Statute barred question?

[b4nkers]

Hi all

 

Apologies if posted in the wrong place.

Any advice gratefully will be gratefully received.

I defaulted on a joint 5k loan in May 2001 following a divorce from my ex husband.

 

 

As a result I incurred a default or CAIS 8 (not CCJ) at the time that remained on my credit file for 6 years.

The default no longer shows on my credit file.

 

Last week I received a letter from Northhamton County Court relating to the same debt

saying that if I don't do anything I will be slapped with a CCJ for approx 9K (they have a added a lot of interest).

The paper work incorrectly shows my maiden name.

 

Questions:

1) I have read about possibly being exempt due to the case being statute barred-

Is there anyway I can confirm that I have not acknowledged the debt or made a payment to them before submitting this as a defence

- as I would prefer not to show my cards unless I'm 100% sure this is the case.

 

2) If I have not acknowledged it or made a payment within the last 6 years, but my ex has - what will the situation be then?

 

3) If a payment has been made/debt acknowledged, and the debt becomes payable what would be the best option

as I'm current not working and have 4 dependant children- and the debt currently is in the wrong name.

 

Thanks for your help

 

B4nker

[berrylover]

All I can confirm at this point is that if your husband has been paying within the last 6 years, but has now missed a payment then the debt will not be statute barred. I am not sure about the rest.

[BePositive]

Questions:

1) I have read about possibly being exempt due to the case being statute barred- Is there anyway I can confirm that I have not acknowledged the debt or made a payment to them before submitting this as a defence- as I would prefer not to show my cards unless I'm 100% sure this is the case.

 

Probably not unless you have a) always denied the debt exists and quoted this in all correspondence or b) kept records of all correspondence with them.

 

2) If I have not acknowledged it or made a payment within the last 6 years, but my ex has - what will the situation be then?

It would not be statute barred as the definition of statute barred is:

If a lender allows time to pass without receiving any payment an action for recovery may become barred.

 

3) If a payment has been made/debt acknowledged, and the debt becomes payable what would be the best option as I'm current not working and have 4 dependant children- and the debt currently is in the wrong name.

Contact your local CAB or another charitable organisation (Christians against poverty is another one) who can help come to an agreement with the company.

I don't know the legalities but surely your ex is still responsible for half the debt if it is in joint names?

[b4nkers]

Thanks for your help Be positive

 

I requested a copy of bank statements and unfortunately for me I discovered I made a payment to Hogg Robinson the DCA in Jan 05 for £20 to keep them off my back. The loan is therefore not statute barred if the clock starts from the date of last payment?

 

Unsure now whether to make an offer to the DCA to repay the loan in full or submit the court letters offering to pay a minimal amount for the forseeable based on my circumstances? The annoying this is that this defaulted loan already went to a CAIS 8 (default) in 2001 and gave me a poor credit score for 5 years afterwards. If I get a CCJ it will be another 5 years until it disappears again - seems unfair.

 

Anyhelp would be appreciated- some of the other threads talk about requesting to see evidence of the original loan agreeement - is this worth doing for me and my circumstances. I will also speak to the National debt line to for their advice too- thanks once again for your help.

[rory32]

What are the Particulars of Claim?

Anyhelp would be appreciated- some of the other threads talk about requesting to see evidence of the original loan agreeement - is this worth doing for me and my circumstances.

Yes as if they can't supply this the loan will be unenforceable even in a court of law.

 

You will also need to ask for a breakdown of all charges on the account as worst case scenario is that you can dispute the amount owed on the basis of the charges on the account plus any interest applied to the charges (you may be shocked at just how much these come to).

 

Really you need to know how much you may owe before making any offer and remember if the CCJ is paid within one month of the judgement then it won't appear on your credit file.

 

Have a read here for some further information consumer credit litigation http://www.consumeractiongroup.co.uk/forum/legal-issues/108467-basic-introduction-consumer-credit.html

[rory32]

Contact your local CAB or another charitable organisation

I'm afraid to say that the CAB are usually very poor in these matters and their advice will probably be to just make an offer of payment and not question the debt - although obviously individual CAB's vary and you may get to speak to a qualified debt advisor. A better bet is the National Debtline where you will get to speak to a qualified debt advisor straight away:

FREEPHONE: 0808 808 4000

Monday to Friday 9am to 9pm

Saturday 9.30am to 1pm

24-hour voicemail.

[RobMitch]

I agree with Rory..the CAB are poor on stat barr matters. Nation Debt Line are better and have a specific leaflet on it.

 

If you received the claim form from Northampton you must acknowledge it within 14 days and then have a further 14 + 5 to submit a defense. If you do not acknowledge in time they will get a default judgement against you.

There are many examples under the Legal Issues heading here, and also in the Legal success stories.

