Cause of action/statute barred

[charharp]

They may be able to withdraw at anytime, but it's almost certainl that they would need to serve notice on the other party to do that.

 

This is the point you, dodge and others seem to not understand or are turning a blind eye to because it refutes your point. Limitations is from when the creditor first has the option to demand full payment (which on an overdraft they can do whenever they want) not when they actually do.

[charharp]

I believe there are many cases of this happening C.

 

I probable have some 'on paper' in the office.

 

It is all very well for individuals quote chapter and verse of statute and case law, with out viewing what in practice may happen.

 

I believe and always will 'Rule are for the obedience of fools and the guidance of wise men'!

 

Any chance you can scan or post links Brig?

 

If what fletch, dodge and sequenci is saying is the case was true there should be plenty of evidence in post ice age UK of DCA'S winning the case in court.

[sequenci]

If what fletch, dodge and sequenci is saying is the case was true there should be plenty of evidence in post ice age UK of DCA'S winning the case in court.

 

You know, it might actually be quite difficult. In the vast majority of scenarious we come across most DCAs generally give up unless the limitations argument from the debtor is so ridiculously spurious that they're never going to win. This is likely to be amplified with overdrafts as the rules are very likely to be determined by contractual terms - as such the DCAs may need to present them to the court - as I'm sure you can imagine many DCAs are unlikely to have them.

[charharp]

As I have said before and Brig said a few posts ago you have to see how things play out in real life. I read something not long ago that it's actually a law that you have to have a bundle of hay in your car at all times, going back to when horse and carts was the mode of transport but it actually applies to cars. That's why quoting 19th century India is at best ridiculous.

[BRIGADIER2JCS]

Thinking back, on the overdraft situations I've been involved with over the years I can't recall SB being challenged by a DCA/Creditor when the old tried and very much trusted 'no payment or acknowledgment in 6 years' statement has been put forward.

[Peterbard]

No I mean not repaying it when the bank expects you to. Either the month or the month after I went into an unplanned overdraft my credit file showed me 1 month in arrears, then it continued the next month 2 months arrears ect. Surely 1 month arrears is an indication of missed payment? I don't see how you can be in arrears without missing a payment.

 

I think you are talking about an unauthorized balance on a current account. This would be reclaimable immediately.

 

Most Current accounts operate a tacit agreement, where the account is "allowed " to overdraw in this case a notice under section 74a is sent to the customer giving the terms of the overdraft. There is usually no repayment intervals or details with this , just the interest rates and so forth, so it would only be overdue when called in and not paid. This would be the cause of action.

[charharp]

Thinking back, on the overdraft situations I've been involved with over the years I can't recall SB being challenged by a DCA/Creditor when the old tried and very much trusted 'no payment or acknowledgment in 6 years' statement has been put forward.

 

How many overdrafts would you guestimate that is out of Brig? 50? 100?

[Peterbard]

Overdrafts are not credit accounts and have an exception tp parts of CCA 1974

 

 

As fletch his usual vindictive nonsense is best ignored.

 

An account not appearing in credit reference files is an excellent 'indicator' on the status of the debt.

 

Overdrafts are running account credit as defined under section 10 of the CCA of course, and were exempt form part V of the act before 2011.

 

The indication of a default on a CRA is of little or no value in determining the COA because the account may well have broken down but remained active for some time before being recalled

 

 

Fact

[Peterbard]

I believe there are many cases of this happening C.

 

I probable have some 'on paper' in the office.

 

It is all very well for individuals quote chapter and verse of statute and case law, with out viewing what in practice may happen.

 

I believe and always will 'Rule are for the obedience of fools and the guidance of wise men'!

 

Unfortunately rules are also what the court uses to make decisions.

 

It is s well to use information we can all see when trying to prove a point , we could all say we have papers in our office which prove that i am right and you are wrong.

 

In addition there have been many cases on here where overdrafts have claimed to be not SB because they were still live later than the last payment or activity on the account.

[charharp]

Unfortunately rules are also what the court uses to make decisions.

 

It is s well to use information we can all see when trying to prove a point , we could all say we have papers in our office which prove that i am right and you are wrong.

