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  • FIRST POST
    • grabbit44
    • By grabbit44 7th Oct 17, 1:37 PM
    • 14Posts
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    grabbit44
    CCJ on Statue Barred Debt
    • #1
    • 7th Oct 17, 1:37 PM
    CCJ on Statue Barred Debt 7th Oct 17 at 1:37 PM
    I had an Argos Store card taken out May 2007 - last payment 06th January 2011 - DCA issued claim 18 April 2017. So no payment or acknowledgment for six-years and 3-months to claim being issued.

    I received a letter before action from the DCA that did not relate to the Credit card in question, so I sent a pre-action Protocol request for information that took six-months to reply, then only enclosed a Credit Card Agreement (minus separate T&C's) and some statements - no other Documents such as DN or NOA included, but action still threatened.

    I looked at Noddle and discovered that 4-years of account history was missing for this debt - the claimant in their WS said they had reported on this account since taking it over from June 2014 - but there was nothing there at all for 2014, 2013, 2012, 2011.

    I did a lot of research on various forums to prepare my defence where I Mentioned the Claim was illegal as the account was SB under the limitations act s.5 and should be struck out - the claimant changed Solicitor and I received a repeat of the Docs plus a reconstituted NOA that had no account number at all and could have related to anything, twinned with a letter dated the same date 18 July 2014 from the DCA, both never received. The claim continued and I made a good WS. The claimant WS enclosed Documents that now included a reconstituted DN dated 16th May 2011 that also had no account number it was just a template saying I had to pay 240.60, this only brought amount down to credit limit and nothing more for the missed payments. (Penalty fees of 12 each were included within that sum).

    At the hearing the Claimant's Advocate produced bundles on case law - none of which were even looked at. I argued all the points and emphasised the account was statute barred and that the serving of a DF was only a procedure, not a cause of action - but the Judge compared this account to a HP agreement as being the same thing and as the DF notice was 16th May 2011 and the claim issued 18th April 2017 he said he said the six-years clock ticked from the issue and the claimant was just in time! I proved with a water bill that I had moved address and a new tenancy started 16th May 2011, I never received any DF notice and it has to be delivered to be valid. He was satisfied it was served. I asked it he did not want to see a copy of the DOA as there was doubt of ownership of this account and he said not necessary.
    The Claimant's Advocate asked for costs of his attendance due to MY behaviour! I asked to appeal and the Judge said NO. when writing up the order the Claimant's Advocate reminded hm No appeal.

    I want to appeal this -
    Last edited by grabbit44; 11-10-2017 at 4:45 PM.
Page 1
    • zx81
    • By zx81 7th Oct 17, 2:33 PM
    • 13,691 Posts
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    zx81
    • #2
    • 7th Oct 17, 2:33 PM
    • #2
    • 7th Oct 17, 2:33 PM
    If the lender sent the default notice to the last known address, that's ok.

    From what you say therefore, the CCJ was within the 6 year window.
    • MothballsWallet
    • By MothballsWallet 7th Oct 17, 3:48 PM
    • 11,323 Posts
    • 14,862 Thanks
    MothballsWallet
    • #3
    • 7th Oct 17, 3:48 PM
    • #3
    • 7th Oct 17, 3:48 PM
    zx81: So, if the DCA finds the OP's new address, the OP can send them a "it's statute barred, go away" letter?
    Always ask yourself one question: What would Gibbs do?
    Married to an immigrant.
    • footyguy
    • By footyguy 7th Oct 17, 4:47 PM
    • 3,690 Posts
    • 1,470 Thanks
    footyguy
    • #4
    • 7th Oct 17, 4:47 PM
    • #4
    • 7th Oct 17, 4:47 PM
    I had an Argos Store card taken out May 2007 - last payment 06th January 2011 - DCA issued claim 18 April 2011. So no payment or acknowledgment for six-years and 3-months to claim being issued.

