limitation period sidestepping the protections given by the LA 1980. The court did not consider the relevant policy arguments to be carrying any material weight. The court acknowledged that the County Court's interpretation of section 87(1) means the debtor is potentially exposed to a long-delayed claim for sums outstanding under the credit agreement; however, that it is no different from the case of a loan repayable on demand.

In such a case, the creditor’s cause of action only arises if and when the creditor makes a demand. That is implicitly recognised in section 6 of the LA 1980. The court in this regard also agreed with the original judge that sections 140A and 140B of the CCA enable the court to remedy any abusive conduct by the creditor in artificially extending the limitation period by delaying service of the default notice. Accordingly, it stated that it is not necessary artificially to interpret section 87(1) and to analyse its impact on the rights of the parties under the agreement to avoid the possibility of excessive delay and consequences for the debtor of such excessive delay.

The court noted that section 87(1) was rather intended to confer a benefit on the debtor under an agreement regulated by the CCA. It undoubtedly does so since it provides a debtor in default with the opportunity to remedy and expunge for all time that default.

How do I spin this in my favour?

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Will click the linky

I’m hoping the judge isn’t swayed by Dryden’s lacky, but will try and get onto drafting up a response to their witness statement (I keep going through the paperwork and finding little things such as an unsigned agreement by SLC)

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Just a quick question, when would the cause of action begin accruing? Would it be the date of the last deferment (April 2012) or the date which the new deferral would either take effect or repayments begin if refused, which would have been April 2013?
 

Just trying to get my WS straight before sending it off.

Thx

[europa16]

Thanks for that, I’ve sorted out my Witness Statement, although it’s rather long!

is it okay?

In the County Court at Lincoln
16th January 2024 at 2pm.
Erudio Student Loans Limited (Claimant)
V
 (Defendant)
Claim No:

Witness Statement
1.I xxxxxxxxxxxxxxx, being the Defendant in this case will state as follows;

I make this Witness Statement to oppose the claimant application dated 3rd October 2023 to lift the stay and Strike Out Defence/Summary Judgment pursuant to CPR 24.5(1) a & b in view of my defence submitted to the claim dated 28th May 2019. The claimant confirms that the claim was issued through the Civil National Business Centre on 3rd May 2019 and remains stayed ever since.

I will respond to the same numbered paragraphs as the claimant’s statement as follows:

2. The claimant's witness statement opening paragraph confirms that it mostly relies on hearsay evidence as confirmed by the draft’s person in the opening paragraph. It is my understanding that they must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act and also be in attendance at hearing to give evidence in support of the claimant’s witness statement.

Background

3. I was initially contacted by DrydensFairfax Solicitors in September 2018 with a “letter of claim” claiming to be instructed by Erudio Student Loans Limited (pg 18 of SR1). I had never heard of either of these companies, and until September 2018 I never received any documentation from Erudio Student Loans Ltd. I was never made aware that the UK Government had sold my account, along with 250,000 other pre-1997 deferred or in arrears student loans to a debt collection agency & private consortium.for less than 18% of the value.

4. In May 2019, on receipt of the claim form (pg 20 of SR1), dated 3rd May 2019, I sought clarity from the claimant’s solicitor via a CPR 31.14 request, on 13th May 2019, requesting a copy of the original agreement, a copy of the terms and conditions as applicable at the start of each agreement, a copy of any default notice or termination notice, and a copy of the legal notice of assignment showing their right to take action.

5. The claimant’s solicitor responded, letter dated 22nd May 2019, confirming they were liaising with their client for the relevant documentation (pg 24 of SR1).

6. On or about 22nd June 2019 I received a letter from the claimants solicitor stating documentation was enclosed (26 of SR1). The address used by the claimant on the Notice of Assignment I received was out of date - although I had had a Royal Mail Redirection Service active for 6 months, it appears the document was allegedly sent to my old address just weeks after it ran out. It also refers to my account still being deferred, which as I last deferred in April 2012, I believe is incorrect. Again, the address for the Default Notice and Termination Notice were out of date - a Redirection service was in place for this address, however, again it appears from the dates on the letters, they were allegedly sent weeks after it ran out. 

7. The Claimant then failed to further communicate with the court or the defendant, and following the standard time limit after my defence filing their claim became automatically stayed.

8. On or about 2nd August 2020 I received a letter from the claimant’s solicitor (pg 28 of SR1) acknowledging my defence and asserting their position regarding the alleged debt being statute barred.

