Hoist Portfolio 2/? claimform - old Barclaycard 'debt' ***Claim Still Struck Out ***

[Wandsworth2015]

The CCA was sketchy indeed, I couldn't find anything that was relevant, there is a link below stating the ICO guidelines from Experian, what are your thoughts on this, it would look like the guideline is 3-6 months?

 

If this is the case, it would make my case a little less powerful?

 

Time framework from the ICO ....

 

Although there will be some flexibility in the definition of a breakdown, we

believe there should be general rules for the minimum period of arrears

which should exist before a default can be filed. Equally there should be

a maximum period after which, if anything is to be recorded with a credit

reference agency, a default must be filed. The following are in line with

the practices currently adopted by most lenders.

 

• Accounts should not be routinely filed as being in default where full

payments or those due under a rescheduled agreement are fewer

than three consecutive months in arrears.

 

• Accounts should normally be filed as being in default where those

payments due have not been received for six months.

This time framework only relates to filing defaults. It does not affect the

lenders’ ability to continue to report accurately on the extent of arrears

using monthly status codes. We recognise that may not always be

appropriate for products which advance credit over either a very short or

very long-term.

 

http://www.experian.co.uk/www/pages/downloads/compliance/guidance_on_defaults.pdf

[AndyOrch]

Yep.....but then again the Limitations Act on Statute Barred will reiterate 6 years only...yes from the cause of action/breach of contract....but not when the cause of action should be triggered...so with that in mind the LoP either needs to be drafted to tally or the ICO needs to redraft to bring it in line with the LA ?

[Wandsworth2015]

This is confusing to say the least, how does the judge make a decision, I guess we're steering that by providing the basis for our argument using the LOP section 5?

 

I have a natwest loan that was linked to the same period (for the business in my name) that didn't register the default for 24 months from the last payment, if I was able to change that based on this law, it would be removed from my credit file and I would have no debts, the Hoist one will be removed in one week.

 

It's been a long road, having a clean credit file will enable me to move out of this house I share with 5 people, not great when you're a 47 year old man.

 

Anyway, this whole process is rather interesting....

[AndyOrch]

Its is a very murky industry which Government refuse to deal with and simplify..the whole industry requires an overhaul and by industry I mean Creditors/DCA/And Credit Reference Agencies.

With the rise in Cyber Fraud/Mobile Banking etc it is an area that will only get worse and more stringent regulations introduced.

[mercyblue]

The issue in this case is whether the dn was issued in a reasonable time.

The link Andy kindly provided clearly shows a dn must be served before a case can be brought

 

"Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

 

(a)to terminate the agreement, or

 

(b)to demand earlier payment of any sum"

 

That's pretty unequivocal.

 

Furthermore

even without that

how does the creditor know that it's the last payment till there actually is a missed payment

unless they happen to be clairvoyant.

 

 

Then after that what about letters before action?

What about the overriding objective (to avoid court action).

What about pre-action protocol?

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct#6.1

 

If it was clear cut barred surely

 

""The last payment made was 5th Oct 2009

thus according to the limitations act 1980 blah blah etc

it became statute barred at the 6th oct 2015 so sod off mr debt collector" would suffice.

 

The last payment was 5th Oct so the creditor becomes aware of the problem on the 6th Nov

(how can they possibly be aware before that????)

 

The creditor cant issue legal proceedings on that day that would be completely un-proportionate

what opportunity have you had to resolve the situation (could be a genuine mistake after all) none.

 

So the creditor sends you a reminder saying you haven't paid us

- if you don't your simply not complying with cpr 1 - a pretty big no no.

 

After that would a final reminder (chance) before issuing a letter before action be unreasonable

I don't think so (even the council are legally obliged to send you two reminders

before they can issue a summons

 

 

I know that's different but illustrates my point as to what parliament would seem to consider reasonable

I do know that is criminal law.

 

 

But it does seem to be fairly recognized business practice as well I should know the amount of times I've had final reminders!!).

