Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@. Skimlinks & other affiliated links are turned on

Search
  • FIRST POST
    • grabbit44
    • By grabbit44 7th Oct 17, 1:37 PM
    • 14Posts
    • 1Thanks
    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 2
    • Marktheshark
    • By Marktheshark 11th Oct 17, 6:46 PM
    • 5,690 Posts
    • 7,150 Thanks
    Marktheshark
    You can appeal any county court decision.
    Just file the appeal form.
    Brexit will become whatever they invent it to be.
    • grabbit44
    • By grabbit44 11th Oct 17, 7:15 PM
    • 14 Posts
    • 1 Thanks
    grabbit44
    I certainly got a rubbish Judge ! As a litigant in person he owed me a duty of care - I think he had already decided before we went in! (I have contacted Paul) thanks for the advice!
    In my WS I wrote: Under Civil Procedure Rule Part 39 - Practise Direction 39a 3.3 - ORIGINALS of Documents in trial bundle. I do not think a Reconstituted anything was compliant - the so called DN was exhibited merely as a copy, not even referred to as a reconstituted version.
    • grabbit44
    • By grabbit44 14th Oct 17, 6:43 AM
    • 14 Posts
    • 1 Thanks
    grabbit44
    Another update, this time from a case involving Lowells bless them. So the story goes something like this…………………….
    Lowells claim to have purchased a debt relating to a regulated consumer credit agreement. Lowells claim that they are entitled to be paid. Consumer requests the agreement under s78(1) Consumer Credit Act 1974.
    Lowells seem to think that Carey v HSBC helps them, and that they only have to do what Carey says to get them home. Alas, they should also read the Court of Appeal ruling on s78 which goes further than Carey and is often overlooked. That authority is kotecha v Phoenix Recoveries.
    Anyway, good old lowells fail to comply with s78, they dont send legible documents, they dont send the complete agreement ala Kotecha, they dont send the statement of account, and contrary to s78 they dont send the documents all together, note s78 states “agreement together with”….. so it all has to be provided together not piece meal.
    In addition, Lowells have problems with the default notice, it doesnt give 14 days, it doesnt state the correct amount to be paid.
    And they also have an issue concerning s86c Consumer Credit Act as there are not notices of sums in arrears.
    So we point out all these issues to their solicitors, who promptly ignore it and seem to think that if they ignore it enough then it will all go away.
    So the matter comes before the Court, Lowells havent put right any of the above, so the Judge after hearing perfectly crafted submissions from Thomas Brennan the barrister who we instructed, dismissed the Claim at the first hurdle, finding that the Claimant had not discharged s78(1) Consumer Credit Act and therefore the Claim must be dismissed.
    Maybe, just maybe, rather than forcing a client to go through this chaos and mayhem, and the stress of court proceedings, Lowells will look at cases a little more carefully in the future.

    Too late for me?
    • fatbelly
    • By fatbelly 14th Oct 17, 2:00 PM
    • 11,378 Posts
    • 8,538 Thanks
    fatbelly
    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
    Quick Reply
    Thank You0 QuoteMulti-quote
    Originally posted by saidmaoui1
    You've just re-posted jon's post from earlier. What were you trying to do?
    • sourcrates
    • By sourcrates 14th Oct 17, 3:57 PM
    • 12,207 Posts
    • 11,658 Thanks
    sourcrates
    I certainly got a rubbish Judge ! As a litigant in person he owed me a duty of care - I think he had already decided before we went in! (I have contacted Paul) thanks for the advice!
    In my WS I wrote: Under Civil Procedure Rule Part 39 - Practise Direction 39a 3.3 - ORIGINALS of Documents in trial bundle. I do not think a Reconstituted anything was compliant - the so called DN was exhibited merely as a copy, not even referred to as a reconstituted version.
    Originally posted by grabbit44
    You normally have 21 days to appeal Grabbit, but the costs can be prohibitive, i agree you could of had a more enlightened judge though.

    I wish you luck with it.
    I'm a Board Guide on the Debt-Free Wannabe, Credit File And Ratings, and
    Bankruptcy And Living With It, boards. I'm a volunteer to help the boards run smoothly, and I can move and merge posts there, and delete spam.
    Board guides are not moderators and don't read every post. If you spot an abusive or illegal post then please report it to forumteam@moneysavingexpert.com. Any views are mine and not the official line of MoneySavingExpert.com.