 

In addition there have been many cases on here where overdrafts have claimed to be not SB because they were still live later than the last payment or activity on the account.

 

Post links please dodge...

[Peterbard]

Just put statute bar in the search tool you will find them

[charharp]

Can't find anything relating to overdrafts and statute barred that goes one way or the other. Just people asking for advice.

[BRIGADIER2JCS]

How many overdrafts would you guestimate that is out of Brig? 50? 100?

 

Many dozens over the last 10-15 years.

[sequenci]

As I have said before and Brig said a few posts ago you have to see how things play out in real life. I read something not long ago that it's actually a law that you have to have a bundle of hay in your car at all times, going back to when horse and carts was the mode of transport but it actually applies to cars. That's why quoting 19th century India is at best ridiculous.

 

For the record, I am probably have more experience than most when it comes to real world, practical debt situations. Not saying others don't of course - as I know a fair few debt experts that come on to these forums too. I'm not saying I'm an authority but I can't imagine there to be too many with as much understanding and knowledge of the 'real world' than me. And, of course, any legal principle that is mentioned is, as far as I know it, good law here in England. All that besides, it's better to post up *some* authority than none

[charharp]

Sequenci and dodge we really need you to post any case or anyone on here or another site with a story to back your claims up.

[sequenci]

Sequenci and dodge we really need you to post any case or anyone on here or another site with a story to back your claims up.

 

The cases I was taught in the limitations exam I had to take to become qualified in what I do I've already mentioned. There isn't anything else that I'm aware of that has come to my attention. The principles of the cause of action haven't changed, and are unlikely to change going forward. I guess the Margolis case is the best one to think about.

[charharp]

Is it possible to word a letter claiming statute barred so that you also are not acknowledging the debt?

[sequenci]

Is it possible to word a letter claiming statute barred so that you also are not acknowledging the debt?

 

Absolutely yes. You just need to be sure that you letter cannot be construed as an acknowledgement - which is simple enough.

[Peterbard]

For the record, I am probably have more experience than most when it comes to real world, practical debt situations. Not saying others don't of course - as I know a fair few debt experts that come on to these forums too. I'm not saying I'm an authority but I can't imagine there to be too many with as much understanding and knowledge of the 'real world' than me. And, of course, any legal principle that is mentioned is, as far as I know it, good law here in England. All that besides, it's better to post up *some* authority than none

 

 

You and I have advised on various threads on here where creditors have said that the account was not statute barred because it was still live post activity, the thing is that this is such a huuuge forum.

[sequenci]

You and I have advised on various threads on here where creditors have said that the account was not statute barred because it was still live post activity, the thing is that this is such a huuuge forum.

 

Indeed it is!

 

One thing that is incredibly helpful with any argument of limitations, though, is that the letter will reverse the burden of proof. I think that is the single most helpful thing about the while thing.

[charharp]

Absolutely yes. You just need to be sure that you letter cannot be construed as an acknowledgement - which is simple enough.

 

How would it differ from the SB template?

[sequenci]

How would it differ from the SB template?

 

The one on here is OK I would imagine.

[Peterbard]

Indeed it is!

 

One thing that is incredibly helpful with any argument of limitations, though, is that the letter will reverse the burden of proof. I think that is the single most helpful thing about the while thing.

 

Yes indeed, this of course refers to acknowledgment under section 29 rather than the cause of action.

 

I was reading something on this some time ago, apparently older common law stated that the acknowledgment had to be an actual promise or shown intention to settle the debt, there was a test case(please don't ask me to find it) which held that a formal acknowledgment of the debt was enough.

 

This is where the subsequent legislation regarding the payments acknowledging the debt came from. (well I thought it was interesting)

[fletch70]

Brigadier . Where is the lack of an entry on a CRA file a good indication that a debt is SB ?

What about every one who is on a DMP?

Everyone who has tried to make arrangements after default

Every company that doesn't record defualts with DCA's (Hillsden securities for one)

 

You have changed your mind on this thread

Edited December 23, 2013 by ims21

[sequenci]

Yes indeed, this of course refers to acknowledgment under section 29 rather than the cause of action.

 

 

Not sure I follow? Sorry!