Erudio/Drydens successful set a side- now defence

[iabb 0]

Hi guys.

 

Starting to think about my defence well

in advance

 

wasn’t quick enough in court to raise this issue, indeed this is very much a 5am thought. 

 

So the court accepted procedural error under 13.2 (rather than exercising discretion under 13.3) as the claimant had reasonable cause to believe that after 5 years of unanswered correspondence that i was no longer resident and it should have made additional checks   

 

Does it therefore follow that the court will have to accept accept that the termination notice served by erudio in 2019 will also have been deffective and that they have also not complied with the pre action protocol appropriately as the letter before action will also be improperly served and as such they have no legal redress? 

 

If the above doesn’t automatically stand, Their argument against statute barring yesterday was that the cause of action (I.e termination notice issued in 2019 as the loan had matured)  was within 6 years and therefore not statute barred. My argument will of course be that the debt was barred before service of any termination anyway, but if the court was minded to accept that they restarted the clock, would they have to prove that the notice of termination had been properly served? 

 

Lastly for now, I cannot find very much info on matured loans and course of action at maturity that gives rise to valid civil action.  They have only served a termination notice , no default notice. Is this correct? They said as the account had matured they don’t need one, but everything that I can find seems to relate to mortgages and includes a default process? 

 

Sorry its a long one, but thanks in advance 

[Andyorch 10,136]

Issuance of a Default Notice starts the process...not a Termination Notice

[iabb 0]

Thanks Andy, is there anywhere you can signpost me to on in terms of where that is set out so I can read up? Any views on the address point? 

[Andyorch 10,136]

Sections 87 and 88 CCA1974

 

https://www.legislation.gov.uk/ukpga/1974/39/section/87

 

and section 98 CCA1974

 

https://www.legislation.gov.uk/ukpga/1974/39/part/VII/crossheading/termination-of-agreements

 

Address point ?

[iabb 0]

If the court ruled they should have known I was not at the address that court paperwork was served, would that work as far as any termination notice and pre action protocol is concerned too? 

[Andyorch 10,136]

I suppose so...but where it was sent to is irrelevant really with regards to a defence....different for reasons to set a side.Now you have to dig deeper and prove why they are not allowed to enforce the agreement and due process has not been followed.

[iabb 0]

Thanks Andy. I don’t suppose it would hurt to try and make it as a point, but then if court doesn’t agree move on to the enforcibillity issues?

 

ill come back when I’ve crafted an out line defence and have a good read through the links above. Your a star! 

[dx100uk 8,561]

just be mindful that this 'matured' thing is a load of ole … no such thing.

 

[iabb 0]

Thanks DX. Just trawling through section 98. 

 

Any useful pointers on refuting the matured argument? 

[iabb 0]

Ok guys, so I’ve had my bank statements back, and it looks like the last dd to student loans company was 10th September 2013-arrrghhh! 

 

So if they produce a statement of account, it’s likely that this will show, and the amount won’t be statute barred, I took 3 loans over 3 years, so I’m not sure how payments would be allocated or whether the payments were allocated pro data across all 3, although erudio only have 2? Anyway, will wait for statement of account and look at that when it arrives to see whether I have any hope under statute barring. 

 

If that hat is a no go I will then need to argue on the basis of process. 

 

Court already accepted paperwork hadn’t been received and the only notice they issued was a maturity notice in jan 19, then a termination notice in Feb 19. The termination notice does not give a date to remedy the breach-would it help if I posted it? 

 

Credit agreement contains all prescribed terms so is valid, so my defence is likely to be solely based around the process and termination. 

 

If im honest im

struggling with interpreting the wording of section 98, or finding anything on maturity defaults that doesn’t relate to mortgages or default processes 

 

can anyone help? 

 

 

[dx100uk 8,561]

I'll say again

the maturing label is nothing to do with any legal act

its simply a term dreamed up by erudio

means nothing

 

slc payments always had a ref no.

that equates to your account with slc

go ring slc tell them a white lie..