    I received a letter before action from the DCA that did not relate to the Credit card in question, so I sent a pre-action Protocol request for information that took six-months to reply, then only enclosed a Credit Card Agreement (minus separate T&C's) and some statements - no other Documents such as DN or NOA included, but action still threatened.

    I looked at Noddle and discovered that 4-years of account history was missing for this debt - the claimant in their WS said they had reported on this account since taking it over from June 2014 - but there was nothing there at all for 2014, 2013, 2012, 2011.

    I did a lot of research on various forums to prepare my defence where I Mentioned the Claim was illegal as the account was SB under the limitations act s.5 and should be struck out - the claimant changed Solicitor and I received a repeat of the Docs plus a reconstituted NOA that had no account number at all and could have related to anything, twinned with a letter dated the same date 18 July 2014 from the DCA, both never received. The claim continued and I made a good WS. The claimant WS enclosed Documents that now included a reconstituted DN dated 16th May 2011 that also had no account number it was just a template saying I had to pay 240.60, this only brought amount down to credit limit and nothing more for the missed payments. (Penalty fees of 12 each were included within that sum).

    At the hearing the Claimant's Advocate produced bundles on case law - none of which were even looked at. I argued all the points and emphasised the account was statute barred and that the serving of a DF was only a procedure, not a cause of action - but the Judge compared this account to a HP agreement as being the same thing and as the DF notice was 16th May 2011 and the claim issued 18th April 2017 he said he said the six-years clock ticked from the issue and the claimant was just in time! I proved with a water bill that I had moved address and a new tenancy started 16th May 2011, I never received any DF notice and it has to be delivered to be valid. He was satisfied it was served. I asked it he did not want to see a copy of the DOA as there was doubt of ownership of this account and he said not necessary.
    The Claimant's Advocate asked for costs of his attendance due to MY behaviour! I asked to appeal and the Judge said NO. when writing up the order the Claimant's Advocate reminded hm No appeal.

    I want to appeal this -
    Originally posted by grabbit44
    I don't think you can as you say you have already asked the judge for leave to appeal, and were told no.

    But this site is not the place to seek legal advice - I suggest you try a solicitor
    • zx81
    • By zx81 7th Oct 17, 4:52 PM
    • 13,691 Posts
    • 14,160 Thanks
    zx81
    • #5
    • 7th Oct 17, 4:52 PM
    • #5
    • 7th Oct 17, 4:52 PM
    zx81: So, if the DCA finds the OP's new address, the OP can send them a "it's statute barred, go away" letter?
    Originally posted by MothballsWallet
    No - because (if I understand the original post correctly) the CCJ has now been obtained, within the 6 year period.

    However, if the CCJ hadn't been applied for, yes, it would now be statute barred.
    • flower77g
    • By flower77g 7th Oct 17, 5:43 PM
    • 27 Posts
    • 11 Thanks
    flower77g
    • #6
    • 7th Oct 17, 5:43 PM
    • #6
    • 7th Oct 17, 5:43 PM
    " I never received any DF notice ... He [the judge] was satisfied it was served" which is why the case was lost.

    Because it's a point of fact which is in dispute (it was either served or not served) rather than a point of law, an appeal wouldn't help. It's not relevant whether it was received or not; only that it was sent ("served"). Any appeal would have to be made on a point of law.

    The creditor has shown contact within the last six years - sorry.
    • grabbit44
    • By grabbit44 7th Oct 17, 5:43 PM
    • 14 Posts
    • 1 Thanks
    grabbit44
    • #7
    • 7th Oct 17, 5:43 PM
    • #7
    • 7th Oct 17, 5:43 PM
    Thanks for your post - It was a simple contract where the clock starts ticking after the first missed payment - the debt cannot be compared to an HP agreement where it does go from the DN.

