Set aside CCJ on statute barred debt

DonaldJG

Hello
I feel in trouble and hope someone may be able to help. I have an historic debt to Lloyds TSB which is now with a collection agency. I am going to court next week for a set aside hearing where I think the debt is statue barred. I have a letter from the agency stating that the "cause of action" I referred to in a previous letter is the default date of Sept 2006 rather than the last payment made which was Feb 2004 and therefore their action falls within 6 years as their claim was made in Dec 2011.
I think that flies in the face of the letter on page 1 below:


You claim in that letter that the debt referenced above is not statute barred as the recorded default date is xx/xx/xxxx.

I regret to inform you that this interpretation is incorrect and appears to be a deliberate attempt to mislead a debtor regarding the legal standing of a debt. As such, it puts you in breach of the OFT Guidelines on Debt Collection and in breach of the Consumer Protection from Unfair Trading Regulations 2008.

Furthermore, should you attempt court proceedings and rely on such a contention, then not only will this matter be defended in full; it will also be referred to the Solicitors Regulation Authority as a breach of their Code of Conduct. Specifically, as an "attempt to deceive or knowingly or recklessly mislead the court".


Am I right? I'm beginning to feel very nervous about this.
Background is that a CCJ was obtained against me last year in absentia which is why I now have a set aside case. I have full records from the agency and there is no acknowledgement post Feb 2004.

fermi

1st of all I would register and post here for help.

http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?170-Legal-Issues

That forum is more focused on dealing with legal/court action than this.

DonaldJG

I've done that, thanks so much

fermi

Also, why have you quoted those paragraphs as a defence?

If applicable, the argument would be based on this part?

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'.

spacey2012

They are going to need a solicitor as they can not defend as litigant in person if YOU object if they fail to provide one for themselves .
Where they will find one willing to put their name to defending the making a false declaration to a court will be worth noting.
Personally I can not see anyone wanting to put their name to it.
Expect it to go unchallenged.

DonaldJG

Thank you, I quoted the first part of the letter because I was trying to be succinct. That advice seems pretty open and shut to me, but then I am no legal brain!

DonaldJG

What does this mean?
They are going to need a solicitor as they can not defend as litigant in person if YOU object if they fail to provide one for themselves .

The agency do have a solicitor.

mo786uk

Correct me if I am wrong but if a debt is statute barred that gives you a defence to any action

But if you don't actually use it as a defence at the first hearing can you necessarily go back and wipe it off?

For example, if a dispute went to court and the fact that it was statute barred was not raised because the defendant did not know at the time. Lets say they lost the case. Can they then go back and say well it was statute barred so the whole previous case was irrelevant?

tallyhoh

mo786uk wrote: »

Correct me if I am wrong but if a debt is statute barred that gives you a defence to any action

But if you don't actually use it as a defence at the first hearing can you necessarily go back and wipe it off?

For example, if a dispute went to court and the fact that it was statute barred was not raised because the defendant did not know at the time. Lets say they lost the case. Can they then go back and say well it was statute barred so the whole previous case was irrelevant?

I also thought this was the case.

fermi

If you did not have the opportunity to put forward a SB defence as you did not know of the action, then that is a valid reason for a set aside.

All else would be at the discretion of the court.

Franky.m

Hello this is the first time that I have asked a question on this forum.Recently we recieved a letter from Global Debt Recovery stating that we owe over £8000 and to contact them which my wife did.She was told by a rather obnoxious chap that it was to TSB dating back to 1990 for a loan from them and the last payment was made in 1997 and prior to that a CCJ was issued no payments have been made since.My wife did not acnowledge the debt and promply hung up on this horrible man.I was wonderind if anybody could help me understand where I stand with this it is so long ago(17 years) I would have thought the bank would have just written it off and does it get covered by statute barring including the CCJ as it was never chased after.