Statute Barred discussion thread

[silverfox1961]

As has been discussed (at length) the CoA in overdrafts is when they call the debt in.

 

My opinion and mine only. Barclays are in breach of BCOBS (from 1/11/2009) but also (I feel) in breach of the banking code for the time previous to this as what they have done is to the severe detriment of the customer.

 

I still think the SB case can be argued in court as Barclays 'could have' called in the overdraft in 2003. It was they that chose not to (either deliberately or by omission)

 

As for the default, a complaint to Barclays and the ICI

 

Is my thinking correct. Comments??

[Peterbard]

As has been discussed (at length) the CoA in overdrafts is when they call the debt in.

 

My opinion and mine only. Barclays are in breach of BCOBS (from 1/11/2009) but also (I feel) in breach of the banking code for the time previous to this as what they have done is to the severe detriment of the customer.

 

I still think the SB case can be argued in court as Barclays 'could have' called in the overdraft in 2003. It was they that chose not to (either deliberately or by omission)

 

As for the default, a complaint to Barclays and the ICI

 

Is my thinking correct. Comments??

 

You could have a point regarding the BCOB. As far as the COA is concerned on an overdraft, all the authority says that this comes under section 6 of the act, and this says on demand.

 

If this were a loan of course and not withstanding the SOL it would be due on the time it was made, however this common law requirement is amended by the act.

[fletch70]

I think that Barclays are probably technically correct however it does seem very unfair. How it can be proved if it is deliberate or omission will be very hard . I would say without the bank statements going back to 2003 it will be very hard but if it was an authorised OD there must have been fees of c£10 a month (top of the head calculation) and that is not unheard of amount

[Desperate Daniella]

Just another thought:

 

You can't pay your credit card bill and the creditor can't supply you with an agreement so you stop paying, but instead of defaulting you immediately they keep the account running and take payments by offsetting from your current account. Every time they try this the FOS tells them they can't do it so they have to refund you.

 

They eventually default you about seven or eight months after your last repayment after they have failed at the third attempt at offsetting.

 

Do you think they could class these as payments to the account even though they had to give them back?

 

Especially if prior to attempting offsetting they have already demanded payment in full?

 

In this situation would the SB date start at the demand for payment in full, or the date they defaulted the account?

[sequenci]

I don't think there is anything wrong with banks exercising their right to set off - so long as it's allowable as per the terms of the various agreements.

 

I guess what would be up for discussion is whether or not such an action would delay or completely stop the cause of action from ever happening.

[Desperate Daniella]

That is what I am wondering.

[sequenci]

It probably would.

 

Think about this though, imagine that the cause of action has already started - and then the bank exercised their right within six years. Would *that* re-set the clock? I wonder if that would be regarded as a payment by an agent? I doubt it would - I bet there is case law. I'll go off to hunt. BRB!

[sequenci]

I can't find anything, but I cannot imagine that it could be argued that the bank was acting as the debtor's 'agent'.

[Peterbard]

I think as far as the credit card company taking money form other accounts. The question of re setting the COA would depend on the terms of the agreement, if the offsetting was only on default of the CC account then I would consider the taking of funds to be confirmation that the account had been closed and the taking of the funds would confirm this.

If they allowed setting off as part of the conduct of an active account it would make no difference, the COA would still only occur when the account was defaulted and the termination clause kicked in.

 

I agree that the transfer of funds form another account would not be considered acknowledgment under section 29, in that the payment would not be authorized by the debtor.

 

There is an argument I suppose that the authorization would be implicit in the terms of the agreement, but from reading a lot of case law on the subject it seems that the acknowledgement really has to be quite concrete before it triggers section 29.

[Desperate Daniella]

It probably would.

 

Think about this though, imagine that the cause of action has already started - and then the bank exercised their right within six years. Would *that* re-set the clock? I wonder if that would be regarded as a payment by an agent? I doubt it would - I bet there is case law. I'll go off to hunt. BRB!

 

Ta ever so!

[Desperate Daniella]

I think as far as the credit card company taking money form other accounts. The question of re setting the COA would depend on the terms of the agreement, if the offsetting was only on default of the CC account then I would consider the taking of funds to be confirmation that the account had been closed and the taking of the funds would confirm this.

If they allowed setting off as part of the conduct of an active account it would make no difference, the COA would still only occur when the account was defaulted and the termination clause kicked in.

 

I agree that the transfer of funds form another account would not be considered acknowledgment under section 29, in that the payment would not be authorized by the debtor.

