Blondie40
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Perhaps the defendant objected to the higher amount the court set, following your rejection of the original amount the defendant offered to pay. I presume their is only a certain amount the court can do without a hearing being held. Defendant will have to explain why they can only afford amount they originally offered. If you have any evidence that defendant can afford more you need to be prepared to use this at the hearing otherwise DJ may accept what defendant says.
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The defendant will have paid a court fee when they made the application for the Variation Order, as Judgment for the original claim was made in your favour any reasonable cost you incur in preparing and attending the hearing will be awarded to you by the court. As LIP you can also claim for more than your out of pocket expenses, time spent preparing for the hearings can also be claimed. Not sure why you feel the court is doing things out of order, a VO was applied for by the defendant, you rejected the amount offered (based on what you know about the defendants circumstances) so a hearing is arranged at which a DJ will set the amount to be paid. If you have evidence about the defendants circumstances use the hearing to present this evidence to the court so that it will be taken into account by the DJ. A defendant does have as much a right to the use of the Courts as the Claimant, the fact that in this case they appear to be wasting money applying for Judgments to be set aside and then failing to attend is very much up to them. Perhaps they are hoping you will throw in the towel. At this stage I would be looking into the possibility of Attachment of Earnings or Charging Order, if following the Redetermination Hearing the defendant does not then start to pay you need to be ready to make the next move and not wait for the defendant to do something else (although I think they are now on their last option). Out of interest has the defendant attempted to settle with you directly by making a reduced full and final settlement offer? B40
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As you and the defendant "are just arguing about monthly payments" this would suggest why this has gone to another hearing. DJ will decide if the amount defendant is offering is acceptable given their circumstances and will probably suggest you accept. By rejecting their initial offer of monthly payments and indicating an amount you would accept, it suggests you did not oppose the defendants application for a Variation Order. This would ideally have been the time to apply for a Charging Order once you knew they had applied for the Variation Order. Did you follow andyorch's advice and look into AoE or Charging Order? B40
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Statue Barred timing on Discontinued County Court Claim
Blondie40 replied to Blondie40's topic in Financial Legal Issues
I already know they have dodgy documents following their discontinued claim back in 2009. See no point in going down the requesting documents road again as it will serve no purpose. -
Statue Barred timing on Discontinued County Court Claim
Blondie40 replied to Blondie40's topic in Financial Legal Issues
No mention in their reply of SB status which I had written and informed them of following letter from DCA. -
Statue Barred timing on Discontinued County Court Claim
Blondie40 replied to Blondie40's topic in Financial Legal Issues
Would appear OC considers a letter informing them that a debt is statute barred as a complaint. The following is reply I have received from OC: Dear B40 Thank you for your letter with your concerns in regard to the above matter. I understand that you have recently raised a complaint in relation to the outstanding balance on your account. Following my investigation into this matter I can confirm an outstanding balance on the above account of £XXXX. We are happy to supply evidence of your liability for this outstanding debt and should you wish us to do so please confirm this in writing. I can confirm that (DCA who contacted me - B40) have now closed their file on this account due to your refusal to make any payments. However the balance will remain outstanding and we reserve the right to pass the debt to a third party for collection. I am therefore sorry to inform you that I will be unable to uphold your complaint. If after consideration you would like to discuss this matter further please contact me on 0000 000 0000. You are also entitled to refer your complaint to the Financial Ombudsman Service. The enclosed leaflet explains in full how you can do this. You must contact them within six months of the date of this letter and provide them with a copy of it as they will require this for their investigation. Your sincerely Despite no acknowledgement of the debt in 7 years and the OC having issued and then discontinuing a County Court claim it would appear that the OC either does not understand what a Statute Barred debt is or they intend ignoring the OFT's guidance on this. Has anyone had any success following a complaint to the OFT regarding collection activity on an SB debt? -
Statue Barred timing on Discontinued County Court Claim
Blondie40 replied to Blondie40's topic in Financial Legal Issues
