Erudio Claimform - Old Student Loans - poss Statute Barred.

[dx100uk]

You are not filing a defence you are filing a statement of objection to an n244

 

Dx 

[Nurselayer]

Ok, but what exactly do I put on the wording and does it need a statement of truth etc?

[dx100uk]

On 05/10/2020 at 20:15, Nurselayer said:

 it was the 25 years thing that I was thinking of, I hadn't realised you couldn't do that if you were behind in either payments or deferments.
 

you can sometimes...I'm actually wondering if it might be worthy to mention the auto write-off rules too. On your statement you can add pertinent thinks before your truth statement, which you do sign and copy to claimants sols i believe..

 

Await @Andyorch to pop in.

 

When is it due?

 

On 05/08/2022 at 12:11, Nurselayer said:

Interestingly they have also included a reconstituted Notice of Assignment as evidence.  I have previously stated that I never received a Notice of Assignment and I think that the fact that they are saying that this is reconstituted means that they never sent the original.

 

Strengthens your noa mention.

 

Dx

[Nurselayer]

Hearing is next Friday, so with Bank holidays etc I really want to get this posted to them tomorrow. I shall drop the docs to the court by hand tomorrow too.

[dx100uk]

Just the short statement to counter their application. It's only a 15 min hearing I believe, to see if their application holds water. 

 

If doesn't then game over for them 

If it does, then there will be a full hearing at a later date I expect.

 

Dx

[Nurselayer]

I believe the hearing is scheduled for an hour, although I can't be 100% sure of that. What I want to do is make sure that not only do they not get summary judgement but that I am able to show that their application has not merit. Ideally, at the end of the session, the judge will rule that there is no debt and I'll never have to worry about it again.

Given this, is my proposed opposition above the right thing to submit along with the evidence that casts more than reasonable doubt on their assertion that they sent an NOA (which they never did?). I feel I'm capable in standing up in court and making my points but do I have to have written them down before hand? Is my statement above enough to make sure they don't get summary judgement, as long as I can argue my points or do I need to write them all down?

 
Your advice is not just appreciated, it's loved. Without your help I'd be in no position to argue this, so thank you from the bottom of my heart.

 

[AndyOrch]

18 hours ago, Nurselayer said:

Do I need to put a Statement of Truth below that defence? Yes Or any other information, such as my address? No Do I need to sign and date it? Yes hence the statement of truth  Does it need to be witnessed/sworn? No

Do I send that and all the supporting evidence to the court, Erudio and Drydens? To the Solicitors acting

 

 

Application for SJ/SO are in fact like a mini trial and will exceed 1 hour. This is your last chance to stop them so you must include as many points of objections/arguments that will halt their application and let the claim proceed to a normal hearing. You only require 1 valid point to get the judge to be dissatisfied with their proof and pleadings.

 

Revised Statement of Truth.

 

I believe the (claimant or as may be) believes that the facts stated in this [name document being verified] 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.”

[Nurselayer]

Just to clarify where I'm at, I've taken further advice and now submitted everything to the court. I have put down numerous reasons why they should not be given summary judgement. I really don't feel that any one should be solely relying on "statute barred" in cases like this, although we'll find out in a week's time.

 

[AndyOrch]

It would be helpful to other users if you would fully redact and upload a copy of your final statement Nurselayer.

 

Andy

[Nurselayer]

Redacted copy of the Witness statement attached.

 

Interestingly I have also found that when Erudio Student Loans replied to my CCA request they only sent the first page of each agreement.

 

On each it refers to "as the terms and conditions of the Agreement as set out on this page and overleaf". 

They never sent me the "overleaf" part,

 

I think that this constitutes a breach of CCA 77.1 and I'm going to push that as such CCA 77.4 would apply.

 

I've emailed the docs to both the court and their solicitor asking for them to be taken into account even though they don't appear in my witness statement.

I am currently working on all the points that I intend to bring up in court on Friday and shall post them on here before I do.

Redacted Copy of Defense.pdf

[dx100uk]

its a witness statement not defence 

i thought you were going to also inc the default notice years late get out SB defence in there to address the 2 precedence cases?  

not just the std SB defence text.

