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  • FIRST POST
    • GothicStirling
    • By GothicStirling 6th Apr 18, 4:08 PM
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    GothicStirling
    Statute Barred Debt Lowell (Part II)
    • #1
    • 6th Apr 18, 4:08 PM
    Statute Barred Debt Lowell (Part II) 6th Apr 18 at 4:08 PM
    Started a new thread as the previous one has been locked. http://forums.moneysavingexpert.com/showthread.php?t=5749838

    Yes, they are that stupid, and have now sent me County Court Papers. Advice on how to contest claim, under Statute Barred legislation?
Page 2
    • WillGoodfellow
    • By WillGoodfellow 24th Jun 18, 1:57 PM
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    WillGoodfellow
    Yes, from the date of the default rather than from the date of the default notice as I stated. That default date can be written in to the contract i.e. 6 weeks from the date of due payment. It is not so quite clear cut that this debt is statute barred as suggested.
    • sourcrates
    • By sourcrates 24th Jun 18, 3:13 PM
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    sourcrates
    Statute barring is calculated from the date of the default notice, not the end of the agreement or the date of the last payment .
    Originally posted by WillGoodfellow

    Err......this is what you posted.


    The OP`s had the correct advice, lets not complicate matters.
    I'm a Board Guide on the Debt-Free Wannabe, Credit File And Ratings, and
    Bankruptcy And Living With It, boards. "I volunteer to help get your forum questions answered and keep the forum running smoothly".
    Board guides are not moderators and don't read every post. If you spot an abusive or illegal post then please report it to forumteam@moneysavingexpert.com. Any views are mine and not the official line of MoneySavingExpert.com.

    For free debt advice, contact either : Stepchange, National Debtline, or, CAB.
    For Free Legal advice see : http://legalbeagles.info/
    • GothicStirling
    • By GothicStirling 30th Sep 18, 7:45 PM
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    GothicStirling
    Okay, got back from holiday tonight to find a letter from Northampton. They are allocating the case to a local County Court (not the one I requested). What shall I do now for preparation.
    • fatbelly
    • By fatbelly 30th Sep 18, 9:32 PM
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    fatbelly
    It normally goes to the court nearest to the defendant. If that is the one you asked for and they have allocated it somewhere else, check that the court you asked for is still open (a lot are closing) and takes small claim cases.

    You need do nothing for now. Just wait for instructions.
    • Debt_suvivor
    • By Debt_suvivor 11th Oct 18, 8:59 PM
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    Debt_suvivor
    Expiry date is default date

    They can legally enforce until 10/4/19
    And the other 14/9/2018. They log it with courts before those dates itís ccj time
    • fatbelly
    • By fatbelly 11th Oct 18, 10:22 PM
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    fatbelly
    Expiry date is default date

    They can legally enforce until 10/4/19
    And the other 14/9/2018. They log it with courts before those dates it’s ccj time
    Originally posted by Debt_suvivor
    They can try. OP can defend using established case law. And is doing.

    Reeves v Butcher [1891]
    Swansea City Council v Glass [1992]
    Sevcon Ltd v Lucas CAV Ltd [1986]

    BMW Financial Service (GB) Ltd v Hart [2012] does not apply as the terms present in that agreement do not appear in the terms and conditions of a Provident loan.

    Lowell are disputing that the cause of action is the cessation of payments on 1/11/2011. However, are not citing BMW v Hart but they are introducing a novel argument that the cause of action is the expiry of the loan agreement on 10/4/13.

    Presumably on that argument someone entering a 25-year loan and stopping payment after one month could not be sued for a further 24 years 11 months.
    Last edited by fatbelly; 30-10-2018 at 9:37 PM.
    • Just Di
    • By Just Di 12th Oct 18, 11:58 AM
    • 168 Posts
    • 72 Thanks
    Just Di
    a letter from Northampton. They are allocating the case to a local County Court (not the one I requested). What shall I do now for preparation.
    Originally posted by GothicStirling

    I've taken a peek at your three threads on this Lowell's debt and can see that you're defending the claim solely on the Statute Barred argument.

    I always think it's best to defend on as many legal arguments as possible in case a DJ isn't persuaded by just the one. If they (DJ) can see multiple breaches of the Consumer Credit Act then they could be more inclined to take an overall negative view of the Claimant's case.

    My suggestion is to send a s 77-79 CCA Request to Lowells together with the £1 statutory fee for this ex-Provident loan. If they can't/don't comply with your request within 14 days the debt will become unenforceable in court (regardless of the Statute Barred issue). I believe this forum may have a link to a CCA Request template letter.

    Can I check whether Cohen Cramer solicitors are still instructed or have Lowell Portfolio (debt owner) instructed Lowell Solicitors? If so have you received a formal Notice of the change? I read on another thread that Cohen Cramer were involved, but correct me if I've misunderstood the situation .

