Statute Barred debt - HFO court action

fermi

Thanks FB. I was just trying to get that case onto Google docs so I could post it.

https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B6i5-2tePE-TYTBhMGNlYzYtOGNmOC00N2M3LTg3NjctMTA4YjY4M2M1ZjZh&hl=en_GB

NeverAgain_2

fermi wrote: »

Thanks FB. I was just trying to get that case onto Google docs so I could post it.

https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B6i5-2tePE-TYTBhMGNlYzYtOGNmOC00N2M3LTg3NjctMTA4YjY4M2M1ZjZh&hl=en_GB

From the quoted judgment in reference to Consumer Credit Act regulated debt: "If this were not the position, a creditor could delay the running of time indefinitely by not serving a default notice."

It's a dreaded double negative, but seems to be saying the six-year period starts with the issue of a default notice.

The OP's letter from the creditor says the same, stating they have six years from the default notice, which was issued in November, 2006.

fatbelly

The Wilkinson case is here.

This is becoming a useful thread and I've favourited it. This spurious argument is often made by dcas so it's good tohave some solid material to hand.

fatbelly

NeverAgain wrote: »

It's a dreaded double negative, but seems to be saying the six-year period starts with the issue of a default notice.

No, just the opposite of that. Time starts running from the actual default, not from the delayed response by the creditor in meeting a procedural requirement (i.e the issuing of a notice)

fermi

NeverAgain wrote: »

From the quoted judgment in reference to Consumer Credit Act regulated debt: "If this were not the position, a creditor could delay the running of time indefinitely by not serving a default notice."

It's a dreaded double negative, but seems to be saying the six-year period starts with the issue of a default notice.

The OP's letter from the creditor says the same, stating they have six years from the default notice, which was issued in November, 2006.

No it's not, in any way shape or form.

Read it again.

As FB says, if you read it properly it says exactly the opposite.

FireWyrm

Ladies and Gentlemen, while this professional argument is most entertaining and certainly enlightening, the OP specifically asked :

"What is my next move?"

Do any of you have any advice in that area?

FYI Elliot, OP = "Original Poster"

DVardysShadow

NeverAgain wrote: »

From the quoted judgment in reference to Consumer Credit Act regulated debt: "If this were not the position, a creditor could delay the running of time indefinitely by not serving a default notice."

It's a dreaded double negative, but seems to be saying the six-year period starts with the issue of a default notice.

As the others say, you have got it wrong

From fatbelly's quote

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 explains that the creditor has a right to payment and a purely procedural right of enforcement. The cause for action arises from breach of the right to payment - not from the exercise of the right of enforcement.

Effectively, the Statute Bar is a limitation on the right of enforcement - requiring that all enforcement steps up to putting the matter to court must be undertaken within 6 years of the breach of the right to payment.

vax2002

Have you stated you intend to defend the claim and returned the form.
Then filed the defence:
Statute barred
The onus is 100% upon the claimant to prove the debt is not statute barred.
My gut feeling they are calling a bluff, if as you say it is barred and they will try to hoodwink you in to a side room at the court to "let you off the hook"
My advice is always.. Court they call,,, court you go, no side rooms, no deals, the worst that can happen is it goes against you and you get to set how much you can afford with reasonable people, always remember this is a mercantile court and is arbitrary and can not issue punishments, fines, or levies. .

fermi

FireWyrm wrote: »

Ladies and Gentlemen, while this professional argument is most entertaining and certainly enlightening, the OP specifically asked :

"What is my next move?"

Do any of you have any advice in that area?

I would say perhaps post in one of the forums that has a specific legal section for defending cases. CAG, etc....

Both for advice on appropriately wording a defence and/or for suggestions on procedural steps.

While I know the stuff being spouted by HFO and others is pure and utter twaddle, writing a coherent defence based on that is not something I usually get involved with.

In the end it needs to be put forward in a way that means a judge will see through HFOs untruths. Otherwise there is a danger that a district judge who is not overly familiar with this could be taken in by them.

NeverAgain_2

The creditor must issue a default notice before taking any legal action.

It seems to me the law is saying a creditor who issues a defualt notice has six years to put up or shut up.

Equally, if no payment is made and no notice is issued by the creditor in six years, or no action is taken by both parties in six years, then legal action becomes barred by statute.

But in this case a notice has been issued, in November 2006, hence the other side is claiming they have six years to act.