    I believe the Judge got it wrong - the claimant knew this debt was SB as this was a simple contract and their Advocate brought a large folder of case laws to the hearing to convince the judge otherwise, but the Judge comparted this simple loan to a HP agreement in any event
    • grabbit44
    • By grabbit44 7th Oct 17, 5:48 PM
    • 14 Posts
    • 1 Thanks
    grabbit44
    • #8
    • 7th Oct 17, 5:48 PM
    • #8
    • 7th Oct 17, 5:48 PM
    " I never received any DF notice ... He [the judge] was satisfied it was served" which is why the case was lost.

    Because it's a point of fact which is in dispute (it was either served or not served) rather than a point of law, an appeal wouldn't help. It's not relevant whether it was received or not; only that it was sent ("served"). Any appeal would have to be made on a point of law.

    The creditor has shown contact within the last six years - sorry.

    Yes - the judge said he was satisfied the DN had been served - no original to prove it. But the SB statues in this case is on a simple contract and does not start the clock ticking from alleged service of a DN - it is irrelevant in this case.
    It is not the creditor who has to be in contact, it would have to be myself
    • IAmWales
    • By IAmWales 7th Oct 17, 6:15 PM
    • 1,490 Posts
    • 3,132 Thanks
    IAmWales
    • #9
    • 7th Oct 17, 6:15 PM
    • #9
    • 7th Oct 17, 6:15 PM
    You can apply directly to the higher court for leave to appeal.

    I would be amazed if it was allowed.

    How much is the debt? Dare I put out the zany idea that you pay what you owe?
    • grabbit44
    • By grabbit44 7th Oct 17, 6:58 PM
    • 14 Posts
    • 1 Thanks
    grabbit44
    If I thought that I owed the monies to the DCA - I would not have let it get this far - By the time the Claimant had issued the claim I believe the debt had become unenforceable. Debt just over 2k
    • footyguy
    • By footyguy 7th Oct 17, 7:12 PM
    • 3,690 Posts
    • 1,470 Thanks
    footyguy
    If I thought that I owed the monies to the DCA - I would not have let it get this far - By the time the Claimant had issued the claim I believe the debt had become unenforceable. Debt just over 2k
    Originally posted by grabbit44
    We know that, but the judge was not with you when you got to court.
    Not sure what will now convince you otherwise - pretty sure no one here will be able to if you are not willing to accept the finding of the court in this case.

    Good luck for the future (I fear you are going to need all the luck in the world if you continue to deny the ruling of the court in this matter)
    Last edited by footyguy; 07-10-2017 at 7:16 PM.
    • chattychappy
    • By chattychappy 8th Oct 17, 4:11 AM
    • 6,364 Posts
    • 3,342 Thanks
    chattychappy
    Frankly, from what you have said, it does sound like that your case may have been wrongly decided. It happens all the time. Sometimes judges misunderstand the law or the facts. Sometimes they are intimidated/rely too much on a solicitor/barrister representing one side, particularly if they've not read the papers in advance. Sometimes they are just careless and don't think things through.

    Only you can decide whether it is now worth appealing. There is some information here: https://www.moneyclaimsuk.co.uk/PDFForms/EX340.pdf but I would suggest getting some legal advice.

    I did a lot of research on various forums to prepare my defence where I Mentioned the Claim was illegal as the account was SB under the limitations act s.5 and should be struck out..
    I want to appeal this -
    Originally posted by grabbit44
    Do be a tad careful with tossing around legalise. Bringing a statute-barred claim is NOT illegal. A party is entitled to bring the claim, limitation provides a defence. Striking out is more associated with a statement of case - eg if a claim (or a defence) isn't properly brought - ie is vexatious or doesn't comply with civil procedure rules or for some other technical reason. I think what you wanted was summary judgment, this is where a party believes that the other party has no prospect of success because its case is so weak that it has no real prospect of success. (BTW summary judgment isn't normally available in small claims track, but technically can be applied for prior to allocation.)