    If Lowells are arguing the default date as the Cause of Action (in my experience they always do) then they should produce a valid Default Notice as part of their evidence. So my next suggestion is to send them a CPR 31.14 Request seeking disclosure of the Default Notice. If they can't produce a compliant (s 87 CCA) DN then they may struggle in court. They often produce a screenshot showing one was issued/served but that's not enough (up to the DJ to decide on that point).

    I've not seen the Particulars of Claim but CPR 31.14 allows the Defendant to ask for documentation mentioned (not simply referred to) in the POC. If the DN was mentioned then they must produce it.

    I would also use the CPR 31.14 Request to ask them to produce the Notice of Assignment, Deed of Assignment, and the credit agreement (even though you'll be requesting this under s 77-79 CCA).

    If they can't/don't produce the Notice of Assignment how can the court be persuaded that the debt was assigned and that Lowells have the legal right to claim the debt.

    Have you been served with annual Notice of Sums in Arrears (s 86 CCA) since the account defaulted? If not then the debt becomes unenforceable until they remedy the problem. Don't raise this point now (save it for the Witness Statement stage).

    If you've only pleaded Statute Barred in your Defence the court may not allow you to add new legal arguments especially if the Claimant objects. You may need to amend your Defence which requires permission from the court (an Application) unless the other side consent to you amending it.

    I can't see how much is being claimed? My apologies if I've missed that fact.

    Di
    Last edited by Just Di; 12-10-2018 at 12:02 PM.
    • sourcrates
    • By sourcrates 12th Oct 18, 12:06 PM
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    sourcrates

    My suggestion is to send a s 77-79 CCA Request to Lowells together with the £1 statutory fee for this ex-Provident loan. If they can't/don't comply with your request within 14 days the debt will become unenforceable in court (regardless of the Statute Barred issue). I believe this forum may have a link to a CCA Request template letter.

    Di
    Originally posted by Just Di

    CCA request letter can be found here :


    https://www.nationaldebtline.org/EW/sampleletters/Pages/Information-about-your-agreement-under-the-Consumer-Credit-Act-%28sole-name%29.aspx
    Last edited by sourcrates; 12-10-2018 at 12:17 PM.
    I'm a Board Guide on the Debt-Free Wannabe, Credit File And Ratings, and
    Bankruptcy And Living With It, boards. "I volunteer to help get your forum questions answered and keep the forum running smoothly".
    Board guides are not moderators and don't read every post. If you spot an abusive or illegal post then please report it to forumteam@moneysavingexpert.com. Any views are mine and not the official line of MoneySavingExpert.com.

    For free debt advice, contact either : Stepchange, National Debtline, or, CAB.
    For Free Legal advice see : http://legalbeagles.info/
    • GothicStirling
    • By GothicStirling 26th Oct 18, 4:14 PM
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    GothicStirling
    Okay, have now received a Court date of 27th Nov, and need to send a Witness Statement. My plan is to say:


    1. It is my belief that the debt is SB as I have not made a payment or had contact with Lowell or Provident since Nov 2011.


    2. I dispute Lowell's argument for Cause for Action, as the Provident contract clearly states that the first default would have been 1 week following the last payment.


    Anything else?
    • GothicStirling
    • By GothicStirling 26th Oct 18, 4:23 PM
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    GothicStirling
    I've just seen Just Di's post (been away), so I suppose its too late to request anymore information?
    • GSDlover
    • By GSDlover 26th Oct 18, 4:27 PM
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    GSDlover
    You seem to have totally ignored Sourcrates and Di’s excellent advice? I’m just wondering why ....

    Edited to add - you posted almost at the same time as me, seems you’ve been away. Shame you didn’t read those posts on holiday so you could act on the advice given.
    • GothicStirling
    • By GothicStirling 26th Oct 18, 5:32 PM
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    GothicStirling
    You seem to have totally ignored Sourcrates and Diís excellent advice? Iím just wondering why ....

    Edited to add - you posted almost at the same time as me, seems youíve been away. Shame you didnít read those posts on holiday so you could act on the advice given.
    Originally posted by GSDlover
    Who said I was on holiday? I was working. No need to be judgmental just because I'm not one of those people superglued to the internet.
    • fatbelly
    • By fatbelly 26th Oct 18, 7:00 PM
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    fatbelly
    I've just seen Just Di's post (been away), so I suppose its too late to request anymore information?
    Originally posted by GothicStirling
    There's no judgement yet so you can still do both things Di suggests.
    • Just Di
    • By Just Di 26th Oct 18, 10:24 PM
    • 168 Posts
    • 72 Thanks
    Just Di
    have now received a Court date of 27th Nov, and need to send a Witness Statement.
    Originally posted by GothicStirling
    Does the Notice of Hearing include Directions about the deadline for filing and serving your Witness Statement (and the Claimant’s WS) which is typically 14 days before the Trial Date?

    I suggest you send a s 77-79 CCA Request to the Claimant ASAP.

    If they can’t/don’t comply with your request within the statutory timeframe then the debt becomes unenforceable.

    However since you have not pleaded that legal argument in your original Defence then there’s a possibility that the court may refuse to entertain it unless you make an Application to amend your Defence as per my previous post.

