Clarification re Statute Barred

[pt2537]

Hi there LIBM

 

can i just check something, in their reply to your defence they say that the claim was issued on 19 march 2007? is that correct?

 

if it is can you tell me why its taken this long ot get to this stage?

[pt2537]

Scrap that last message, ive just read post 27:oops:

 

ok, so just to clarify, when do you need to get the amended defence to the court?

[letitbeme]

Hi Paul - Thanks for looking in .

I have today 13th May 2008 recived my allocation questionnaire, it has to be in by 27th May. It is 5.00 pm and have just returned home from work. Will be at my computer all evening , so if you need to clarify anything just let me know and I'll get it to you asap.

[letitbeme]

Paul I am in the process of completing allocation questionnaire and I’m including a draft order.

 

Should I delete the sections highlighted in blue – as I have received copies of the cca

 

 

In the ************* County Court

Claim number **********

 

 

 

 

 

Between

************* - Claimant

and

 

 

xxxxxxxxxx - Defendant

 

 

 

Draft Order for Directions

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon

Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,

Document, contract or deed of assignment

Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

Copies of any statement or other document relied upon

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

An amended defence sufficiently particularised in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order

[letitbeme]

Hi here is my proposed draft order for directions

 

 

 

Draft Order for Directions

 

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

 

 

 

 

• Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Copies of statements for the entire duration of the credit agreement.
  
• Any other documents relied upon
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

 

 

 

 

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant
  

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

and section h other information....

 

Section H

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case.

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

[rudy1]

hi letitbeme, found out from the court that i have an allocation hearing now. I seem to be one stage ahead of you, they said it will be in the next couple of months, i still have no documents, i'm going armed with a solicitor to the hearing which is covered through my house hold insurance. But be warned if you go down that route not many solicitors know much about consumer credit, but worth baring in mind if it gets a bit too much for you to deal with. I will keep you updated on my case.

[letitbeme]

Hi rudy1 thanks for droping in. I did speek to a solicitor and found that he was not up on consumer law. I will look in on your thread and see if it has any thing that I can use in my defence - all the best in your quest.

[letitbeme]

Hi Paul I hope your feeling OK today and your not offended by my PM (Jamaican Motorcycle Accident Rate Study). Did you manage to peruse my holding defence

http://www.consumeractiongroup.co.uk/forum/legal-issues/139522-clarification-re-statute-barred-3.html Post 51.

I think the main points of my defence are:-

Debt is statute barred

No default notice sent/received

No assignment letter sent/received

No account statements sent/received

No account balance breakdown

Account balance includes illegal bank charges

If you could lend a hand to outlining the above and the relevant Law appertaining to each it would lift a great load of my shoulders..

.

Could you look at post 56 and let me know if this is sufficient

Regards LIBM

[letitbeme]

bump

[pt2537]

Hi LIBM

 

This has got quite confusing, i am right in saying that you have filed the defence to the claim havent you?

 

now if im right, the AQ has been supplied and it seems that you have got things under control there on that point

 

but it is the reply to the defence that you need help with? and how best to amend the defence

[pt2537]

Paul I am in the process of completing allocation questionnaire and I’m including a draft order.

 

Should I delete the sections highlighted in blue – as I have received copies of the cca

 

 

In the ************* County Court

Claim number **********

 

 

 

 

 

Between

************* - Claimant

and

 

 

xxxxxxxxxx - Defendant

 

 

 

Draft Order for Directions

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon

Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,

Document, contract or deed of assignment

Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

Copies of any statement or other document relied upon

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

An amended defence sufficiently particularised in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order

Since i cant see the agreement which they are relying upon within the thread, i would leave the part in blue in as the onus is upon them to provide you an agreement which is enforceable

[letitbeme]

Hi Paul I hope your feeling OK today and your not offended by my PM (Jamaican Motorcycle Accident Rate Study). Did you manage to peruse my holding defence

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/139522-clarification-re-statute-barred-3.html Post 51.

 

I think the main points of my defence are:-

 

Debt is statute barred

No default notice sent/received

No assignment letter sent/received

No account statements sent/received

No account balance breakdown

Account balance includes illegal bank charges

 

If you could lend a hand to outlining the above and the relevant Law appertaining to each it would lift a great load of my shoulders..

.

 

Regards LIBM

 

 

Hi LIBM

 

This has got quite confusing, i am right in saying that you have filed the defence to the claim havent you?