 

you made a payment xxx date

can they check if it got through please as your bank statement is unclear if it was ever credited to them.

 

then ask what 'debt' it came off as you had 3??

[iabb 0]

Will do DX

 

if I redact a copy of the termination notice can you take a peak as well please? 

 

 

[dx100uk 8,561]

no such thing as a termination notice either that relies on some 'matured' loan notion.

 

 

 

[iabb 0]

So how do I argue that effectively in my defence? 

[dx100uk 8,561]

well where is this rubbish about the loan maturing in the slc agreement/ T&C's??

I cant find it so any termination notice is thus bogus.

 

they have 6 weeks to produce their paperwork.

 

I think SB could be a runner here.

 

did you ring slc quoting post 6

if you did make those payments the MUST still hold your data.[within 6yrs]

 

dx

 

 

 

 

 

 

 

[Andyorch 10,136]

Fixed term loans do have a maturity point unlike  running credit, when it reaches the end of the set payments period IE  3 years = 36/5 years = 60/7 years  = 84  payments.

 

But fixed terms loans are also subject to sections 87/88 of the CCA 1974 IE Default Notice and should you default within the given number of payments the loan is then subject to a default and possible termination...so in effect it never reached its set fixed plan or maturity date.....because the default notice would have halted the set term.

 

In the interim the creditor would or should serve a Notice of Sums in Arrears in the event that a default notice was not issued ...then a default notice which can also act as a termination notice ...and then a termination notice if not already terminated by the default notice. 

 

So to say that a loan had passed its maturity date....with no default during the fixed term ..there would be no requirement for a termination notice as the last payment would complete the full term and end the agreement.

 

Andy

[iabb 0]

I’ll post up the notices later so you can see. In work at moment.

 

So far they have failed to produce a default notice  or notices of sums in arrears, only this maturity notice and a termination notice neither of which give any opportunity to remedy a breach or any timescales for doing so 

[iabb 0]

Hi all, me again!

 

So can someone advise me what I do next if they don’t produce the documents set out by the court directions? 

[dx100uk 8,561]

have they not already gone past the deadline ?

[iabb 0]

No deadline is today,

they were given 6 weeks to produce everything including a full statement of account from inception to now.

I then have 2 weeks to amend and serve my defence.

 

Today is their deadline,

if they are true to form I’m expecting something to land today,

but if it doesn’t can I make an application to have this struck out? 

[dx100uk 8,561]

go ring SLC today.

 

under the 

prevention of Fraud act

and

the data protection act

 

slc MUST hold your data for 6yrs.

 

you demand them to either:

 

confirm your last payment date

or

confirm they do not hold your data because the debt is over 6yrs old.

 

if they refuse..

then ask to speck to a supervisor 

tell them immediately you have finished this call you will ringing the ICO and be opening a serious complain against them and be seeking financial compensation.

 

do not take no for an answer.

[iabb 0]

Sorry DX I’m confused, I’ve already done that, they told me months ago they had no data on their systems in relation to their account.

 

the court ordered erudio to produce and they had till today to produce-my question is, if they don’t, is there some kind of application I can make to get their claim dismissed? 

[dx100uk 8,561]

the answer of no data is not good enough and not correct

that's a fob off

I believe they said it was locked and they couldn't access it..that is not correct

its either of the 2 answers ive outlined.

 

we've had this with SLC before numerous times.

threaten the ICO with them.

 

if they cant access the info then that must be confirmed its because it over 6yrs old and thus the debt is statute barred..

 

as for the court ...

give it till Monday and ring the court and tell them the claimant has failed the judges directions.

they should then probably strike it out for you.

[iabb 0]

Spoke to court, no papers lodged with them or me, but judge won’t look at it unless I make an application. Any idea what application I would make? 

[Andyorch 10,136]

Refer back to the order what if anything does it state if either party fail to comply with the order...sanctions ?

 

Andy