 

So a default notice acts as a letter before action as Section 14 of the CCA 2006 amends section 88 of the 1974 Act

to change the timescales to rectify the default from 7 to 14 days.

 

That gives a minimum timescale from the last payment of a bit under 3 months 2x reminders + dn +14 days to remedy with a few days for postage.

 

Lets not forget all the prerequisites required for an action to be brought

must be in place before the sb clock starts the actual time of the breach is immaterial.

 

Of course 3 months on the last payment date would still leave this sb'd anyway.

 

Any thoughts on that Andy after all it was your good self that draughted the defence?

[AndyOrch]

Thoughts on what MB ?

[Wandsworth2015]

Actually, on that point of default.

 

All creditors were sent letters stating the debt was being transferred to a debt management company (who subsequently went bust).

 

This was on the 5th Nov, so at that point the consumer (i.e. me) was clearly in breach of agreement and it would be terminated, i.e. in default.

 

Therefore no psychic powers needed, they were well aware of the dire financial situation I was in and the course of action taken.

[mercyblue]

Andy in answer to you.

 

The fact that the defence states the claimant has tried to extend the limitation period by 7 months by the failure to issue a dn till then

- your words. What's the point of that ?

 

Would you accept a dn that was issued on the 6th dec no? 6th nov ? no ? 6th oct no?

If you say no then clearly the issue of a dn is an irrelevance (despite s87 cca)

and you don't accept that a dn is required at all it doesn't matter when it was served.

If you say yes an earlier dn would be acceptable then on what timescale are you using?

 

"The Default Noticed was issued 24th November 2009 and served a month after the initial breach

thus the cause of action delayed by 1 month and the Limitations period prolonged to 6 years and 1 month

which in effect allows the creditor to stop time running and the creditor having effective control of when a limitation period begins or even starts to run."

 

would be equally valid?

What about the extreme and put 1 day in the above?

If your answer is yes then please explain why you think its possible to circumvent s87 completely.

 

Your defence seems to imply that a dn must be served on the day of the last payment otherwise its extending the sb date ?

Perhaps you could clarify that or if you accept there is even a need for a dn?

 

I would have thought my previous post was clear either;

a) A dn is required but the timescale of it counts or

b) A dn is irrelevant and the sb has already started regardless.

Edited July 22, 2016 by mercyblue
posted too soon acidentally

[shamrocker]

"I would have thought my previous post was clear either;

a) A dn is required but the timescale of it counts or

b) A dn is irrelevant and the sb has already started regardless."

 

Both could be wrong.

[catquest]

The old MBNA agreements ( and perhaps some card agreements even now) stated that the full balance became payable on a breach of the agreement.

 

In such a case some have argued that contractually the SB did start with the first missed payment date and the issue of a DN is only a statutory provision, this was successfully argued in the case Swansea Council v Glass.

 

However more recent agreements usually state that statutory requiremnts have to be followed BEFORE the full balance is due.

[mercyblue]

Well the case you cite catquest is a housing case so a notice in terms of that is not the same as a dn in terms of the cca,

however it does show that statute barred is not as simple as first may appear.

 

All agreements are going to state they need to comply with the legal requirements how could they not? for example

hsbc terms

"b

We may end this Agreement in any of the

circumstances set out in Clause 9a, or if you

seriously breach the terms of this Agreement (for

example, if you do not make repayments on time

or at all) and demand repayment of the balance on

the Account, in each case we will serve on you

any notice required by law."

 

or barclaycard

We may close your account and require immediate repayment of your total outstanding

balance if we reasonably believe that you’ve broken this agreement regularly or

seriously.

We may also require this from your estate in the event of your death, if you

become bankrupt or if you are likely to become bankrupt. We’ll always follow any legal

requirements before we close your account.

 

[Wandsworth2015]

The DN I received never requested the account to be paid in full, but to pay the missing monthly payments, despite me contacting them and informing them that my financial situation was now dire and my ability to service my debts was now impossible due to the business folding, and that the credit levels I achieved was given in the first place was because of the business.

