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  • FIRST POST
    • omega3dave
    • By omega3dave 22nd Nov 17, 8:29 PM
    • 107Posts
    • 18Thanks
    omega3dave
    Application to lift stay - what next?
    • #1
    • 22nd Nov 17, 8:29 PM
    Application to lift stay - what next? 22nd Nov 17 at 8:29 PM
    I have received letter from solicitors, dated 10.10.17 :

    We enclose by way of service a copy of our Application Notice and supporting evidence which has been filed with the Court today. We have asked the Court to deal with the Application without a hearing as we do not consider a hearing is necessary. Once this has been referred to a Judge, he or she should then either make an Order in the terms requested or they may decide that the application needs to be considered at a hearing. Either way, you should receive an Order from the Court in due course which confirms the decision made.
    I have also received notification from local court, dated 4.11.17 that request has been made for summary judgement.

    I have not received any correspondence since 5.11.17

    this has been stayed for around 18 months. I have ignored all their bs letters. I entered defence of statue barred. They seem to have produced some dubious bank statements to indicate that last payment was made 5 years ago. My records show last payment was lot longer than this, over 15 years ago.

    do I need to contact the local court and submit evidence ?

    please, all advice appreciated
Page 1
    • fatbelly
    • By fatbelly 22nd Nov 17, 10:32 PM
    • 12,362 Posts
    • 9,403 Thanks
    fatbelly
    • #2
    • 22nd Nov 17, 10:32 PM
    • #2
    • 22nd Nov 17, 10:32 PM
    I think it's unlikely that the court will just accept one side of the claim, and award judgement against you (summary judgement) but they might do.

    It's more likely that there will be a hearing and you will be asked to supply any evidence you have to both the court and the claimant (file and serve).

    I don't see any harm in sending your evidence ahead of that part of the process but the judgement will hinge on whether a judge can be convinced that the payments made 5 years ago were made by you or your agent. You need to look at their paperwork closely and if necessary find someone who can help you to interpret them.

    Note it's 'statute barred'
    • omega3dave
    • By omega3dave 23rd Nov 17, 8:03 PM
    • 107 Posts
    • 18 Thanks
    omega3dave
    • #3
    • 23rd Nov 17, 8:03 PM
    • #3
    • 23rd Nov 17, 8:03 PM
    thanks fatb.

    appreciate help. I will go over detail, their evidence, and mine this weekend, then make a decision about whether to send in my evidence ahead of the hearing

    letter from court was dated 4.11.17, guess it will be another couple of weeks before I hear anything more ?
    • omega3dave
    • By omega3dave 14th Jan 18, 3:13 PM
    • 107 Posts
    • 18 Thanks
    omega3dave
    • #4
    • 14th Jan 18, 3:13 PM
    • #4
    • 14th Jan 18, 3:13 PM
    hi again

    their solicitors have now applied to have the stay removed and initial court hearing is end of March, would you recommend I get a solicitor to act on my behalf, represent me, or has anyone had experience of representing themselves ?

    total sum is around 5k
    • fatbelly
    • By fatbelly 14th Jan 18, 4:05 PM
    • 12,362 Posts
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    fatbelly
    • #5
    • 14th Jan 18, 4:05 PM
    • #5
    • 14th Jan 18, 4:05 PM
    You shouldn't need a solicitor. It sounds quite a simple case. As I said before - the judgement will hinge on whether a judge can be convinced that the payments made 5 years ago were made by you or your agent.

    Your paperwork shows no payment made for over 15 years.

    Theirs shows a payment made 5 years ago - the question is what was that payment? If it was some internal correction by them then it is not an acknowledgement by you and does not restart the clock.

    However even if they prove payment made 5 years ago was by you, that still implies a ten-year period with no payment and so the debt would have become statute barred in that period and cannot be revived.

