Statute Barred debt - HFO court action

elliott_ness

Hi any help pls
I have a debt with HFO ( original debt with Barclaycard) that is over 6 yrs old.( last payment/ acknowledgment 4/1/2005)No payment or acknowledgment has been made by myself since Dec 2004. HFO are now taking me to County Court on 30/9/2011 to recovery the debt (ccj). I contacted National debt line and they told me to send a statue bar letter to inform the creditor re the limitation act. The creditors solicitors have now stated in their response " the phrase cause of action acurring in a claim for monies lent is a matter of construction of the contract to determine from which time will run . Where the contract either expressly or by implication provides that a demand by the creditor is a necessary prerequisite to the right of repayment, time will not start me to run until such demand is made. As the default in the present case is the 30/11/2006 the claimant (HFO)was entitled to issue proceedings at any time on or before 30/11/2012". Basically as l have a default for the debt they are the clock starts fr the date of default 30/11/2006. Can I get some advice on what my next cause of action shld be. Going bk to court on 30/9/11 need my defence in by 22/9/11. What should my defence be and is the debt SB? Help pls

DVardysShadow

IMO the debt is statute barred with the last shout for action being 6 years from 04 Jan 2005. My bet is that they know full well it is barred but are trying it on with a spurious argument. But the trouble with this for you is that when it goes to court, you will have to argue down their claim about the date of alleged default being the start for action.

NeverAgain_2

For a debt to be statute barred, there must be inaction from both sides.

If not, unscrupulous borrowers would take out a loan and simply go on the missing list for six years.

In this case, the solicitors say the lender made the last demand for payment on November 30, 2006, so the clock starts from then.

Of course, the OP owes the money whether the loan is statute barred or not, this loan is not, so there's no more room for hook wriggling.

fermi

NeverAgain wrote: »

For a debt to be statute barred, there must be inaction from both sides.

If not, unscrupulous borrowers would take out a loan and simply go on the missing list for six years.

In this case, the solicitors say the lender made the last demand for payment on November 30, 2006, so the clock starts from then.

Sorry. That is all completely untrue. :eek:

Doesn't matter in the slightest when the creditor/DCA/solicitor last demanded payment.

The 6 years runs from either the initial cause of action, or from any later acknowledgement or payment by the debtor.

The creditor can demand payment every day for the entire 6 years, and at the end it STILL wouldn't stop the debt becoming statute barred.

elliott_ness

Sorry what does OP mean ????

NeverAgain_2

fermi wrote: »

Sorry. That is all completely untrue. :eek:

Doesn't matter in the slightest when the creditor/DCA/solicitor last demanded payment.

The 6 years runs from either the initial cause of action, or from any later acknowledgement or payment by the debtor.

The creditor can demand payment every day for the entire 6 years, and at the end it STILL wouldn't stop the debt becoming statute barred.

According to this definition:

"A debt is considered Statute Barred if a creditor has not contacted a debtor for a period of 6 years and no action has been taken on the account."

http://www.debtquestions.co.uk/legal_yourrights.php#barred

I think the OP will fall foul of 'no action has been taken on the account'.

This also accords with my reading of the letter received by the OP.

I'm not being flippant when I say the definition, the solicitor and my reading of both could all be wrong.

Equally, the solicitor may be trying to mislead the OP.

But a court date has been set, so the solicitor is taking a big professional chance if he knowingly wanders into that forum to tell porkies.

DVardysShadow

NeverAgain wrote: »

For a debt to be statute barred, there must be inaction from both sides.

If not, unscrupulous borrowers would take out a loan and simply go on the missing list for six years.

In this case, the solicitors say the lender made the last demand for payment on November 30, 2006, so the clock starts from then.

Of course, the OP owes the money whether the loan is statute barred or not, this loan is not, so there's no more room for hook wriggling.

If your theory holds, unscrupulous lenders could prevent statute barring to a few days short of 12 years, simply by delaying the demand for money until a few days before 6 years is up from last payment. The fact that this is not generally done indicates that most creditors do not believe this theory.

fermi

NeverAgain wrote: »

According to this definition:

"A debt is considered Statute Barred if a creditor has not contacted a debtor for a period of 6 years and no action has been taken on the account."

http://www.debtquestions.co.uk/legal_yourrights.php#barred

I think the OP will fall foul of 'no action has been taken on the account'.

I'll say again, that is completely wrong.

Debtquestions are run by PayPlan, and they had the same misleading nonsense on their main webiste for a long long time,

Plus reposted the same nonsense in a blog post.

See: https://forums.moneysavingexpert.com/discussion/3194160

Obviously they forgot to correct the debtquestions post when they removed the misleading info from their main website.

DVardysShadow

elliott_ness wrote: »

The creditors solicitors have now stated in their response " the phrase cause of action acurring in a claim for monies lent is a matter of construction of the contract to determine from which time will run . Where the contract either expressly or by implication provides that a demand by the creditor is a necessary prerequisite to the right of repayment, time will not start me to run until such demand is made. As the default in the present case is the 30/11/2006 the claimant (HFO)was entitled to issue proceedings at any time on or before 30/11/2012".

I have had a think about this. I would say that they are trying to bluff and also trying to make you fork out for legal advice. It is sort of clever. It will waste time and effort in argument in court, but there is an element of having it both ways. Essentially if they are arguing that the contract stipulates that a demand is a necessary prerequisite to a right of repayment, the you would not be in breach of contract until they demanded the money in 2006. Now, if they have marked you down as defaulting before that date in your credit record, this stands in direct contradiction of their own argument. If you have old credit records, this could be a bit helpful on this specific point.

On the whole, I think they probably have a ruling from some type of credit where repayment can be demanded and the default arises at that point. An overdraft might be a case in point - there is no specific repayment schedule, they can demand it settled at any point.

So, question arises: What kind of credit was this? Did it have any minimum monthly repayment on it, which you defaulted on in 2004? Or was it more akin to an overdraft?

elliott_ness

it was a credit card Barclay with a payment payment of 31.00

fatbelly

Their nonsense does not apply to a credit card debt. From a training course I went on...

A cause of action can still accrue (i.e. time starts to run) even though a claimant is prevented from suing by a statutory procedural requirement which precludes the issue of proceedings.

In Swansea City Council v Glass (1992) the local authority brought a claim against a landlord for reimbursement of the cost it had incurred in repairing a house in multiple occupation. The issue was whether the cause of action accrued when the work had been completed or or only when the local authority had served a written notice demanding payment as required by The Housing Act 1957. The Court of Appeal held that the statutory requirement for a written notice was a procedural matter and that time ran from the date that the costs were incurred and the work completed. If this were not the case the local authority could prevent time from running indefinitely simply by not serving the statutory notice.

In respect of an agreement regulated by the Consumer Credit Act, the question is whether the time runs from the date of actual default by the debtor or from the date of (or the date of expiry of) the default notice that must be served under s87 CCA1974.

The situation is analogous to the Swansea City Council case in that the requirement for the service of a the default notice is a procedural matter that does not form part of the cause of action. It does not affect the creditor's right to payment but only the procedure for enforcing it. If this were not the position, a creditor could delay the running of time indefinitely by not serving a default notice.

This view was supported by West Bromwich Building Society v Wilkinson (2005), where the House of Lords stated that it would be 'strange if a lender could stop time running by its own act'