 

I never avoided any of my debts, I contacted the creditors openly, they just didn't like the answer. I gave them all the options at the time to go legal and lets fight out the decision in court. As it turned out, both the administrators and the debt management company both went bust in 2015, funnily enough when some of the creditors reared their ugly head.

 

It is what it is and I realise this isn't a simple case as it has the potential to impact many people and resolve a lot of issues for many, so I am keen on getting to a very clear cut defensing argument before I present my defence.

[mercyblue]

A DN doesn't ask for the full amount it only asks for the missing payments to rectify the default then after the 14 days the dn gives you that's when they can ask for the entire amount.

http://moneyaware.co.uk/2011/09/default-notices-what-are-they-and-what-do-they-mean/

 

I doubt most people are in a position to do much about a dn when they get one.

[Guest]

the requirement for a dn (if applicable) has been in place for some time. and statute supercedes contract.

 

'lets not forget' an argument to make is (as some experienced judges etc have said)

is that a breach is when the process of recovery/complaint can start

(as per basic contract law) and that such

a dn (if applicable) is a procedural/administrative step re that process that is re the breach complained of.

 

ie the breach is the cause of action/right. ie thats when the sb clock starts.

if a dn is not satisfied by a debtor, then the breach complained of therein continues as the cause of action. the cause complained of in the claim form.

[AndyOrch]

The cause of action is the date the first missed payment happens..that is the breach of the contract...irrespective of the 14 days allowed to rectify or whenever the default notice was issued.

The LA refers to a cause of action...as stated the cause of action is the breach not when the creditors decides to issue a default notice or decides to register it (as most DCAs on here appear to rely on)..

 

The LA also states unequivocally 6 years without acknowledgment or payment.....not that the 6 years starts from when the creditor issues the DN...simply from the cause of action.

As stated the cause of action is from the first missed payment...the debtor has broken the terms of the agreement.

 

MB the Defence in this thread you refer to was drafted in such a way to preempt the above arguments..that a creditor can not elongate the passage of time..he can't turn 6 years 7 months into the period to defeat the statute barred argument just because they decided or remembered or their software triggered a DN several months after the breach.

 

That's my thoughts...if you wish to continue this debate then I would suggest you start a thread here in the FLI to discuss the issue in more depth...although its already been discussed to death already.

 

Don't be taken in of what you have read on the internet or seen or have encountered yourself ....Judges can be wrong and are always led by Claimant counsel round to their way of interpretation....obviously.

 

Regards

 

Andy

[Wandsworth2015]

Thanks Ford and Andy, that makes a lot of sense, so basically the cause of action is always the last payment received, that's historic and known. I can see that Barclays in this instance, attempted to get me to "restart" the clock so to speak, with not just the missing payments but any at all, even £1, at the time I had a rock-sold argument on why that wasn't going to happen.

 

I know the way forward, as we agreed.... I've now got everything together, but I'm waiting as long as possible before I send copies to the court and claimaint

[AndyOrch]

No its the first missed payment

[Guest]

Thanks Ford and Andy, that makes a lot of sense, so basically the cause of action is always the last payment received, that's historic and known. ..

alot can depend on the circs/type of credit.

for eg, if there has been no breach prior but just a notice of demand (eg as in BMW case), then it cld run from expiry of that notice which wld then be the breach.

 

as andy says, the claimants often rely on the dn/default date, and bmw, as the sb date. but even in bmw the judge there said the decision may not be applicable in all cases.

 

with credit cards at least, it should be from around the missed payments (breach). which is what the national debtline for eg also says.

 

whether a district judge on the day will agree or not?

[mercyblue]

Well myself, Andy and Ford are always going to disagree on this particular issue that's clear. You've chosen a clear course of action wandsworth. Hopefully I have shown that there are some counter arguments that are very likely to be brought up that you should be aware of if I have done that I would feel vindicated.

Andy is right the opposing counsel will try and bring the judge round to their way of thinking and it can be very subtle if they are any good.

Clearly you've realized wandsworth by your posts that it's not as simple as may first appear. I cant really add anything more without going round in circles apart from this.