    It's worth having Limitation Act 1980 s29(7) up your sleeve:

    Subject to subsection (6) above, a current period of limitation may be repeatedly extended under this section by further acknowledgments or payments, but a right of action, once barred by this Act, shall not be revived by any subsequent acknowledgment or payment.
    • sourcrates
    • By sourcrates 14th Jan 18, 4:28 PM
    • 14,368 Posts
    • 13,553 Thanks
    sourcrates
    • #6
    • 14th Jan 18, 4:28 PM
    • #6
    • 14th Jan 18, 4:28 PM
    However even if they prove payment made 5 years ago was by you, that still implies a ten-year period with no payment and so the debt would have become statute barred in that period and cannot be revived.

    It's worth having Limitation Act 1980 s29(7) up your sleeve:
    Originally posted by fatbelly
    This bit appears to of passed their "legal experts" by dosent it !!
    Last edited by sourcrates; 14-01-2018 at 5:53 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/
    • Arleen
    • By Arleen 14th Jan 18, 4:43 PM
    • 1,150 Posts
    • 863 Thanks
    Arleen
    • #7
    • 14th Jan 18, 4:43 PM
    • #7
    • 14th Jan 18, 4:43 PM
    Whether to get a solicitor or not depend largely on this question: did you make the payment 5 years ago or not?

    If you didn't and can prove their evidence is bogus, don't waste money. If it's not that clear then the solicitor will drastically increase your chance of success.
    • omega3dave
    • By omega3dave 14th Jan 18, 5:45 PM
    • 107 Posts
    • 18 Thanks
    omega3dave
    • #8
    • 14th Jan 18, 5:45 PM
    • #8
    • 14th Jan 18, 5:45 PM
    Limitation Act 1980 s29(7)
    thanks fb, that is sound advice, and a very good point about the 10 year gap
    • omega3dave
    • By omega3dave 14th Jan 18, 8:12 PM
    • 107 Posts
    • 18 Thanks
    omega3dave
    • #9
    • 14th Jan 18, 8:12 PM
    • #9
    • 14th Jan 18, 8:12 PM
    thanks to others contribution as well, I will keep you updated
    • omega3dave
    • By omega3dave 25th Feb 18, 5:29 PM
    • 107 Posts
    • 18 Thanks
    omega3dave
    hi guys, just wanted to update you on a few things

    I am now around 4 weeks out until the court hearing.

    I did recently write to HSBC and ask them to supply a copy of my Consumer Credit Agreement as is my entitlement under sections 77-79 of the Consumer Credit Act 1974.

    their reply was to state 'they did not recognise me on any of their systems' ?

    that is one thing

    I also issued a SAR request to get statements from 2000 to 2010 from them. The 40 day period has expired since this request and I still have not received any statements

    along with preparing my witness statement (to get all my facts straight for evidence) for the hearing in 4 weeks, is using HSBC's recent responses (or lack of), pertinent or admissible in my statement ?

    is this common where they say they do not recognise me on their system ? ( is this because it was so many years ago)

    I am suffering from man flu at mo, feel like crap, apologies if I could have written this update better
    • fatbelly
    • By fatbelly 25th Feb 18, 7:11 PM
    • 12,362 Posts
    • 9,403 Thanks
    fatbelly
    If this was an overdraft then you don't really have a case as s77-79 CCA requests do not apply, but if this was a loan or credit card, and you made the request correctly, then any action must be stayed under those sections!

    Strange that they are taking court action but cannot recognise you on any of their systems! Definitely mention this in your witness statement, and the failure to respond to a SAR.
    • omega3dave
    • By omega3dave 25th Feb 18, 7:34 PM
    • 107 Posts
    • 18 Thanks
    omega3dave
    hi fatbelly

    thanks for reply

    was definitely a loan.

    one cannot count ones chickens I know, but I feel fairly strong at minute

    can I upload the basis of my witness statement for your perusal ?

    will not be until next weekend until I get this drafted out
    • fatbelly
    • By fatbelly 25th Feb 18, 8:20 PM
    • 12,362 Posts
    • 9,403 Thanks
    fatbelly
    yes, take reference numbers out before posting.
    • omega3dave
    • By omega3dave 4th Mar 18, 12:33 PM
    • 107 Posts
    • 18 Thanks
    omega3dave
    hi FB

    I am ready to upload my first draft witness statement

    https://btcloud.bt.com/web/app/share/invite/vt5Y4Soky3

    please can you take a look.

    all guidance welcome, thanks in advance

    thanks
    • fatbelly
    • By fatbelly 4th Mar 18, 5:14 PM
    • 12,362 Posts
    • 9,403 Thanks
    fatbelly
    OK -
    point 1 - put the date of claim in here

    point 2. Say what it is alleged that this is, e.g.:

    'The claimant alleges that I entered into a credit card agreement on xx month 1997.

    point 10 - put Limitation Act 1980 section 5 in there:

    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.

    then quote 29(7) - well done.