 

They will not expect you to defend and in many cases they withdraw th eclaim after the kind of defenses prepared here are sent to the courts.

 

Persoanlly I also doubt one payment would alter the stat barr status if you argue it was made to aleviate the constant threats of the DCA.

 

Also after 7 years I doubt they have a valid agreement. You will see what others have done here...you should defend and send them the CPR 18 request for disclosure of ducuments. If they have no Credit agreement you have no real case to answer.

 

Please don't bury your head over this. Make absolutely certain to acknowledge the receipt of the papaers from the court...then get reading the legal successes threads and find ones which are similar to your situation.

 

People here can help you prepare a solid defence which puts them under th eright pressure at the right time.

 

Good luck

 

Rob

[RobMitch]

I should also add having been on the receiving end of a default CCJ in the past, the world does NOT end!

 

The court will only make you pay what you can show them you can pay. The court have no commission-baesd axe to grind and will set an amount far less than the DCA have been demanding.

 

Actually,once the CCJ was past it was a blessed relief as no more letters or threats and the payments are fixed. You must then make sure you don't default, but even then there are time-frames and mechanisms to deal with it easily.

 

Just make CERTAIN you do not bury you head. Read and become aware!!!

 

Good Luck

 

Rob

[b4nkers]

Thanks for all your responses, they have helped a lot. I have also spoken to Nat debt helpline who have helped me come to the decision to defend the claim. I have read other similar cases on this site and starting to feel a bit more confident.

 

FYI the particulars of the claim are as follows:

 

" The claimant claims money due under an agreement by which the defendant agreed to repay a loan with interest by instalments. By reason of the defendants default in payment the unpaid balance is now due

 

and the claimant claims

1) The sum of 5966.78

2) Interest pursuant to s69 of the County Court Act 1984 at the rate of 8.0% from 19/05/2001 to date hereof 2672 days is the sum of 3494.44

3) Future interest accruing at the daily rate of 1.31 4 .costs "

 

(the last part of the last sentence is as shows on the particulars)

 

According to an old credit report the account started on 08/08/1998 and defaulted on 29/12/1999)

 

The process I intend to follow is as follows:

 

1) acknowlege the claim with the courts ticking the box I intend to defend all of this claim

2) Send letters to credits sols and DCA advising of the above on basis of statute barred- will also request a copy of the original agreement giving 7 days to respond.

3) If no response with 7 days - file defence with the court.

(all letters sent recorded delivery)

 

Thanks for your help starting to feel a bit more confident now.

[42man]

You could send this to the opposing solicitors as they are trying to enforce a CCJ....(maybe somebody can tell me if this is pertinant in this case)....SEND THIS BY RECORDED DELIVERY

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

CPR 18 - REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

 

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(a) a copy of the procedure(s) used for copying, storing and retrieving documents

(b) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

© copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(d) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)

c. .Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

d. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

e. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

f. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

g. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

h. Copies of statements for the entire duration of the credit agreement.

j. Confirmation that the debt has not been barred by the staute of limitations act 1980 throughout it's alleged lifetime.

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

[surfaceagentx20]

The fact that the Claimant seeks statutory interest from 19 May 2001 suggests to me there are good reasons to suppose there has been no payment to the credit of this account since that date. In other words, this is the last day on which the account balance reduced allowing the creditor to make a straight forward, uninterupted interest calculation throughout the intervening period.

 

Further, there is always the prospect that other defences will be available to you besides simply a limitation defence.

 

The PoC mentions [1] an agreement and in a roundabout sort of way [2] default, possibly meaning a default notice.

 

Since the claim has very recently been received, I would be inclined to deliver this letter:

 

Dear Sir,

Re: (Claimant's name) v (Your name) Case No:

 

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the default notice.

 

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

(more about this letter here)

 

x20

[RobMitch]

There we go B4ankers, the big guns are firing now. Either of these letters gets your ball rolling and shows them you mean business. I'm gonna try the surfaceagentx20 on some imminent claims that are most likely stat barr, but 42mans is a tried and trusted approach. Don't expect a fast response to either, it's not in their interest to send you the stuff in haste

 

The good thing with these letters is if they dont respond, you can ask the court to order them to as its preventing you from contructing a defense. It creates a delay and grasps back some of the control of the process for you,

 

You'll also see in the threads in the legal successes some standard defense submissions that can be adapted if the documents are not sent on time, I'm sure the guyz here will advise depending on what you get back.

 

Good luck and please feel free to ask any questions. It's a scary time and many of us have been through it. These bullies expect a default judgement and don't like getting defenses submitted. All the more reason to...

 

Best wishes!

