Application to lift stay - what next?

I have received letter from solicitors, dated 10.10.17 :
We enclose by way of service a copy of our Application Notice and supporting evidence which has been filed with the Court today. We have asked the Court to deal with the Application without a hearing as we do not consider a hearing is necessary. Once this has been referred to a Judge, he or she should then either make an Order in the terms requested or they may decide that the application needs to be considered at a hearing. Either way, you should receive an Order from the Court in due course which confirms the decision made.

I have also received notification from local court, dated 4.11.17 that request has been made for summary judgement.

I have not received any correspondence since 5.11.17

this has been stayed for around 18 months. I have ignored all their bs letters. I entered defence of statue barred. They seem to have produced some dubious bank statements to indicate that last payment was made 5 years ago. My records show last payment was lot longer than this, over 15 years ago.

do I need to contact the local court and submit evidence ?

please, all advice appreciated
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  • fatbelly
    fatbelly Posts: 20,380
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    I think it's unlikely that the court will just accept one side of the claim, and award judgement against you (summary judgement) but they might do.

    It's more likely that there will be a hearing and you will be asked to supply any evidence you have to both the court and the claimant (file and serve).

    I don't see any harm in sending your evidence ahead of that part of the process but the judgement will hinge on whether a judge can be convinced that the payments made 5 years ago were made by you or your agent. You need to look at their paperwork closely and if necessary find someone who can help you to interpret them.

    Note it's 'statute barred'
  • thanks fatb.

    appreciate help. I will go over detail, their evidence, and mine this weekend, then make a decision about whether to send in my evidence ahead of the hearing

    letter from court was dated 4.11.17, guess it will be another couple of weeks before I hear anything more ?
  • hi again

    their solicitors have now applied to have the stay removed and initial court hearing is end of March, would you recommend I get a solicitor to act on my behalf, represent me, or has anyone had experience of representing themselves ?

    total sum is around 5k
  • fatbelly
    fatbelly Posts: 20,380
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    You shouldn't need a solicitor. It sounds quite a simple case. As I said before - the judgement will hinge on whether a judge can be convinced that the payments made 5 years ago were made by you or your agent.

    Your paperwork shows no payment made for over 15 years.

    Theirs shows a payment made 5 years ago - the question is what was that payment? If it was some internal correction by them then it is not an acknowledgement by you and does not restart the clock.

    However even if they prove payment made 5 years ago was by you, that still implies a ten-year period with no payment and so the debt would have become statute barred in that period and cannot be revived.

    It's worth having Limitation Act 1980 s29(7) up your sleeve:
    Subject to subsection (6) above, a current period of limitation may be repeatedly extended under this section by further acknowledgments or payments, but a right of action, once barred by this Act, shall not be revived by any subsequent acknowledgment or payment.
  • sourcrates
    sourcrates Posts: 28,717
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    edited 14 January 2018 at 5:53PM
    fatbelly wrote: »
    However even if they prove payment made 5 years ago was by you, that still implies a ten-year period with no payment and so the debt would have become statute barred in that period and cannot be revived.

    It's worth having Limitation Act 1980 s29(7) up your sleeve:

    This bit appears to of passed their "legal experts" by dosent it !!
    I’m a Forum Ambassador and I support the Forum Team on the Debt free wannabe, Credit file and ratings, and Bankruptcy and living with it boards. If you need any help on these boards, do let me know. Please note that Ambassadors are not moderators. Any posts you spot in breach of the Forum Rules should be reported via the report button, or by emailing forumteam@moneysavingexpert.com. All views are my own and not the official line of MoneySavingExpert.For free non-judgemental debt advice, contact either Stepchange, National Debtline, or CitizensAdviceBureaux.Link to SOA Calculator- https://www.stoozing.com/soa.php The "provit letter" is here-https://forums.moneysavingexpert.com/discussion/2607247/letter-when-you-know-nothing-about-about-the-debt-aka-prove-it-letter
  • Arleen
    Arleen Posts: 1,164
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    Whether to get a solicitor or not depend largely on this question: did you make the payment 5 years ago or not?

    If you didn't and can prove their evidence is bogus, don't waste money. If it's not that clear then the solicitor will drastically increase your chance of success.
  • Limitation Act 1980 s29(7)
    thanks fb, that is sound advice, and a very good point about the 10 year gap
  • thanks to others contribution as well, I will keep you updated
  • hi guys, just wanted to update you on a few things

    I am now around 4 weeks out until the court hearing.

    I did recently write to HSBC and ask them to supply a copy of my Consumer Credit Agreement as is my entitlement under sections 77-79 of the Consumer Credit Act 1974.

    their reply was to state 'they did not recognise me on any of their systems' ?

    that is one thing

    I also issued a SAR request to get statements from 2000 to 2010 from them. The 40 day period has expired since this request and I still have not received any statements

    along with preparing my witness statement (to get all my facts straight for evidence) for the hearing in 4 weeks, is using HSBC's recent responses (or lack of), pertinent or admissible in my statement ?

    is this common where they say they do not recognise me on their system ? ( is this because it was so many years ago)

    I am suffering from man flu at mo, feel like crap, apologies if I could have written this update better :(
  • fatbelly
    fatbelly Posts: 20,380
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    If this was an overdraft then you don't really have a case as s77-79 CCA requests do not apply, but if this was a loan or credit card, and you made the request correctly, then any action must be stayed under those sections!

    Strange that they are taking court action but cannot recognise you on any of their systems! Definitely mention this in your witness statement, and the failure to respond to a SAR.
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