    Also put Limitation Act 1980 section 5 in your point 11

    'and the claim is unenforceable under Limitation Act 1980 s5 and s29(7)'

    I think there's another section you could throw in there as well - will post again later
    • fatbelly
    • By fatbelly 4th Mar 18, 6:47 PM
    • 12,362 Posts
    • 9,403 Thanks
    fatbelly
    Yes, maybe point 12 as this is pre April 2007:

    12. As the allegation is that this is a regulated agreement dated xx xx 1997, s127(3) of the Consumer Credit Act 1974 applies. Under s127(3) CCA1974 the court shall not make an enforcement order under s65(1) if s61(1)(a)(signing of agreements) was not complied with, unless a document (whether or not in the prescribed form and complying with the regulations under s60(1) itself containing all the prescribed terms of the agreement) was signed by the debtor or hirer (whether or not in the prescribed manner). I have no written agreement or document of any kind. As the claimant has failed to comply with the requirements of s61 CCA1974, any agreement would be improperly executed under s127(3) CCA1974 and cannot be enforced by the court.
    • omega3dave
    • By omega3dave 4th Mar 18, 8:26 PM
    • 107 Posts
    • 18 Thanks
    omega3dave
    thanks FB

    I will amend and re-upload, will be around mid-week when I get
    chance to do this
    • omega3dave
    • By omega3dave 11th Mar 18, 6:39 PM
    • 107 Posts
    • 18 Thanks
    omega3dave
    hi FB

    I have now hopefully included your extra points correctly

    here is my amended statement

    https://btcloud.bt.com/web/app/share/invite/OMTi95cEQa

    please can you re-check for me ?

    is just over a week to go now, should I send my witness statement to the court tomorrow, ahead of the hearing ?

    should I send a copy to Restons their solicitors ?

    cannot thank you enough

    that point 12 you added seems to carry a lot of weight to my defence, thanks
    • fatbelly
    • By fatbelly 11th Mar 18, 8:40 PM
    • 12,362 Posts
    • 9,403 Thanks
    fatbelly
    Point 1 should include the date of their court claim. You said it was 18 months ago but your document says 20th March 2018

    You could spell out 'over six years' in point 11 rather than writing '6plus'

    The rest of it sounds fine.

    Your statute barred argument is the strongest one, given that even on their statements there appears to be a ten-year gap in payments. The s78 argument is a temporary one - they can comply with that with a bit of effort. The s127 argument could be overruled by a judge being convinced that HSBC always got a signed agreement. However, a good judge would want everything evidenced, and it sounds like HSBC have nothing

    Edit: yes, send to court and solicitors as soon as you can now.

    Edit2. You said it was a loan. Your point 2 says it was a credit card
    Last edited by fatbelly; 11-03-2018 at 8:43 PM.
    • fatbelly
    • By fatbelly 11th Mar 18, 8:55 PM
    • 12,362 Posts
    • 9,403 Thanks
    fatbelly
    If this was a loan s77 applies to CCA requests

    If it's a credit card it's s78. They are mirror images of each other. s77 says

    77 Duty to give information to debtor under fixed-sum credit agreement.
    .
    (1)The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—
    .
    (a)the total sum paid under the agreement by the debtor;
    .
    (b)the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and
    .
    (c)the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.
    .
    (2)If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)(c), he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.
    .
    (3)Subsection (1) does not apply to—
    .
    (a)an agreement under which no sum is, or will or may become, payable by the debtor, or
    .
    (b)a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.
    .
    (4)If the creditor under an agreement fails to comply with subsection (1)—
    .
    (a)he is not entitled, while the default continues, to enforce the agreement
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