 

Rob

[b4nkers]

Thanks Rob & SurfaceagentX20- for your help. Feel like I'm going into battle better equipped now. Both letter options will buy time and any responses I receive I hope can be used to construct a plausible defence. Decided in the end to send the CPR 31.14 letter to be sent tomorrow Saturday morning to the claimants (robinson way co. ltd) solicitors -special delivery- they have to sign for it. Is it worth sending a copy to the DCA and the courts as well at this stage?

 

Will let you know how I get on. Thanks once again for your valued assistance.

[RobMitch]

Just correspond to the claimants on the court papers only. i assume thats their solicitors.

 

Rob

[b4nkers]

Hi everyone who has helped me recently

 

Thanks for your recent help with my claim. Since sending surfaceagent20 suggested letter I have heard no response since- 14 days has since elapsed. Though the letter was sent recorded delivery, Royal Mail have no record of the letter being delivered. I have retained the receipt which confirms it was sent recorded delivery and the fact Royal Mail have verified the address was correct before it was sent.

 

I need to file my defence to the court by/on the 19th Oct.

 

Any help in filing the defence would be gratefully appreciated - do I need to resend the original letter? Any help is gratefully appreaciated.

 

Thanks once again, B4nkers

[ODC]

Surface Agent has a point. If they are claiming interest for every day then they are saying NO payment had been made. If they later claim a £20 payment was made then their POC would be wrong. Its very good that they confim no payments have been made since 2001 by their claim

[b4nkers]

Thanks, good point about the interest calculated on a daily basis. As mentioned I have made some ad hoc payments (only £20) at a time when the bailiffs threatened (it was before this site existed) but none since 2005.

 

How could I word this into the defence? Are there any examples of defences that would be suitable?

 

Thanks all for you help once again

 

B4nkers

[twofoot]

You don't need to mention that you paid £20. Your should be that you want strict proof of the debt and that if it does exist, by way of a CCA, it would be statute barred under the limitation act. Would think someone should confirm this though.

[rory32]

You don't need to mention that you paid £20. Your should be that you want strict proof of the debt and that if it does exist, by way of a CCA, it would be statute barred under the limitation act.

There will be a record of this payment.

[b4nkers]

Hi all

 

 

OK, thanks for your help,

 

Any suggestions on the following situ:

 

I posted the request for more information (CPR 31.14 letter)- sent recorded delivery but no record of delivery/signature by good ol' Royal Mail.

 

I now have a situation where I have to submit my defence by Sun 19th.

 

 

A couple of questions tho:

 

1) Can I file the defence online on the Sunday 19th on the day it expires?

 

2) As mentioned I have proof of postage etc but Royal Mail have no record that it was delivered or signed for - will this make this it difficult to go down the 'no response' route. Or should I send it again special delivery today? Need a bit of urgent help really as if I need to send it special delivery I need to send it today - but would this mess things up as it would not give the claimant sufficient time to respond?.

 

3) Are there any templates I can refer to for possible defences for in this instance?

 

Any suggestions gratefully appreciated.

 

Thanks all

[42man]

Bankers....you will find these threads very useful....

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/163506-county-court-claim-received.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/162456-help-statute-barred-debt.html

[slick132]

Re the points you raised in post #20:-

 

If the claim is on MCOL I think you can d/w this online 24hrs a day.

 

If you have proof of postage, that should be sufficient for your needs.

[b4nkers]

Ok, thanks for your help. I'll submit online once I have drafted a defence using the links provided.

 

I have also spoken to the National debt helpline - they said even at this stage it is still worth sending their statute barred letter as well even though I explained there have been ad hoc payments within the last 6 years.

 

Thanks for your help once again.

[surfaceagentx20]

Here's a form of defence you may care to use. It combines a denial that the agreement is an enforceable agreement with a plea that the debt is now statute barred.

 

DRAFT/ DEFENCE

 

1 No admissions are made as the making of the alleged loan agreement. Alternatively, if the agreement was by way of loan agreement, the same was an agreement made under and which was regulated by The Consumer Credit Act 1974. No admissions are made as to the terms, conditions or other provisions of the agreement whether regulated or otherwise, nor the extent to which the Claimant may have complied therewith nor the extent to which the Defendant may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

 

2 Without prejudice to the generality of the facts and matters set out at paragraph 1, if the agreement imposed a liability upon the Defendant to pay money to the Claimant and which has not been paid, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant and no action may now be brought upon the cause by reason of the provisions of the Limitation Act 1980.

 

3 The Claimant's claim to be entitled to £5966.78 is denied.

 

4 The Claimant's claim to be entitled to statutory or any interest is denied.

 

I BELIEVE THE CONTENTS OF THIS STATEMENT ARE TRUE

 

Signed:

 

Dated:

 

Any queries, just yell.

 

x20

[b4nkers]

Thanks for your help x20 - it sounds just what I'm looking for. Will keep you updated.

 

Thanks, B4nkers