 

There is an argument I suppose that the authorization would be implicit in the terms of the agreement, but from reading a lot of case law on the subject it seems that the acknowledgement really has to be quite concrete before it triggers section 29.

 

Thanks, Dodge.

[sequenci]

I think as far as the credit card company taking money form other accounts. The question of re setting the COA would depend on the terms of the agreement, if the offsetting was only on default of the CC account then I would consider the taking of funds to be confirmation that the account had been closed and the taking of the funds would confirm this.

If they allowed setting off as part of the conduct of an active account it would make no difference, the COA would still only occur when the account was defaulted and the termination clause kicked in.

 

That's a good point. All the offsetting I've ever seen has taken place once the credit card or loan account has been defaulted and terminated.

[Desperate Daniella]

I've been looking at various T&Cs. Capital One, for example, says they want their money immediately after the agreement has ended so it's pretty clear when their COA is, though thankfully that is not one I have to worry about!

 

But Barclaycard says:

 

Either of us can end this agreement by giving written notice to the other.

 

Unless there are exceptional services we will give you 30 days' notice before we end this agreement. You must return cards......

 

You must make all payments due and this agreement will continue until all amounts you owe have been paid including amounts added to your account after the notice to end the agreement.

 

 

So even if they issue a DN apparently the agreement is still running.

 

Does this mean it is still running until they (may) sell it a couple of years later?

 

Also, if they cancel your card, why can't that be seen as terminating the agreement?

[fletch70]

Just another thought:

 

 

Careful..I thought I heard a bang!

 

Most of my credit cards have the 30 day notice bit in as well but if they have given notice that the agreement is ended OR issued a DN then they COULD demand full payment there and then . Any allowances to pay it off by installments would only be the same as being in a DMP. That's my thoughts , do I make sense

[Peterbard]

Yes I think those are contractual(no fault) termination clauses, they enable the creditor to terminate the contract in none default cases. Many of these clauses say that the sums under the contract will be due upon termination, the problem as far as enforcement is concerned is that the court would not enforce an action for the early repayment of credit, unless the agreement had been breached by the debtor and just because the creditor chose to terminate the agreement.

 

There are usually clauses which enable the creditor to withdraw the ability to draw down credit as opposed to termination of the agreement, the difference being principally that the ability to draw funds can be re-instated whereas once an agreement is terminated it is gone.

[fletch70]

Somehwhere and I can not find it there was a thread where one of the paid for DMCs stated that correspondence from the creditor reset the clock . I emailed them as did DX . I got some ****ty email back with a sort of Argh but if the debtor replies they will reset the clock and you need to read the whole thing, ball cocks . I also had a reply from the OFT, standard reply but jesus how can they let such blatantly wrong advice exist

[birchave0]

Re offsetting

 

I had a court battle last year with First Credit over a Lloyds TSB credit card account they had purchased.

In August 2006 I had "issues" with Lloyds over the PPI on the account, I complained and opened a dispute, I also cancelled the PPI.

By January 2007 I was no further forward, they refused to refund my PPI even after I placed the account into dispute and gave reasons.

 

My last payment was made by cheque in Jan 2007...

 

From March 2007 Lloyds helped themselves to funds from my current account despite my objections.

In October 2007 I moved my current account to Natwest, there was no funds left to take as with the offset and the bank charges I was £900 OD!

This account was sold by Lloyds to Lowells......

 

So fast forward to 2013, the previous year First Credit had purchased the credit card account. In February 2013 I received a claim form from Northampton.

The top and bottom of it was they wanted 8k off me, and we were going to court so they could get it!

 

My defence was TSB account, last payment Jan 07, they said Oct 07 so not TSB.

Top and bottom of it is after 3 court visits under 2 different judges, they both came down on my side and said the offset payments were not made by me so not an acknowledgement.

I won, they lost........

 

Judges both said the same, TSB starts on the date I made a last payment, as this was the last time I acknowledged the debt

 

I hope this helps with your discussion, or gives you food for thought

[Desperate Daniella]

Thank you for posting that here.

 

 

I think that is really great news.

 

 

DD

[citizenB]

Indeed, the payment has to be made by the debtor and not by way of offset by the creditor.

 

There was one on CAG a while back, where the Creditor decided to refund charges/interest back to the account - only a very small amount, but then tried to claim that the clock had been reset. Thankfully others knew differently.

[Peterbard]

Yes well done