HFO again...

sd_eccles

Hi,
My wife has recently started recieving letters from HFO regarding an alleged debt with Barclaycard taken out January 2004. They say that the last payment made was in April 2004, but that the default date is November 2006, which conveniently makes it unable to be claimed statute barred. I say is it because the last payment was made in 2004, and the first we heard about it was earlier this year.
They even managed to get our new address within a month of us moving due to my job (they said they had ways and means of finding out), despite us not being registered there at that time!
I requested a copy of the agreement, which they have actually sent ( a crappy photocopy which is difficult to read), and the address on the form is different to the address given over the phone, and the dates don't match up with where my wife was living at the time. (this is all before we were married).
The mobile number on the application form goes to a voicemail service for a provider she was never with, and the 'signature' along with the handwriting is nothing like hers used to be.

I have searched online and I cannot find reference to default dates, only last payments. No contact has been made with my wife before this year regarding the debt, and we have not acknowledged liability.

HFO have also been calling on occasions several times a day to try and get us to admit and pay it.

Do I fire off a letter to HFO stating the various anomalies and point out that any further contact will be classed as harrassment?
Thanks

S

nottoolate

refernce to case law from http://www.consumeractiongroup.co.uk/forum/

that someone used to refute this sort of nonsense about default dates

LIMITATION ACT 1980

Actions founded on simple contract

5 Time limit for actions founded on simple contract

An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued

I quote from your letter dated 4th June 2008 “In so far as your claim that the account is statute barred we refute the allegation. The cause of action arose on 20.08.01 when the account went into default and we issued our proceedings on 19.03.07 which is within the 6 year time limit as set out in the Limitation Act 1981”.

In your explanation as to the starting point for cause of action, I note that your starting point for the time frame of the Limitations Act is the issue of the Default Notice by MBNA on the 20th August 2001. May I draw your attention to the following Case Law 1 and Case Law 2: -

Case Law 1

ICLR: King's/Queen's Bench Division/1891/Volume 2/REEVES v. BUTCHER. - [1891] 2 Q.B. 509

The following is a quote from page 1.

[COURT OF APPEAL]
REEVES v. BUTCHER.
1891 July 10.

LINDLEY, FRY and LOPES, L.JJ.

Limitations, Statute of (21 Jac. 1, c. 16, s. 3) - Cause of Action.

The plaintiff lent money to the defendant under a written agreement, which recited an agreement for a loan for five years, "subject to the power to call in the same at an earlier period in the events hereinafter mentioned." The defendant agreed to pay interesticon quarterly, and the plaintiff agreed not to call in the money for five years if the defendant should regularly pay the interest. And it was provided that if the defendant should make default in payment of any quarterly payment of interest for twenty-one days the plaintiff might call in the principal. No interest was ever paid. The plaintiff commenced his action to recover the principal and interest within six years from the end of the term of five years: -

Held (affirming the decision of Day and Lawrance, JJ.), that the statute of limitationsicon was a good defense, for that the time began to run from the earliest time at which the plaintiff could have brought her action - i.e., twenty-one days after the first installment of interest be came due.

Case Law 2

All England Law Reports/1992/Volume 2 /Swansea City Council v Glass. - [1992] 2 All ER 680
[1992] 2 All ER 680

The following is a quote from page 1.

Swansea City Council v Glass.

COURT OF APPEAL, CIVIL DIVISION
PURCHAS, RALPH GIBSON AND TAYLOR LJJ
20 NOVEMBER, 11 DECEMBER 1991

Limitation of action - Accrual of cause of action - Action to recover sums recoverable by virtue of statute - Recovery of expenses incurred by local authority in carrying out works under housing legislation - Council carrying out repairs to house in defendant's control - Council seeking recovery of expenses incurred by it in carrying out repairs – Summons for recovery of expenses issued more than six years after completion of works but less than six years from service of demand for payment - Whether cause of action accruing when works completed or when demand for payment served on defendant - Whether action time-barred - Housing Act 1957, s 10(3) - Limitation Act 1980, s 9.

The respondent failed to comply with two notices served on him under the Housing Act 1957 by the appellant council requiring him to carry out repairs to a house in his control and the council carried out the necessary works itself. The repairs required by the first notice were completed on 7 September 1983 and those required by the second notice in March or April 1984. On 31 May 1984 and 25 April 1985 the council served on the respondent written demands for the expenses incurred pursuant to s 10(3)a of the 1957 Act. The respondent failed to pay and on 30 May 1990, which was more than six years after completion of the works but less than six years from the service of the demands, the council issued a summons seeking payment of both amounts. On the trial of a preliminary issue as to when the council's cause of action accrued the judge held that the council's cause of action accrued when the work required by the notices had been completed and that accordingly the action was statute-barred by virtue of s 9b of the Limitation Act 1980. The council appealed, contending that the cause of action to recover the expenses incurred by it accrued when the demands for payment were served or when they became operative. a Section 10, so far as material, is set out at p 682 c, post b Section 9, so far as material, is set out at p 682 d, post

Held - The council's cause of action to recover the expenses incurred by it accrued when the works were completed and not when the demands for payment were served since on the true construction of s 10 of the 1957 Act the requirement to serve a demand was a procedural condition precedent to the bringing of proceedings and was not an inherent element in the cause of the action. It followed that the council's cause of action arose in September 1983 and March or April 1984 and was statute-barred when the summons seeking payment was issued. The appeal would therefore be dismissed.