9. On or about 4th July 2021 another letter was received from the claimant’ solicitor with a request for payment, and income details should I wish to enter a payment agreement via a Tomlinson order, at my expense, to avoid further court action (pg 31 and pg 33 of SR1).

10. On or about 24th July 2021, a further letter was received offering the above, along with an offer to settle for £2038.90 (pg 39 of SR1) 

11. On or about 7th March 2022, the same letter was sent but with a revised, increased, settlement figure of £2094.40 (pg 47 of SR1).

12. On or about 18th May 2023, another letter was received referring to my statute barred defence to the claim, with an outstanding amount different to the amounts on their previous letters (with no explanation). Here, they confirmed they would be using the BMW v Hart defence (pg 55 of SR1).

13. On or about 8th June 2023 (pg 64 of SR1) and also 9th July 2023 (pg 66 of SR1), identical letters were received referring to the above letter. I wrote to Drydens Fairfax on 14th July 2023 to confirm I didn’t not acknowledge their alleged debt, to confirm my position with regards to the fact the debt was now Statute Barred, and my reasoning. I also pointed out why their use of BMW v Hart was flawed (pg 70 and pg71 of SR1).

14. The claimant’s solicitors final letter (pg 68 of SR1) confirmed they would be seeking their clients instructions with regards to applying for a Strike Out and Summary Judgment, some 4 years after their initial claim was issued (pg 20 of SR1). 

Defendants Response to Claimants Application

15. In response to Paragraph 7, the agreements referred to in pg 1 to 6 of SR1 are illegible due to age, as per the Claimant’s own admittance. 

The terms and conditions on the rear of the agreement on page 1 are not the original, they do not match the T&Cs on the later agreement (pg 4 of SR1), which do appear to be original despite their illegibility, due to the barcode & it referencing the direct debit instructions. 

The “blank” reproduction of the Terms & Conditions (pg 5 of SR1) is dated 27/8/1997 in the bottom left. They do not appear to match that of the original. 

Furthermore, one of the agreements is not signed by the originating creditor (pg 1 of SR1) therefore are unenforceable pursuant to S.61/65 of the Consumer Credit Act 1974;- 

s61 Signing of agreement.
(1)A regulated agreement is not properly executed unless—
(a)a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and
(b) the document embodies all the terms of the agreement, other than implied terms, and
(c) the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

S.65 Consequences of improper execution.
(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.
And therefore pursuant to sec 127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

16. In Paragraph 9, it is claimed a Notice of Assignment was provided to the defendant by the claimant under s136 of the Law of Properties Act 1925. As this was allegedly sent to my previous address, it was not received. There is also referenced within the Notice of Assignment to a transfer letter from the Student Loans Company. This is not within the claimant’s evidence bundle. also, I do not understand the reference to 22nd June. Any documentation relating to this date is missing.

17. In Paragraph 10 and 11, the claimant claims to have sent a number of deferment letters. These were never received and the claimant has not provided any such letters to prove they exist. Further alleged reminder letters have also never been received, nor provided by the claimant to prove they exist.

18. In reference to Paragraph 12 and 20.2, the claimant claims to have issued a Default Notice on 24th May 2016 (pg 8 to 11 of SR1). This was issued to an old address, which I had not lived at for 8 months, and therefore never received (as stated in point 6 of this Witness Statement).

Furthermore, in reference the following points:

12.1 Further to our previous correspondence on and in accordance with the Repayments section of your loan agreement(s) ("Agreements)) with the Account Number(s) set out above, you are required to make monthly minimum repayments on your account.

12.2 In accordance with Condition 4.1 of your Agreement(s), you are in breach of your Agreements) because you have not made the required monthly payments as they fell due each month, and your account is now in serious arrears.

If an account is in Deferment, then no payments would be due until such time as Deferment is refused, for example if income exceeds the minimum income threshold for pre-1997 Mortgage-Style accounts.

With reference to point 17 of my Witness Statement, had I been told by the claimant of my ability to defer and given the documentation to allow me to do this, the loans would never have become due for payment, would never have defaulted and could not then be terminated.

The loans would also have naturally been written off in 2019, as per s8 of the terms for pre-1997 student loans; if you were under the age of 40 when signing up AND your loans were taken out before the end of 1997, they are written off after 25 years from when the last loan was taken out, or when you reach the age of 50, whichever is the soonest (pg6 of SR1)

12.3 In order to remedy the breach, you must pay the arrears amount due of £1,170.88 by 21 June 2016. The claimant has not given any indication as to how they arrived at this figure.