    In small claim, these issues shouldn't really trip you up because judges know that litigants in person can't be expected to know all the jargon. That said, I have seen such a person blow it because of their adoption of a pompous attitude. (Not saying you did that.)

    Anyway, if you want to appeal it then I would suggest you get some help from somebody qualified or experienced and be aware of costs implications of losing and even if you win (it's a myth that you will recover all your costs in the event of a successful appeal). You must also act quickly. As the judge didn't give you leave to appeal, you will have to seek permission. I would start by getting the official transcript of the hearing - ideally you need to identify with clarity where the judge misundersood the law, ignored important evidence, made a procedural error etc. As noted by others, courts don't like disturbing findings of fact.
    • grabbit44
    • By grabbit44 8th Oct 17, 11:10 AM
    • 14 Posts
    • 1 Thanks
    grabbit44
    Thank you CHATTYCHAPPY (Post #12) Very Helpful!

    The CAB and stepchange as well as other have said the debt is statute barred as it is a simple contract and no payment or acknowledgment for over six-years, the rest is really irrelevant. It should have been unenforceable

    However, the Defendant submitted a DN in evidence that was a reconstituted copy that was just a template letter with no account number or signature either - the Judge failed to ask for an original and I believe this was FRAUD as that document was manufactured at the eleventh-hour for the purpose of having a document. Further the NOA did not have any account information either - it was nothing more than a piece of paper - I submitted in evidence a copy of a NOA (taken from an internet forum) the same date of 18 July 2014 and from the same Home retail card services - that did have all the account information, the same electronic signature, but a different address.

    The claimant has signed a WS and a statement of truth - the documents have now been relied upon at the hearing, I believe a false declaration has been made to obtain a CCJ
    • PeacefulWaters
    • By PeacefulWaters 8th Oct 17, 10:17 PM
    • 7,002 Posts
    • 8,610 Thanks
    PeacefulWaters
    the Judge failed to ask for an original and I believe this was FRAUD
    It is pretty much established that they don't require the original agreement.

    Rather undermines that part of your case.
    • fatbelly
    • By fatbelly 9th Oct 17, 6:08 AM
    • 11,383 Posts
    • 8,542 Thanks
    fatbelly
    Please try to appeal, and get in touch with Paul Tilley.

    http://www.legalbeagles.info/forums/showthread.php?99141-PRA-group-lose-on-limitation

    https://consumercreditlitigationanddebtcollection.wordpres s.com/2017/06/13/the-pra-case-bmw-v-hart-and-statute-barring/

    You will see that your essential point (limitation runs from the breach, not the expiry of a default notice) is the subject of an ongoing legal debate and has not yet reached a court that sets precedent, at least not for a cca-regulated debt.

    The case Paul has is one that was won at county court level, and is now being appealed. Yours appears identical, but was lost at that level.

    I assume your claimant also relied heavily on BMW V Hart which if read properly, as the judge did, does not directly apply, as that (unregulated hp contract) had two 'conditions precedent' to action in the contract. The judge in Paul's case was more persuaded by Swansea City Council v Glass and CEGB v Halifax, None of these, however, are cca cases and we could really do with some consistency and clarity at a level that sets precedent
    Last edited by fatbelly; 09-10-2017 at 6:24 AM.
    • grabbit44
    • By grabbit44 9th Oct 17, 8:18 AM
    • 14 Posts
    • 1 Thanks
    grabbit44
    The case Paul has is one that was won at county court level, and is now being appealed. Yours appears identical, but was lost at that level.

