Statute Barred debt - HFO court action

fermi

NeverAgain wrote: »

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.

No. Not true at all.

The default notice has no relevance to the the date of the initial cause of action, and is not able to restart the 6 year period.

Read the previous posts.

NeverAgain_2

The OP has a court date later this month, and is representing himself.

What we can be sure of is the court will take no notice of the opinions of a bunch of people with silly made-up names on the internet.

So his best defence looks to be to take a copy of the Swansea City Council judgment/commentary, in the hope the judge will interpret it in a certain way.

If that happens, the OP leaves court still owing the money, but safe in the knowledge the creditor cannot take any legal means to get it.

But, for any number of reasons, the judgment may go against the OP, so I think he needs to be prepared for that.

Seems to me it would be a good time to make an offer to settle.

The other side may think they will still struggle to recover all their money, so might be amenable to accepting a reduced amount to put a swift end to the matter.

DVardysShadow

NeverAgain wrote: »

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.

You have been bamboozled by the creditor's argument in this case, it seems.

The cause for action is failure to pay. The Statute bar is 6 years from failure to pay. ie 6 years from the fact of defaulting. The default notice is merely a stage in the process of enforcing, which must happen in the 6 years. But in no way does it initiate the 6 years.

fermi

Agreed to some degree.

There is never any certainty in the County Court.

Most district judges won't know their arse from there elbow on this, which is why it's important to put forward a clearly argued defence.

As said, may be best to ask here for help putting that into writing: http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?170-Legal-Issues

FB was however quoting from a training course given to professional debt advisors, so I would say that carries as much weight as you can reasonably expect on a forum such as this.

fermi

NeverAgain wrote: »

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.

:rotfl:

This is HFO we are talking about, and presumably their tame in house pseudo solicitors.

As they are in imminent danger of getting their license to operate revoked by the OFT, I don't think they have any reputation to protect any more.

One of their solicitors has already been issued with a "minded to exclude" notice for their misbehaviours

The OFT said there is also a "minded to exclude" notice against Alasdair Turnbull from coverage of the group licence held by the Law Society of England and Wales.

DVardysShadow

NeverAgain wrote: »

... What we can be sure of is the court will take no notice of the opinions of a bunch of people with silly made-up names on the internet.

Brilliant. Speak for yourself, Never Again.

NeverAgain wrote: »

So his best defence looks to be to take a copy of the Swansea City Council judgment/commentary, in the hope the judge will interpret it in a certain way.

If that happens, the OP leaves court still owing the money, but safe in the knowledge the creditor cannot take any legal means to get it.

But, for any number of reasons, the judgment may go against the OP, so I think he needs to be prepared for that.

Seems to me it would be a good time to make an offer to settle.

The other side may think they will still struggle to recover all their money, so might be amenable to accepting a reduced amount to put a swift end to the matter.

The Swansea case was struck down first time around and the council appealed. The court of appeal struck their case down again. It is quite compelling really. It has been held twice that the cause for action arises at the actual point of default not at the point that the default is noticed. You are highlighting the precise game plan of the lawyers in this case. They have no case, but hope to convince the OP to cave into a load of legal rubbish which does not stand up.

The only merit of going to a side room would be to offer £5 and watch them decide whether to take it or make fools of themselves in court. Because my bet is that they would not want to have a ruling against themselves on this point. It has more value to them in intimidating others than it does in less than a ghost of a chance of winning against OP. Because once they lose, it will be their name all over the internet as having lost on this point - and the bluff will be blown.

NeverAgain_2

The OP could include an attack on the credibility of the other side in his defence, but I would advise against it.

Such tactics rarely find favour with judges - in my experience.

The other side will surely be aware of the Swansea City Council case, and will have their answers to it, whatever those may be.

Duffer district judges are not unknown, but it is to be hoped this matter is put before a judge who has some experience of personal debt cases.

fermi

NeverAgain wrote: »

The OP could include an attack on the credibility of the other side in his defence, but I would advise against it.

Such tactics rarely find favour with judges - in my experience.

Twaddle. You are allowed to fairly defend your case.

NeverAgain wrote: »

The other side will surely be aware of the Swansea City Council case, and will have their answers to it, whatever those may be.

Duffer district judges are not unknown, but it is to be hoped this matter is put before a judge who has some experience of personal debt cases.

I hope so too, as that would mean HFO get a kicking in court.

NeverAgain_2

...Twaddle. You are allowed to fairly defend your case...

Yes, you are allowed to fairly defend your case, but attacking the credibility of the other side will not be seen in that light.

I see the post suggesting the OP simply pays what he owes has been deleted, but that point may come into it.

If the judge sees the legal argument as cut and dried, he will rule that way, whatever that way is.

But if he sees the matter as finely balanced, at the back of his mind will be the thought: "The money was borrowed, has not been paid back, so is still owed."

fermi

NeverAgain wrote: »

Yes, you are allowed to fairly defend your case, but attacking the credibility of the other side will not be seen in that light.

Nonsense. You are not attacking the credibility of the other side by mounting a valid defence.

What an utterly daft idea. :rotfl:

You are defending against their argument and putting your own.

That is how court hearings work. That will certainly be seen as more than legitimate.