 

it is not fair that a claimant/OC can issue a default notice months/years after the true cause of action thus choosing to rewriting the definition of statute barring under the statute of limitations act and can run this date to infinity .

 

alternative whereby claimant intimates SB date=defaulted date and that has been registered months after the last payment
.
1 The Claimant's claim was issued on dd/mm/yyyy.

 

 2.The date of the last deferment letter was dd/mm/yyyy 

 

 3.The Default Notice was issued dd/mm/yyyy and served several months/years after the initial breach thus the cause of action delayed by X months and the Limitations period prolonged to 6 years and X 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.

 

 4.Therefore 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 act 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.

 

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

 

 

[Nurselayer]

I shall be making the points you have mentioned verbally in court DX. I'm currently working on the full transcript of what I intend to say and will post it up here once I've completed it.  I will also be citing some of the findings in Doyle v PRA which I believe show that both that case and BMW v Hart are not relevant in this case. 

 

[dx100uk]

Hart was Hire Purchase (lorry) agreement under the CCA - not applicable

 

doyle was on a credit card agreement under the CCA which has a running date of settlement dependent upon if the consumer continues to 'spent' the credit.

 

SLC loans are a fixed term loan with defined settlement or write off terms.

 

 

[Nurselayer]

Case is today. Please send me love and support. I'll be honest I'm so incredibly anxious about this. I *think* I've put together a good argument about why they shouldn't have Summary judgement and why the debt is unenforceable but I'm still worried about how it might go. Will update after the hearing. 

Anything I should know about court procedure apart from not to discuss my defence with their lawyer?

Huge thanks for all the help so far though - particularly to Andyorch and Dx100uk.

Fingers crossed!

[dx100uk]

yep no little chats before you walk in

smile walk away.

 

statute barred, their example cases mean nothing relevant.

stick to your statement.

 

dx

 

[Nurselayer]

They've told me they are going to tell the judge to ignore my witness statement as they didn't receive it in time. Urgent help please.

[AndyOrch]

Ignore as long as the court got theirs on time sounds like they are miffed for some reason 

 

 

.

[dx100uk]

Dryden's rep have pulled that stunt several times on many cases already std ploy!

 

They know SB is going to kill them dead.

Stick by it 

 

 

 

Dx

[Nurselayer]

Ok, just out of court.

The bad news is that I didn't win....the good news is that neither did they!

In short the judge decided that it was far too complex a case for her to decide in a 30 minute hearing and has adjourned it and directed the claimant to submit skeleton arguments in advance of the rescheduled hearing which will be allocated 90 minutes.

I'll type up a longer and more detailed version of events once I've had a cup of tea!

[dx100uk]

Probably a good thing.

 

Itll make them reveal how deep they are trying to confuse a judge that those rulings apply to a debt they were never adjudged over nor concerns such a debt like an slc loan.

[Nurselayer]

 I arrived at court 30 minutes before the hearing.

Their representative, Imogen Watkins, a County Court Advocate from LPC Law, came and spoke to me when I arrived.

She explained that she was not from Erudio or Drydens but had been taken on to represent their case.

She advised me that her client had instructed her to ask the court to disallow my witness statement as it was received later than it should have been.

I explained that should the court disallow it I would make an N244 Relief from Sanctions application, I also said that I thought that the court would allow my witness statement as the overriding directive would be to deal with a case justly and proportionately.

She then asked me if I was standing by my assertion that the claim was statute barred and I said that I was, and that there were other reasons in addition that this claim should not be allowed.

She then presented me with the Claimant's Statement of Costs and said that should she receive judgement in their favour these were the costs I'd be liable for.

She thanked me and went over and sat and had a chat with other lawyers about all manner of things apart from my case in the waiting area.

I sat, waited, posted my urgent request for help above and fretted for an hour until we were called into court.

The judge told the claimant's rep that she didn't have a copy of my initial defence in her bundle, nor did she have my witness statement and evidence that went with it.