19. In Paragraph 20.1, the claimant states they are relying on BMW Financial Services v Hart (2012) EWCA Civ 1959 where where the Court held that limitation does not start to accrue until the agreement is terminated due to non-compliance with a default notice served pursuant to section 87 of the act.

The above case dealt with an unregulated Hire-Purchase agreement with specific wording within the agreement. The facts of the case and the terms of the Hire-Purchase contract, of which the claimant is relying on, are fundamentally different to the agreements in which this case refers to, in that Mortgage Style Student Loan agreements are Regulated under the Consumer Credit Act 1974, and without specific terms to the contrary within the contract there is nothing to suggest that the cause of action was accrued at any point other than the original breach of the agreement. This was the date my last deferral with Student Loans Company ended, which was on or before April 2013.

20. In Paragraph 22, the claimant states that the matter was initially placed on hold shortly after the Defence was received owing to the Claimant's policy relating to Covid 19. As is widely known, Covid 19 did not affect the UK until March 2020, and the courts were still open and operating, albeit with remote hearings for a time. All restrictions in the UK were lifted in mid 2021, over 2 years ago. Therefore, I do not believe this is a legitimate reason for the delay and questions should be asked as to why the claim was made when it appears that the claimant was not ready to proceed.

Conclusion

I put it to the court that the loans are Statute Barred, as per my Defence which was submitted in 2019, due to the last true cause of action being on or before April 2013.

it is unfair for the claimant to issue a Default Notice months or years after the true cause of action, thus choosing to rewrite the definition of Statute Barred under the Limitations Act 1980, which potentially allows them to run ad infinitum.

I believe the act was made in law to ensure individuals would be protected from claims issued long after they should have been made; if the claimant’s claim was to be allowed then any individual would have almost no protection (a position in opposition to the intent of the Limitations Act.

Due to inactions of the claimant, I have been denied the ability to continue to defer the loans previously owned by the Student Loans Company.

As my income has continuously been below the minimum income threshold set by the Government each April, no repayment of the loans would have been required.

As the last agreement was signed in December 1994, according to the terms agreed with The Students Loans Company, Twenty Five years have elapsed and as such this would have written off the loan and cancelled any further liability by myself. 

Therefore, in view of the information set out above, I respectfully request the court deny the claimant’s application.

Statement of truth
I, xxxxxxxx, Defendant, believe the facts stated in this witness statement are true. I understand that proceedings for contempt of Court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Signed:
xxxxxxx
Dated: 4th January 2024

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Sorry, had no idea…

Can you please remove the court name and anything else which will identify me?

Thanks

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You need to stop telling people to use a Statute Barred defence unless the clock started when the Default Notice ran out.

BMW v Hart and PRA v Doyle were both used at my hearing and the judge determined the default date to be the one where the clock starts, irrespective of whether it was a loan, a credit card, a hire purchase.

its not down to a lottery, creditors ARE getting strike outs of defences using this defence.

The judge however gave me the chance to submit an amended defence, despite Dryden’s reps attempts to stop that, and they chucked out their summary judgement. 


 

 

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Had to send WS when I did cos I ran out of time. Amended defence required within 21 days but I have no idea what form to use, etc.

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Sorry but I absolutely needed to send the WS that I uploaded on here on the 4th or else it risked not getting to the court on time (Royal Mail are royally doodoo at the moment, and as the court is 25 miles away I can’t just pop down there!) but the comments made on post Jan 6th would not have made any difference to that defence being struck out.

Weird thing is though, Erudio had my deferment end date as in 2014 on the NOA?

Also, thanks for the link but I can’t work out how Pellegrino’s case is the same; although the Summary Judgement was also refused in his case, the judge instead ordered a Tomlin Order.

in my case, yes the Summary Judgement has also been refused, however it is now going to a full trial hearing in the Small Claims, but only if I amend my defence and send it in within 21 days (4pm on 6th Feb).

Erudio then get 14 days to send whatever it is they are supposed to send (cannot remember most of what was said as my head was in a mess).

Does this go on the N9D form?

Do I need to state that the judge gave me permission to amend my defence, do I name the judge?

I know I should have asked at the time but again, head messed up.

is there any other CAG cases where this course of action has taken place, cos I can’t find one?

If I don’t do this, I certainly haven’t won anything as Erudio would then get judgement, no?

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Sorry that’s me told off…

Been through Pellegrino’s thread forwards and backwards, still can’t see an amended refined defence you mention?