I have underlined the relevant points in Case1 and Case 2 and draw your attention to them.

As you can see, there are legal arguments in support of my defense of statute bared and the causes of action as lade down by Case 1 and Case 2. I have for your benefit included a copy of the both cases attached to this letter.

May I also point out that a default notice is a procedural bar and has nothing to do with limitation periods ”

A cause of action can still accrue, i.e. time start to run, even though a claimant is prevented from suing by a statutory procedural bar which precludes the issue of proceedings “

“If the claimant issues a default notice 6 or 10 months after the breach of contract, then that is there prerogative. It will not deter from the fact that the earliest time that they could issue legal proceedings would be the date of the breach of contract + 14 days for a Default Notice if issued after 2006 or 7 days if issued before.”

The following paragraph is a quote taken from my skeleton witness statement. “In relation to the claimants defence paragraph 9 as to whether the limitation period had expired in relation to the cause of action default notice issue date 20th August 2001 and the date on which the claimant issued proceedings 19th March 2007, the courts attention is drawn to the following point – the cause of action occurred when the credit agreements terms and conditions where breeched by the non payment on the account which occurred in Oct 2000, and thus the limitation period had expired six years later in Oct 2006. Accordingly the proceedings issued in Mar 2007 had been commenced 5 months outside of the limitation period ”.

The following case Law are all relevant in supporting the cause of action rueling in the above mentioned (REEVES v. BUTCHER.) case Law and will be used in support of my defense: -

Coburn V Colledge [1897] 1 QB 702
Swansea City Council V Glass [1992] 2 All ER 680, CA
Royal Borough of Kensington and Chelsea V Khan [2002] EWCA Civ 279

Let me also quote para 35 from the Royal Borough of Kensington and Chelsea V Khan .

Lindley L.J. put the matter powerfully thus at page 9: “Who ever heard, with reference to any Statute of Limitations, that a creditor could enlarge the time for suing indefinitely by omitting to do that which it is his duty by statute or common law to do? It appears to me that we ought not to adopt a construction of the statute that leads to such a result, unless we are driven to it.”

sd_eccles

Thanks,
What I cannot grasp is that they are saying the last payment was made in April 2004, yet the default date is November 2006, that's two and a half years later!!! From what I have read online most lenders give it two or three months before saying you have defaulted.

fatbelly

The default date is irrelevant. On their own statements the debt is statute barred. I posted recently from a training course on this subject but it attracted troll posts and the thread got closed. The Swansea City Council case sets precedent as it was a Court of Appeal case. Here it is again, with links:

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'

sd_eccles

I have tried to argue that I could not find any reference to 'default date' anywhere, but plenty of references to 'last payment made'. Of course the Limitations Act 1980 is typically vague, in that it just says 'from the date on which the cause of action accrued', but does not clarify what 'cause of action accrued' means, be it default date or last payment made.
I am beginning to think someone is mistaking a handwritten 4 for a 6 on photocopied documents, as a default date of November 2004 would make more sense than one in 2006, given the last payment was made in April 2004.

nottoolate

sd_eccles wrote: »

I am beginning to think someone is mistaking a handwritten 4 for a 6 on photocopied documents, as a default date of November 2004 would make more sense than one in 2006, given the last payment was made in April 2004.

doubt it.

more likely hfo are deliberately falsifying the default date in order to con you into thinking it isnt' statute barred.

doesnt matter anyway. you have all the info you need in the post from me and fatbelly to argue against them whatever

the default date has nothing at all to do with the cause of action

please read the info in our posts

Mr_Max

As fatbelly said, the Limitation Act only applies to the last payment date, not the default.

Basically, they haven't a leg to stand on.

Normally, I'd advise to be respectful and decline to engage them in conversation, and to avoid being rude because at the end of the day, they're just trying to do their job.

......But....... this is HFO, whom I hold in the same esteem I hold men who beat their wives. They are some of the lowest humans I have met in my time as a professional debt manager and their personal attitudes to debtors can only be described in the most generous terms as sickening. So, if you decide to make innocuous remarks to them, I'm not going to judge.......

sd_eccles

They are persistant so and sos!! I have said many times over the phone that it is Statute Barred due to the last payment date.
Will send them a snotogram, sorry, letter, advising them that it is statute barred, and I will also be pointing out the errors on the application form!

Thanks for your help, I will keep you all up to date with the reply...

fatbelly

I'm sure the OFT would be interested in their misrepresentation of established case law. Please copy your letter to them to aid them as they consider whether HFO should retain their Consumer Credit Licence.

sd_eccles

Well my wife recieved a letter today(!) from HFO (who happen to have a new address in Dublin, and a new name of HFO Capital Ltd...), saying they have passed the account to Roxburghe (UK) Limited.
I am intend to send the same letter to them as I did at the end of September, yes, it has taken them this long to respond!!
Or shall I wait for Roxburghe to contact us before I do anything else?

Cheers

thechippy

Just send the same letter.

You really do need to complain to the OFT - HFO are already being investigated.

You will find that HFO Capital are the owners of the debt, but use HFO Services as their UK agent, as Capital are offshore.

Roxburghe and HFO are all linked