cabot finance statute barred

Tixy

The default date it not the relevant date for a debt becoming statute barred. The limitation period does not run from that date - that is baloney. A default being issued is an action by them (or the original creditor) whereas it has to be an action by you - so you need to work out when you last paid them (assuming you haven't written to them between your last payment and this month).

ollie75

Thanks all for the responses. I have not paid nor acknowledged the debt since October 2006, which is why I thought I was outside the 5 year period. This however is something I cannot guarantee 100%, as I was not in a very good state of mind at that time, and did not keep any records. I do know that Egg cancelled my card and would not allow me to use it due to another account I had with them also falling into default, and this I am sure was in September 2006, but I have no proof.

fermi

ollie75 wrote: »

A default notice for this account was issued by Egg on 1st February 2007 and as a result the limitation period runs from that date.

That is a load of ball hooks.

The default date has nothing to do with when the 5/6 years starts.

Cabot are trying to pull the wool over your eyes. Cheeky barstewards.

ollie75

So whats the next step, do I challenge them and ask them to prove this date, or do I leave well alone?

fermi

Info from an official advisor's training course. With links to court of appeal cases setting precedent.

http://forums.moneysavingexpert.com/showpost.php?p=47252359&postcount=4

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'

i.e. the 5/6 years starts from that date that the creditor was due payment, but you did not pay them.

fermi

ollie75 wrote: »

So whats the next step, do I challenge them and ask them to prove this date, or do I leave well alone?

Up to you really.

There is the possible basis for a letter here:

http://forums.moneysavingexpert.com/showpost.php?p=34906369&postcount=8

fermi

If you are not sure what to do regards responding, then it would probably be a good idea to give National Debtline a call to talk it through with someone.

http://www.nationaldebtline.co.uk/scotland/factsheet.php?page=23_prescription_and_limitation_act

Free on 0808 808 4000

DVardysShadow

fermi wrote: »

That is a load of ball hooks.

The default date has nothing to do with when the 5/6 years starts.

Cabot are trying to pull the wool over your eyes. Cheeky barstewards.

I think the confusion arises on DFW because if you calculate the Statute Barred date from the default date [assuming no further payment or acknowledgement], you can't make a mistake of concluding it is statute barred when it is not. When the [alleged] debtor has some confusion over last payment date, due to poor record keeping or difficult personal life, as often happens, a default date can be a useful marker.

But I agree, this is not the date the creditor should be using.

fermi

Also highly confusing as the same word "default" is used to refer to several very different but related things.

For example:

(1) When a debtor or creditor refers to when I/YOU defaulted, they would very often be referring to the date you stopped making required contractual payments.

(2) When a creditor refers to when THEY defaulted the account, then that is usually the issue or expiration of a formal default notice. By definition, a date somewhat after that referred to in usage (1). Sometimes many weeks, months or even years later.

(3) And then the date that any default is recorded on your credit reference files. Again, can be many week, months or years after (1), and not necessarily the same as (2) in all cases.

(2) and (3) don't have any bearing on when the 5/6 year limitation period runs from, but DCAs will try and convince you that they do and exploit any misunderstanding.

ollie75

Fermi - I contacted the National Debt line and they confirmed everything you and the other very helpful repliers had said. They gave me a letter to send and I will see where that takes me. Thanks for the help and I will keep you posted.