    For free debt advice, contact either : Stepchange, National Debtline, or, CAB.
    For Legal advice see : http://legalbeagles.info/
    • grabbit44
    • By grabbit44 15th Oct 17, 12:54 PM
    • 14 Posts
    • 1 Thanks
    grabbit44
    There are "further and separate conditions" that were never disclosed -which I pointed out in my Defence & WS - so it is anyone's guess what could have happened after one missed payment, apart from the £12.00 LP fee.

    I had to admit I had the card and used it, but it was now SB.

    I told the Judge I could not pay in 14-days so he made it 28-days and asked me to make an application to pay by instalments - this will be £5.00 a month as I have other priority debts and only work part time.
    • grabbit44
    • By grabbit44 15th Oct 17, 3:45 PM
    • 14 Posts
    • 1 Thanks
    grabbit44
    Pauls' PM ...card product allowed the creditor to demand payment of the full balance immediately irrespective of the reasons why, then you could argue as we did in PRA v Doyle, that the limitation period runs from the date of the missed payment as that is when the creditor under their terms could have demanded payment.
    I believe the Argos Card missing T&C never disclosed is the key


    7.3 If you fail to pay your minimum monthly payment or any payment you make is late or not enough to pay off the minimum payment due on an Interest Free Plan or a Fixed Payment Plan, the outstanding balance of that Plan may immediately become payable in full
    Exactly like Paul's case - the Judge presumed far too much!
    • grabbit44
    • By grabbit44 18th Oct 17, 6:07 PM
    • 14 Posts
    • 1 Thanks
    grabbit44
    Just got the CCJ: And Upon being satisfied in particular there has been a valid assignment of the debt in question to the claimant from Home Retail Group Card Services Ltd. (Unexceptional debt claim arising from assignment to claimant. Various matters raised by D, re service of DN/Limitation, validity of Assignment, all adequately responded to by C, on balance of probability standard).
    Appeal was refused at the hearing - no merit. NO MERIT?
    • fatbelly
    • By fatbelly 18th Oct 17, 6:42 PM
    • 11,378 Posts
    • 8,538 Thanks
    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.
    Originally posted by fatbelly
    Clearly the judge lost sight of the essential point - those other defences(Default Notice, validity of assignment) would have been irrelevant if the claim was statute barred.

    I see the transcript mentioned 'limitation' as being 'adequately responded to by C, on balance of probability.' The way it is phrased leads me to think the judge was taken in by the argument that the cause of action is the expiry of a default notice.

    But from where you are now you are either going to have to accept the ccj or seek specialist help of the sort that only a handful of individuals can give you, and it may well come at a price.

    What do you want to do?
    • grabbit44
    • By grabbit44 18th Oct 17, 8:00 PM
    • 14 Posts
    • 1 Thanks
    grabbit44
    Judge did not even mention limitation - only that this was like a HP agreement - and with regard to the DN he said to the claimants solicitor there would have been some sort of computer record wouldn't there, to which there was a nod of head! The DF did not have any account information and I said it could have been a cheque for a £million - clearly no original existed that is why this reconstituted version emerged at the 11th hour - but the Judge did not ask to see any original - but the Judge was satisfied the DN was served and the limitation started from that date as in like an HP agreement.

    I have asked the court to appeal that is why they have rushed the judgment through - it cost £120 to file an appellants' notice with which I can get fee remission - I hate the thought that Lowell have treated me in this way and appear to have got away with it too by a judge enforcing an unenforceable agreement
    Last edited by grabbit44; 19-10-2017 at 5:34 AM.
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

1,692Posts Today

8,906Users online

Martin's Twitter
  • RT @LordsEconCom: On Tuesday Martin Lewis, Hannah Morrish & Shakira Martin gave evidence to the Cttee. Read the full transcript here: https?

  • Ta ta for now. Half term's starting, so I'm exchanging my MoneySavingExpert hat for one that says Daddy in big letters. See you in a week.

  • RT @thismorning: Can @MartinSLewis' deals save YOU cash? ???? https://t.co/igbHCwzeiN

  • Follow Martin