I explained that I had delivered it by hand to the court and she said that it was common that stuff didn't get attached to the relevant cases.

The oppo's rep then provided the judge with copies of both my initial defence and my witness statement. 

Their advocate then put to the court that these documents hadn't been submitted in time and as such no reliance should be placed on them.

I countered by saying that on the Notice of Application the only direction was that "If the applicant is represented by a solicitor, the solicitor must file a hard bundle for use by the court at the hearing 3 working days before the attended hearing."

Given that this was the only direction made by the court this must supersede any other time limits. 

The judge looked at the Notice of Application and said that this was just a standard clause and it didn't supersede any other time limits,

however she then went onto say that this may all be irrelevant as she was not convinced that she would be able to make a ruling on this case during this hearing as the case looked too complex to be decided in 30 minutes, as such it would be a moot point if this was her decision.

She asked the advocate if there was a skeleton outline of the claimant's argument and the advocate advised her that all she had was the claimant's witness statement.

The judge then asked the advocate to make her submissions. The advocate presented the judge with a copy of the ruling in the BMW v Hart case and proceeded to argue that the cause of action was the termination of the agreement.

The judge quickly picked up on the fact that this case referred to a Hire Purchase agreement, the advocate said that this was the same sort of contract that I had regarding my student loans.

I chimed in here and said, "It absolutely is not." The judge then said that she'd like to hear the advocate's submissions and that then I would be able to counter them.

I apologised to the judge and the oppo for not being conversant with court proceedings and the judge was very kind and relaxed about it. 

The oppo suggested that Student Loans were the same as a Hire Purchase agreement as there was an obligation to pay a set monthly amount over a set term.

The judge said she had reservations about whether this would apply to my case as surely there would be different rules and regulations set by different statutes and laws as these were not identical cases.

She then asked the advocate if there were any terms in the original contract that would apply directly to govern this.

The advocate said that there weren't and that there was no direct case law that had been ruled on about Student Loans regarding this.

The judge then asked what protection the debtor would be given under the contract, the advocate said that she didn't feel able to answer that.

The advocate also mentioned the notice of assignment as proof that they had the right to litigate in this matter. The judge then went on to ask whether Student Loans should be written off 25 years after the agreements had been made, the oppo argued that this would only apply if the account was not in arrears.

The judge then turned to me. I said, The claimant is arguing that this alleged debt is not statute barred. I contend that not only would this alleged debt be statute barred but also, for numerous reasons, that if any debt was outstanding that it would be unrecoverable.

As such I ask that not only does this court reject any application for my defence to be struck out, summary judgement and a costs order but that the claimant withdraws any claim, either now or in the future, against me

.In point 18.1 of the claimants witness statement the claimant attempts to rely on BMW Financial Services v Hart and in 18.2 of the same statement they assert that Doyle v PRA applies to this case.

BMW Financial Services v Hart was a case that centred on a Hire Purchase Agreement between the two parties.

A hire purchase agreement is a completely different type of contract to that which I entered into with the Student Loans Company Ltd (not Erudio Student Loans Limited as I have never entered into any agreement with them) and as such has no relevance to this case.

In the Doyle v PRA Group case PRA had attempted to rely on the ruling given in BMW Financial Services v Hart.

In point 29 of the judgement in Doyle v PRA Group, the presiding judge, Sir Thomas Etherton said about the attempt to rely on BMW Financial Services v Hart,

“the facts, and in particular the terms of the contract, in that case were materially different from those in the present case. It is not necessary to place any reliance on it.” 

Whilst I contend that the case in front of the court is fundamentally different from Doyle v PRA Group, it is clear that BMW Financial Services v Hart is even further divorced from this case, a fact that the claimant must have been aware of.

In my opinion not only is any attempt for the claimant to rely on BMW Financial Services v Hart doomed to failure but it is a reckless angle for them to take and is nothing more than an intimidatory tactic by the claimant.

The judge considered my point and said that she could see why the claimant had placed reliance on BMW v Hart and that whilst she might not agree that it applied, it was fair for them to use it in their claim and that it was not an intimidatory tactic.

