Statute Barred

[kirsun10]

I made payments to a DCA on a statute barred debt not knowing this was the wrong thing to do. There were threats of placing house charges...etc. I agreed to make payment on a monthly basis.

 

However after a few months I lost my job and was unable to keep up these payments. They got a judgment in the bulk processing centre and won by default then obtained a charging order. I then found this site and got info that was needed (CCA requests etc), and got this judgement set aside.

 

Am I able to recoup my money I paid to them as they have now told the court that they do not wish to proceed with the case.

 

what I have read what hey did is illegal by threats alone but getting judgment on a loan barred is the pits.

 

Can anyone advise?

 

Thanks

[spamheed]

Kirsun10, You do seem to have issues of the more complex nature.

 

in all honesty it is very unlikely that they will refund you without you at least threatening to take them through the courts. There are very few instances of any debt collector refunding monies paid and the general consensus appears to be, leave well enough alone and accept the victory as it stands, but if I was to sit in the middle and play devils advocate, my line of thought would be as follows

 

1. As you say, they obtained judgement on a debt which was already Statute Barred, which, if they knew it was SB would be seen to be very underhand,

 

2. On the other hand they could easily argue that since you paid on request, then they had no reason to believe that the account was SB and they acted in good faith in enforcing the debt on that basis alone. It would then be up to you to prove otherwise. (The burden of proof is on the claimant) If you can prove that they knew the account was SB but still went after you regardless, then IMO you should have a very strong argument and they might well see this as a lost case (again) and capitulate and cough up at an earlier stage,

 

I would suggest in the first instance that you contact them in writing making them aware of the situation as you see it and advise them that you are prepared to take the matter before a court where their actions will be examined by a judge and the matter of costs will be taken into consideration. see what they respond with.

[Sand-Dancer0191]

There is also a question about the letter of assignment..without it they have collected unlawfully and enforced it unlawfully

I would seek further advice on this point....

[cerberusalert]

Although a debt may be SB it doesn't mean that it's not still owed, all it means that no legal enforcement can be made. They are entitled to ask for payment... equally you are entitled to tell them to go forth, however any monies paid after it became SB would be extremely difficult to recover unless it can be proven that they were not entitled to payment.

[Sand-Dancer0191]

That is IMO where this comes in (copied)

Re: Notice of Assignment/ the law of Property Act/Arrow Global

 

work of fellow cagger nicklee

 

 

The Assignment of the Debt

 

 

19.

If the Claimant was not zzzzzzzzzzzz Bank then it is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful and is put to strict proof that sufficient notice thereof was served upon myself. Without this proof the Claimant has no standing before the court.

 

 

20.

The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

21.

However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

22.

It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

 

23.

For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

 

24.

Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

 

 

 

25.

It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).