Interesting response from OC's complaints department. Looks like they consider the SB letter a complaint and are investigating the matter in full and hope to inform me of their findings within 56 days of the date they received my letter. Has anyone else had an SB letter replied to in this way? -
Statue Barred timing on Discontinued County Court Claim
Blondie40 replied to Blondie40's topic in Financial Legal Issues
Fast response from DCA (much faster than I expected): Dear B40 …we have now returned this account to our client. If you require any further information please contact (OC's Head Office). I can also confirm we have removed your personal details from our files and you will receive no further correspondence from us. And it's signed by a real person, not just The Collections Department So, lets see how the OC responds to their SB letter. B40 -
Statue Barred timing on Discontinued County Court Claim
Blondie40 replied to Blondie40's topic in Financial Legal Issues
SB letter sent and signed for by DCA so will be interesting to see what happens next. Should SB letter also be sent to OC? -
Statue Barred timing on Discontinued County Court Claim
Blondie40 replied to Blondie40's topic in Financial Legal Issues
Interestingly the DCA's letter does not contain any threats as is usual. More of a how we look forward to hearing from me soon and working with me to resolve this matter to your satisfaction. Change of tack maybe from a DCA or perhaps it's a case of "we know it's SB but if we are really nice to you you might slip up and acknowledge the debt". B40 -
Statue Barred timing on Discontinued County Court Claim
Blondie40 replied to Blondie40's topic in Financial Legal Issues
DonkeyB - do you know of any case law that can back this up. If going with SB letter would like something concrete to back this up. -
Statue Barred timing on Discontinued County Court Claim
Blondie40 replied to Blondie40's topic in Financial Legal Issues
Thanks for your replies. renegadeimp - CCA and SAR request done with OC they supplied recreated agreement - no PPI and only charges were late payment fees and charge for them to write to me which amounted to less than £100. When claim issued copy of CCA was eventually supplied when requested documents for me to submit defence. No wonder they sent recreated agreement Part of CCA missing - looked like it was torn off, a sticker from OC was covering up details of amount for loan, interest etc and page which had signature boxes on never supplied. (Whoever scanned OC's docs did a bad job). 3 default notices sent in 2006 all gave different amounts for outstanding balance due (over the 3 the total fell by £2000) and monthly amounts due never added up. Copies of DN they supplied when requested all had different figures/account numbers on - one was even for someone else. Their documents in a total mess. After claim discontinued OC never passed it on to anyone else so this is the first DCA who have written to me about it. Was thinking of going with SB letter but wanted to get advice and opinion of others before doing so. Still got some time before need to reply as they have kindly given me 21 days. -
It's been a while since I last posted but need some advice on the following and how a discontinued claim can effect the timing for Statue Barred debt. 7 years ago defaulted on a loan, with the help of this site was able to fight then off. In 2008 original creditor issued a County Court Claim, I submitted a full defence, creditor's solicitor invited me to withdraw my defence as it had "little chance of success". I refused and claimant applied for Summary Judgement. I submitted Witness Statement for and then 3 days before hearing Claimant withdrew from the hearing and "for commercial reasons" discontinued claim in full with both parties meeting own costs - which I was happy to agree to. Heard nothing further from either original creditor or anyone acting on their behalf until recently when I received a very nice and friendly letter from a DCA inviting me to "put forward my proposal for the repayment of the outstanding balance on the account". They are happy to accept monthly instalments or offer a substantial discount if I am in a position to pay off as a lump sum. I also have 21 days to respond to their letter and they look forward to hearing from me in due course. Aren't DCA's such nice friendly people these days - so polite and helpful - till you acknowledge the debt (which I have no intention of doing). My question is how does the discontinued claim affect the clock for a debt being Statue Barred. Documents supplied by OC show date of last payment as being in 2006. Does the Statue Barred clock restart form the date of the claim being discontinued which would be 2009 or does it just carry on from the date of the last payment in 2006 - as if the County Court Claim had not happened.? Any thoughts on this would be appreciated. B40
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Why continue to use the card if, in your opinion, the default charges were not fair. How can you tell a DJ you have paid back all the money borrowed and all interest incurred?
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Will all depend on the DJ lottery, as Spamalot found http://www.consumeractiongroup.co.uk/forum/showthread.php?313677-Spam-v-Lloyds-Tsb-and-Summary-Judgement A DJ who knew nothing about Consumer Credit Law found in favour of the claimant. How is that possible? If S C u M don't get SJ due to too many complex issues that will require a full hearing, don't be surprised if they then suggest a settlement prior to trial.