She went on to say that it was clear that this case was going to be too complex to rule on. 

At this point I said that the oppo had mentioned a Notice of Assignment and had submitted it as evidence to the court,

I said that I believed it was neither true nor faithful and that I had evidence which would throw severe doubt on its authenticity.

The judge then asked if this had been in my initial defence. I said that it hadn't as I was only provided with the NOA when Erudio made the submission for statutory judgement.

The judge said that if I wanted to pursue this, or other grounds for defending the claim I would have to make an application to vary my defence to the court.

She was very clear that any application to vary a defence should be made as soon as possible and should explain clearly why this hadn't been included in my initial defence.

The judge then continued to explain that this case was too complex to be heard by her in this hearing and that she would require the claimant to file and serve a skeleton argument 14 days before a rescheduled hearing which would be sometime after 28 days and that should I wish to respond to their argument I had to file and serve 7 days before hearing.

The judge asked me if I was happy with that and I said I'd have been happier had she thrown out their case but it'd do.

She asked the oppo lawyer if there was anything else she wanted and the oppo lawyer asked for her costs to be awarded, the judge refused and said that costs would be reserved. 

The judge then suggested that both parties might be better off making a settlement even though it might not satisfy either party, it could possibly prevent a costly loss for either.  

We both thanked the judge and that was that...for now.

[dx100uk]

good job.

 

next time do as told do NOT converse smile saying i've no wish to hear your legal frighteners nor bogus costs sheet (its small claims court!)...WALK AWAY. they will do it everytime.

 

all those 3 are classic stunts they pull and of course its done to panic a LiP (you) and guess what ...you fell for it hook line and sinker...! you came up here and panicked.

 

3 hours ago, Nurselayer said:

The oppo suggested that Student Loans were the same as a Hire Purchase agreement as there was an obligation to pay a set monthly amount over a set term.

 

there is NO obligation to pay a set monthly amount! what twaddle, thats only if you earn over the threshold, and there is a written off no pay clauses too!! conversely there is no such clauses in an HP agreement that says you dont have to pay for xxx mts if you dont earn enough dosh!! nor that if you havent paid by xxx date, the debt is written off!! how stupid an argument.

 

 

 

[Nurselayer]

So, my next job I guess is to submit an application to amend my defence so that it includes the fact that no NOA was sent, that Erudio have not complied with s.77 of CCA and that Erudio have broken so many terms of the CCA as to make this an unfair contract. 

The judge seemed very clear (without being able to advise me) that this is what I should do and to do it as a matter of urgency.

I shall still keep the statute barred defence in there.

 

Next question - how do I apply to amend my defence?

I've tried googling and all I can find is the rules regarding it but not how to actually go about it.

 

[dx100uk]

nope

you only need to respond with a rebuttal statement if you like

 

6 hours ago, Nurselayer said:

The judge then continued to explain that this case was too complex to be heard by her in this hearing and that she would require the claimant to file and serve a skeleton argument 14 days before a rescheduled hearing which would be sometime after 28 days and that should I wish to respond to their argument I had to file and serve 7 days before hearing.

 

your main thrust will still be the debt is statute barred.

that basically nulls out any other issues, if ruled so.

 

should their skeleton argument contain issues that are 'untrue/irrelevant' to SB then you respond to each and then outline your outstanding issues of no NOA etc and no CCA and their conduct within the Act.

 

however you need to await their skeleton to begin the whole process

[whitelist]

Following this thread with interest because of the reliance on Doyle v PRC from the claimant.

 

BMW v Hart is a dead duck and irrelevant

 

Since the Doyle v PRC judgement, we accept that the cause of action is from when the Default Noice expired unless an unfair contractual relationship with that Default Notice. Section 140A CCA 1974.

 

With relevance to this thread, and old style student loans are not my thing and quite modern in my circumstance, so apologies for any errors as this is my opinion?

 

Believe with the old style student loans, it did not regulate them under the CCA 1974 Protections, so negates the necessity of a Default notice.

 

 Doyle v PRC is not relevant?