What are you going to say when in court when the opposing counsel brings up s87 quoting from it that no action can be taken without a dn (I would add if I was doing it that s87 was there to stop precipitous claims and so protect the consumer)

I don't expect you to answer that on here was sort of rhetorical but is the sort of thing you need to consider.

[Guest]

Well myself, Andy and Ford are always going to disagree on this particular issue that's clear. ..... Hopefully I have shown that there are some counter arguments that are very likely to be brought up that you should be aware of if I have done that I would feel vindicated.

Andy is right the opposing counsel will try and bring the judge round to their way of thinking and it can be very subtle if they are any good.

........

not wrong there, we disagree at least re credit cards. my view is from what i said ( from cases etc where judges have stated so), and what seems to make sense logically and legally.

you have shown, and nothing wrong to do so, as is known on the forum that they always try to go with the dn/def date if its in issue.

the thing is that sometimes you post as if your view on it is absolute eg that previous post of yours. its currently open to argument, which a cagger needs to do and convince a DJ away from the 'haves'.

[Guest]

What are you going to say when in court when the opposing counsel brings up s87 quoting from it that no action can be taken without a dn (I would add if I was doing it that s87 was there to stop precipitous claims and so protect the consumer)

what i posted as one eg

statute gives the debtor an opportunity to rectify the breach complained of (the protection you refer to). if not rectified, then the breach continues as the right/cause for the claimant to sue on. imo.

[Wandsworth2015]

To show why I feel that the DN date can be flawed, I have a natwest loan (also taken out for the business), they issued it 24 months after the first missed payment, despite exactly the same scenario. I communicated with them on the 5th November, that all payments would now stop and they were to communicate with the Debt management company.

 

By that very statement of action, I was in breach of their agreement and in theory a DN should of been immediately issued or at the very least, after 3 missed payments.

 

Obviously I'm also holding out that the claimaint cannot even produce the agreement that they wish to legally pursue, in which case this defence in a mute point.

[Guest]

in theory a DN should of been immediately issued or at the very least, after 3 missed payments.

 

yes, they shld be issued promptly as such (thats one of the points andy made).

afaik, after the first missed payment cruds send out a reminder. after the second/third, either another reminder and/or a def notice. so, as you say, when its close like that the bar start date may become moot. its when there is some time between the missed payment and the def notice, and bar is in issue in between. a creditor shldnt be allowed to dictate/control bar re when they issue a dn when they have control of its issue. defeats statute, intention of parliament, equity, CL, etc. the ico is not much help there either, as they shld provide a definitive timeline. imo

[mercyblue]

yes, they shld be issued promptly as such (thats one of the points andy made).

afaik, after the first missed payment cruds send out a reminder. after the second/third, either another reminder and/or a def notice. so, as you say, when its close like that the bar start date may become moot. its when there is some time between the missed payment and the def notice, and bar is in issue in between. a creditor shldnt be allowed to dictate/control bar re when they issue a dn when they have control of its issue. defeats statute, intention of parliament, equity, CL, etc. the ico is not much help there either, as they shld provide a definitive timeline. imo

 

Actually I would agree with that statement Ford!! The whole point of the dn is to terminate the contract and hence be able to sue the other party. Until the contract is terminated (in some way) you cant sue someone, otherwise you are sueing somebody you still have a contract with seems a nonsense imo.

Now this case is more unusual in that the creditor informed the creditor that they weren't going to be paid (I would imagine most people simply ignore all correspondence from the creditor when everything goes belly up).

The general pre-action protocol (paragraph 3) is covered as both parties are aware of each others position. So the issuing of reminders could be considered unnecessary.

Which would come back to what I put in a previous post that imo the question is was the dn served in a reasonable time.

 

Now my position here would be the banks system is automated and it just spews out the letters automatically up to the default. Now by my reckoning if that was 2 reminders then default you would be in the clear any more than that then your not.

[mercyblue]

Sorry that above post should read 3 reminders not 2.