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BAE Have a few of the posts on here touched a raw nerve with you? Wow - Bit CHILDISH of you! B40
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Andy I hope you are not being sarcastic. B40
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With all your court experience listed in post 37 I would not think you would have to presume anything. Best of luck next week, hope it goes your way!
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Hi Andy Claims issued before SB limit came into effect so not able submit defence on this base.
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Hi Elsa The three claims I defended (two by OC and one by DCA who purchased debt) were issued before SB limit, each being discontinued by claimant shortly before trial (four days in one case). In all three I did not acknowledge debt. Thanks to the excellent advice/info on this site saw all three off. Every once in a while hear from the DCA with a 'please contact us and enter into a payment plan and we will help you, we may be able to negotiate a substantial reduction of amount outstanding'. - Surprisingly no threats of legal action/charging order/bankruptcy anymore. Perhaps the DCA are thinking 'if we send really nice, non-threatening, we want to help you letters, B40 might slip up, ring us and admit they owe the money'. Will all be SB by summer next year if time bar runs from original date, although still expect to hear from them before then.
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How is the Statute Barred position affected when a claim is issued (either by OC or DCA who purchased debt), defendant submits a defence - in which they neither admit or deny the debt- then Claimant Discontinue. Does the Statute Barred clock start again at 6 years from the date of the claim being discontinued or does the 6 year clock continue as from the date of the missed payment, having been effectively paused by the claimant issuing and then discontinuing the claim?
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Further thought: if debt is Statue Barred and then, say 30 years later, debtor dies - can Creditor make a claim against Debtors Estate (sorry to be so morbid was at a Funeral last week).
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No kidding, thanks for all the info. So if first missed payment was 01/06/2006, T&Cs require breach be rectified with 28 days of breach - 29/06/2006, Debt would then be Statute Barred on 30/06/12 Also thanks for info on DOCTRINE OF LACHES (something further to read up on): Based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights; Neglect to assert a right or claim that, together with lapse of time and other circumstances, prejudices an adverse party. Neglecting to do what should or could, have been done to assert a claim or right for an unreasonable and unjustified time causing disadvantage to another. Laches is similar to 'statute of limitations' except is equitable rather than statutory and is a common affirmative defense raised in civil actions. Laches is derived from the French 'lecher' and is nearly synonymous with negligence. In general, when a party has been guilty of laches in enforcing his right by great delay and lapse of time, this circumstance will at common law prejudice and sometimes operate in bar of a remedy which is discretionary for the court to afford. In courts of equity delay will also generally be prejudicial. But laches may be excused from ignorance of the party's rights; from the obscurity of the transaction; by the pendency of a suit, and; where the party labors under a legal disability, as insanity, infancy and the like.
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Elsa You have raised an interesting point and something that I am not too clear on. I defaulted on my debts in Summer of 2006, when checking my credit file I noticed that the defaults were registered between 3 months and 6 months later and in one case over 12 months later. Of the couple that have not been settled and have been sold on to DCA's the default has been registered by the DCA's after they have bought the account which means the default is registered nearly 3 years after the last payment. In such a case is the 6 years for Statute Barred from the date the default was registered by the original creditor for example: Payment on 01/06/06 missed Default noticed issue 01/07/06 giving until 15/07/06 to pay or default registered. No payment made - passed to collections Default registered by OC with CRAs on 01/12/06 Account sold to DCA 01/12/08 - Credit Report shows account settled with OC on 01/12/08 DCA writes "payup or else" letter. B40 - says no credit agreement from OC - account in dispute NO Default Notice received by B40 from DCA Credit report shows default registered by DCA with CRAs on 01/04/09 In this case is the 6 years up on 02/12/2012 or 02/04/2015
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Claimant applied for Summary Judgement couple of months before trial, DJ refused their application as he felt the skeleton arguments by both parties made points that could only be considered at full trial. The claim was then stayed by the Judge at the start of the trial as the test cases that were due to be heard had some bearing on the claim. Don't think the claimant had any intention of discontinuing. Once the test cases had been heard claimant suggested stay remained as they felt settlement could be reached. They made no suggestion of how this could be settled but I made an offer which I fully expected them to reject and suggest a higher sum to settle. They accepted. Would they have discontinued had we gone to trial again? - I don't think so. The test cases went very much against the debtor in these claims, and whilst I felt my defence against their claim was strong I took what I felt was the best (and right) decision for myself.
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