    How much is the claim which may give some indication as to the Claimant’s determination to pursue this claim?

    If the claim is below £10k then legal costs may be less of an issue, but if the claim is over £10k the Claimant may successfully seek a costs Order against you.

    I don’t have any facts about your claim so my post is entirely based on guesswork

    Di
    Last edited by Just Di; 26-10-2018 at 10:27 PM.
    • Just Di
    • By Just Di 26th Oct 18, 10:32 PM
    • 168 Posts
    • 72 Thanks
    Just Di
    I've just seen Just Di's post (been away), so I suppose its too late to request anymore information?
    Originally posted by GothicStirling

    No itís not too late but it hasnít helped your situation since Claims are won or lost based on two things: Law (obviously) and breaches of Civil Procedure Rules.

    You can have ďLawĒ on your side but if you donít comply with court procedure then you can lose a winnable case.

    Di
    • sourcrates
    • By sourcrates 26th Oct 18, 10:47 PM
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    • 14,783 Thanks
    sourcrates
    Di, I just want to say a big thank you to you, giving up your personal time to comment on this forum.

    It is much appreciated, we have been short in the legal dept for a long time, your input is really welcomed, posters should be aware they would normally have to pay for this kind of advice, here itís offered in a non judgemental way, for free, you should all be very grateful.
    I'm a Board Guide on the Debt-Free Wannabe, Credit File And Ratings, and
    Bankruptcy And Living With It, boards. "I volunteer to help get your forum questions answered and keep the forum running smoothly".
    Board guides are not moderators and don't read every post. If you spot an abusive or illegal post then please report it to forumteam@moneysavingexpert.com. Any views are mine and not the official line of MoneySavingExpert.com.

    For free debt advice, contact either : Stepchange, National Debtline, or, CAB.
    For Free Legal advice see : http://legalbeagles.info/
    • GothicStirling
    • By GothicStirling 27th Oct 18, 8:03 AM
    • 1,112 Posts
    • 844 Thanks
    GothicStirling
    Does the Notice of Hearing include Directions about the deadline for filing and serving your Witness Statement (and the Claimantís WS) which is typically 14 days before the Trial Date?

    I suggest you send a s 77-79 CCA Request to the Claimant ASAP.

    If they canít/donít comply with your request within the statutory timeframe then the debt becomes unenforceable.

    However since you have not pleaded that legal argument in your original Defence then thereís a possibility that the court may refuse to entertain it unless you make an Application to amend your Defence as per my previous post.

    How much is the claim which may give some indication as to the Claimantís determination to pursue this claim?

    If the claim is below £10k then legal costs may be less of an issue, but if the claim is over £10k the Claimant may successfully seek a costs Order against you.

    I donít have any facts about your claim so my post is entirely based on guesswork

    Di
    Originally posted by Just Di
    Thanks, I'll sort out the CCA today. The claim is for just under 1k (will be more now that they will have added costs). The bloody annoying part is my sister (who I shared a flat with at the time) had a loan from them at the same time, and they've written to her saying they won't pursue it further, yet they're taking me to court!
    • Caretaker237
    • By Caretaker237 30th Oct 18, 8:44 PM
    • 2 Posts
    • 1 Thanks
    Caretaker237
    Itís not a myth.

    I lost in court on a statute barred defence on December 8, 2017. I was up against a Barrister on behalf of Restons who were representing Cabotís on an original Capital One Credit Card debt.

    The judge took the view that the cause of action ran from the end of the 14 day remedy period contained in the default notice that was served under section 87 1 of the Consumer Credit Act 1974; and not from the date of the last missed payment as I had suggested.

    I was in court for an hour with a break in between, so it wasnít a slam dunk, but they still won.

    I posted in detail about this on the Legal Beagle site.

    Itís open season on this defence. If you are going from the last missed payment then you are up against it. But you might get lucky.

    Regards
    • Caretaker237
    • By Caretaker237 30th Oct 18, 8:56 PM
    • 2 Posts
    • 1 Thanks
    Caretaker237
    Sorry my comments above were in reply to ďSocratesĒoriginal comment on page one. Somehow they didnít link.

    Itís also worth pointing out that the National Debt Advisory gave me the wrong facts regarding the cause of action date.

    They will tell you that itís from the last missed payment.

    They need to change their website and update their advice because itís wrong.

    Regards
    • Debt_suvivor
    • By Debt_suvivor 30th Oct 18, 9:03 PM
    • 43 Posts
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    Debt_suvivor
    If youíre not able to meet the requirements of the default notice, the account is usually cancelled and you can no longer use the credit facility. Creditors will not always take further action listed in a default notice but they are legally entitled to if you donít comply with the terms.

    The creditor can also:

    Demand the balance in full
    Sell or pass the debt to a collection agency
    Start court action
    Start proceedings to repossess anything that forms part of the agreement (for example a car that is part of a hire purchase agreement)
    The creditor can only carry out these actions after the account has defaulted. If you pay back the amount stated within 14 days, no further action is taken. If future payments are missed a default notice can be issued again.
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