Question, regarding cause of action on a statute bar!

[jandia]

.1 is the cause of action on a statute bar the default notice or the last payment / acknowledgment of the debt? Ie the start date?

 

Default Notice: 20/10/2011
Date of Claim: 13/07/2018
Time between dates: 6 years, 8 months
no acknowledgement of debt.

 

Or 

 

20/11/2012 Last payment/acknowledgment of the debt
Date of Claim: 13/07/2018
Time between dates: 5 years, 7 months

 

which would win at Court? thk you

[basildonbond1946]

The date of last payment was the usual way of deciding whether it was S/B. Recently some courts have used the D/N as the criteria for whether it is S/Bd.If your dates are correct they are both S/Bd ie 6 years have elapsed since any payment or acknowledgement of debt. Wait unttil someone more knowledgable responds

[AndyOrch]

First scenario should win...but if you paid after the default note issuance date 20/11/2012..then it cant be statute barred so your first scenario is now irrelevant ?

 

Andy

[EssCee]

There was previously two schools of thought on when the initial cause of action arose in respect of a Consumer Credit Agreement where service of a Default Notice was required (there are occasions where no default notice is required).

 

I have always been of the school of thought that it was the date of expiry of the time for compliance with the Default Notice (though there were substantial arguments for the alternative view).

 

It has now been confimred by the Courts that the creditor's initial cause of action starts to run from the date of expiry of the time for compliance with the [valid] Default Notice (see PRA V Doyle).

 

As such the initial cause of action in the above scenario will commence 20/10/2011 and, per S29 - 31 Limitation Act 1980, will be refreshed on the event of each subsequent payment or written acknowledgment of the debt.

 

In other words, if you made payment up to 20/11/2012, cause of action is treated as accruing on that date and it would appear that the debt is not estopped by statutory limitation.

 

I know that is probably not what you wanted to hear

 

[dx100uk]

so you have a claimform?

who's the fleecers

what is the debt.

 

dx

 

[AndyOrch]

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.

 

Cause of Action Accrued= definition = LAWa fact or facts that enable a person to bring an action against another.....IE Breach of Contract.

 

Breach of Contract = First missed contractual payment = accrual of cause of action

 

Therefore I think it can be interpreted in different ways and until such time the Limitations Act 1980 is reworded to state " from the date on which the Default Notice was issued " its open to debate and not that of Judges in the PRA V Doyle case interprets it as.

[EssCee]

Depends entirely on the nature of the contract, the nature of the breach and of the claim. A contract may require Notice of Breach, or a Demand in order to bring terms in to effect and missing a payment may not be a sufficient breach (not of the essence) as to give rise to a claim for termination/repudiation or indeed anything other than payment of the missing instalment and nominal damages.

 

In terms of Consumer Credit debt, Doyle binds the Court in all matters, otherwise than where a debt is payable on demand. We must be talking about debt other than payable on demand here, given the OP's reference to a Default Notice, in which event S87 acts as a statutory bar to cause of action arising for anything other than arrears.

 

Cause of Action in a claim for accelerated recovery of the balance of the debt owed can only arise upon expiry of the Default Notice (S89 providing that if the Notice is complied with it is treated as though default never occurred).

 

Being a Court of Appeal decision, its binding on both the County and the High Court. It was not the decision of "one Judge" it was the decision of the Master of the Rolls and two Lord Justices, Flaux and Jackson. The OP asked which scenario would win in Court, if we are talking consumer credit, unless he fancies taking it to the Supreme Court, challenging the decision of very eminent Judges in the Court of Appeal the finding Doyle will be the precedent followed.

 

 

[dx100uk]

there is to date no any concrete evidence here in all the claim threads since that date of anyone losing simply because of the ruling.

 

it's just another tool that fleecing DCA's sometimes choose to rockout when it suits them to try and convince their present mug to pay up.

 

[EssCee]

Its a determined point of law. Of someone argues purely limitation on facts where the default notice expired within 6 years of the claim being issued they will lose it's that simple. 

 

If they take other points (for example the agreement is unenforceable for want of a prescribed term) and win on that it doesn't detract from the limitation argument being wrong in law.

[dx100uk]

i said dca/debt buyer claimant, not a defendant..using the ruling. that would be suicide for a defendant should the ruling apply to their debt type/circumstances.

 

i stick by what i said, it's just another tool quoted by fleecers to try and convince a debtor they don't stand a chance and let us mug you.

 

[BankFodder]

@EssCee Would you mind posting a link to the authority for this please.

[EssCee]

https://www.bailii.org/ew/cases/EWCA/Civ/2019/12.html

 

Here you go fodder.

[BankFodder]

Thank you. I wasn't aware that the case had reached the court of appeal

[EssCee]

That's what forums are for, learning and sharing knowledge

[dx100uk]

fodder ...I know you don't visit our FLI forum much but we've already dealt with several cases where this got included.

when necessary its also included in our std defences and Witness statement should the fleecers try and use it.

and there are numerous threads including posts from our many CAG detractors that tried to disrupt us when giving our advice regarding such

 

the bottom line is typically the original creditor didn't default the debt in a timely manner , that usually shuts them up, or the fact that its a ruling that appears to effectively give the OC permission to run the SB date to infinity by not registering a default in a timely manner when they ofcourse must.

 

its not changed anything really other than what I have already said.....

 

to say its cast in stone and by defacto a guaranteed win in law or by default is somewhat an over statement ...

 

dx

 

[EssCee]

It has determined the date from Which cause of action arises for the purpose of the limitation act. In that respect it is cast in stone barring an appeal to the supreme court

 

Arguments can be made where there is some egregious delay in issuing a default notice that it gives rise to an unfair relationship under s140 cca but that's a different argument, though one touched on in Doyle and which a district judge would likely find persuasive when considering any prejudice asserted.

 

As an aside registering a default with a CRA is an entirely different matter to a creditor issuing a s87 default notice.

[dx100uk]

A dn must be proved to have been issued for litigation to ultimately succeed and if data concerning that DN itself is suspect it seriously questions how far the stone has been cast and what bearing the whole thing has in case.

 

bit like the infamous BMW case where DCA's and their solicitor cohorts championed it as ground breaking, but again that's now proved to be not the jolly roger they made it out to be.

 

i'll say it again as I wouldn't want readers to believe otherwise...it's just another tool quoted by fleecers to try and convince a debtor they don't stand a chance and let us mug you.

 

[EssCee]

Bmw v Hart re unregulated hp has little application in the Times. We cha agree to disagree.

[fletch70]

While I think Doyle will be used by many a DCA particularly if they are against a LiP, it really does depend on each case. For example, my old Capital One card gave a very specific process which outlined what would happen prior to a DN being issued and pretty much when it would be issued. As it happened they didn't issue a DN and Lowell lost in court.

 

Peoples opinions change rapidly on forums and I can't remember who said what about BMW v Hart although my view was always, to be on the safe side , the initial COA was the remedy date for a DN. Don't get me wrong, I would have tried six years from the date of the first missed payment if I had to but luckily I never did.

 

I think it is always very easy to play fast and loose with other people's claims , after all, the only thing that we will suffer if they lose, is our pride. If someone wants to defend a claim and they honestly have a case, all we can do is advise. 

 

I also would, if possible take more than just limitations into court - you only need one thing to be on your side and you win- it is up to the DCA to prove they have all their ducks in a row. There is a lot more to enforceability than just the agreement.