    I assume your claimant also relied heavily on BMW V Hart which if read properly, as the judge did, does not directly apply, as that (unregulated hp contract) had two 'conditions precedent' to action in the contract. The judge in Paul's case was more persuaded by Swansea City Council v Glass and CEGB v Halifax, None of these, however, are cca cases and we could really do with some consistency and clarity at a level that sets precedent[/QUOTE]

    I anticipated the Claimant relying on case laws to persuade the Judge and put this in my WS that they may argue the six-years limitation period runs from the date of a DN. In the same paragraph I wrote this would not be a valid argument as that scenario only applies to secured loans and HP agreements and also the serving of a DN is a procedural matter that does not form part of the cause of action, it is a procedure for enforcing it.
    The Claimants Advocate had a folder full of case laws, one of which was given to me so we were all reading off the same sheet - but none were used - I think that intimidated the Judge and if that folder of case laws was argued over - we would have been there hours.
    • jon1965
    • By jon1965 9th Oct 17, 5:16 PM
    • 303 Posts
    • 332 Thanks
    jon1965
    Grabbit

    Its rare that I post on here but , and I hate to say it, appeals cost lots of money. First step would be to seek leave to appeal then if that is granted the bills will mount up.

    In the terms and conditions of your agreement does it mention what happens when you miss a payment , I ask because I know Capital One Credit cards used to be very explicit about the process that would happen before a S87(1) DN was issued - it could easily be a 3 or 4 month time from the last payment
    • fatbelly
    • By fatbelly 10th Oct 17, 5:56 AM
    • 11,383 Posts
    • 8,542 Thanks
    fatbelly
    The Claimants Advocate had a folder full of case laws, one of which was given to me so we were all reading off the same sheet - but none were used - I think that intimidated the Judge and if that folder of case laws was argued over - we would have been there hours.
    Originally posted by grabbit44
    He should have adjourned, rescheduled and allocated it to a different judge if he felt it was beyond him.
    • grabbit44
    • By grabbit44 11th Oct 17, 5:06 PM
    • 14 Posts
    • 1 Thanks
    grabbit44
    As already said: I received a letter before action from the DCA that did not relate to the Credit card in question, so I sent a pre-action Protocol request for information that took six-months to reply, then only enclosed a Credit Card Agreement (minus separate T&C's) and some statements - no other Documents such as DN or NOA included, but action still threatened.

    ALL DOCUMENTS SHOULD HAVE BEEN DISCLOED BEFORE ANY ACTION WAS TAKEN - NOT WHEN I HAD NO CHOICE OTHER THAN TO SUBMIT A DEFENCE. A reconstituted NOA emerged with No account information that could have been a cheque for a million - LATER ON WHEN THE CLAIMANT FILED THEIR WS, AN ELEVENTH-HOUR DF NOTICE WAS SUBMITTED AS AN EXHIBIT - ALSO NO ACCOUNT NUMBER AND NO SIGNATURE - THE AMOUNT ASKED FOR TO REMEDY THE BREACH WAS ONLY 240.60 - THAT AMOUNT ONLY BROUGHT THE BALANCE DOWN TO THE CREDIT LIMIT - 3-MOTNHS OF CONTRACTUAL PAYMENTS DUE WERE NOT INCLUDED, SO HOW WOULD 240.60 REMEDY THE BREACH. ALSO IN THE FULL OUTSTANDING BALANCE THAT FIGURE ALREADY INCLUDED A 12.00 LATE PAYMNENT FEE, ACCORDING TO SATEMENT NOT EVEN BEEN ADDED UNTIL 20 MAY 2011 (DFN DATED 16 MAY 2011)
    I BELIEVE DOCUMENTS WERE INVENTED - BUT THE JUDGE DID NOT ASK FOR ANY ORIGINALS - WHAT KIND OF JUSTICE IS THIS!
    • fatbelly
    • By fatbelly 11th Oct 17, 6:42 PM
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    fatbelly
    Yes, you got a rubbish judge. Please appeal.

    But don't lose sight of this being statute barred so that the claim should have failed at the first hurdle.

    It's very similar to the PRA case above where there was also a secondary matter - were the documents supplied by the claimant in the trial bundle compliant with s.78 of the 1974 Act? The judge never got to that point because he concluded that the claim was statute barred anyway.
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