 

now if im right, the AQ has been supplied and it seems that you have got things under control there on that point

 

but it is the reply to the defence that you need help with? and how best to amend the defence

 

 

Hi Paul thanks for droping in. Yes I need help with puting together a fully particularised defence that will include the following:-

 

Debt is statute barred ( no payment on this account since OCT 2000 )

No default notice sent/received (NBNA do not have a copy of Default Notice)

No assignment letter sent/received (NBNA do not have a copy of letter of assignment nor proof of recorded delivery)

No account statements sent/received (NBNA do not have a copy of statments nor account notes)

No account balance breakdown (NBNA do not have a copy balance breakdown)

Account balance includes illegal bank charges ( I asume that the outstandig balance is rideled with illegal bank charges)

 

Will be at computer all night so if you neede clarification just drop me a line

 

Regards LIBM

[letitbeme]

 

 

[steven4064]

Is there any indication that these 2 pages are in any way related to each other? It is only enforceable if these 2 pages are front and reverse of a single document.

[letitbeme]

In relation to the claimants defence paragraph 9 as to whether the limitation period had expired in relation to the (cause of action) default notice issue date ( ) and the date on which the claimant issued proceedings ( ), the courts attention is drawn to the following point – the cause of action occurred when the credit agreements terms and conditions where breeched by the non payment on the account which occurred in Oct and Nov 2000, and thus the limitation period had expired six years later in Oct and Nov 2006. Accordingly the proceedings issued in Mar 2007 had been commenced four months too late

As a matter of public policy Statute Barred provides certain limitations of time within which claims must be brought. Where the action is commenced in relation to a breach of a credit card agreement, the limitation period will be six years and will start from the date that the plaintiff acquired knowledge of the relevant breech of the credit card agreement.

[pt2537]

after seeing that agreement i would definitely leave the blue bit in the directions

 

the agreement they have provided, the box on the right hand side of page 2, clearly the terms are not legible so it is arguably non compliant

[letitbeme]

Hi Steve.

 

Thanks for looking in.

 

In answer to your first question No the documents are scanned/photo copies

The first page has a document id number but the second page has not.

 

If the second page is the reverse of the first then shouldn’t it have document id number as well

 

Regards LIBM

[letitbeme]

Thanks Paul

 

Will definitely leave the blue bit in the directions

 

Regards LIBM

[steven4064]

If the second page is the reverse of the first then shouldn’t it have document id number as well

Not necessarily - in fact it is quite normal on forms for example to have the number only on one side. The main indications are if you can make out stuff from one side inthe other - particularly hand-written stuff.

 

However, as both pt and I have pointed out, it is the illegibility of the document that is its biggest downfall

[letitbeme]

Hi Steve – thanks for your input. Have read a number of your posts and threads so I know that you have a wider understanding regarding document trickery – will scrutinise the documents later on this evening

Regards LIBM

[rudy1]

hi letitbeme, my friend couldn't scan documents, i have someone else who can do it, they are christening their son tomorrow but i will call around monday and get her to do it.

[letitbeme]

Thanks for trying , I have asked one of the Mods on here to help with my defence and am sure that some of the defence will help you with yours. Will be in touch soon

Regards LIBM

Have a look at post 66

I think it might be of interest re your defence:)

[letitbeme]

Can any one interpret in simple terms the meaning of section 6 subsection (3)?

 

APPENDIX

LIMITATION ACT 19801

(1980 Chapter 58

An Act to consolidate the Limitation Acts 1939 to 1980

 

 

5 Time limit for actions founded on simple contract

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.

 

6 Special time limit for actions in respect of certain loans

(1) Subject to subsection (3) below, section 5 of this Act shall not bar

the right of action on a contract of loan to which this section

applies.

 

(3) Where a demand in writing for repayment of the debt under a

contract of loan to which this section applies is made by or on

behalf of the creditor (or, where there are joint creditors, by or on

behalf of any one of them) section 5 of this Act shall thereupon

apply as if the cause of action to recover the debt had accrued on

the date on which the demand was made.

[steven4064]

It means that, if a loan falls under this section (as defined in s6(2)), then the 6 years starts from the date when the creditor makes a request in writing for repayment of the debt.

[letitbeme]

Hi Steven - thanks for the rep. Am I correct in saying that this section of the Limitations act:

 

(2) This section applies to any contract of loan which--

(a) does not provide for repayment of the debt on or before

a fixed or determinable date; and

(b) does not effectively (whether or not it purports to do so)

make the obligation to repay the debt conditional on a

demand for repayment made by or on behalf of the

creditor or on any other matter;

except where in connection with taking the loan the debtor enters

into any collateral obligation to pay the amount of the debt or any

part of it (as, for example, by delivering a promissory note as

security for the debt) on terms which would exclude the

application of this section to the contract of loan if they applied

directly to repayment of the debt.

 

Does not affect a credit card agreement

 

Regards LIBM