CAPITAL ONE - STATUTE BARRED

[PlanB]

Re: CAPITAL ONE - STATUTE BARRED

wow - thats some letter - thanks

I've got your PMs

Are you 1,000 % sure of the date of your last payment made to Capital 1 with evidence/proof? (never mind the £1 CCA issue)

You need to be absolutely certain of your legal stance before you go in guns blazing.

Asking the creditor to prove their legal stance is no bad thing (post #13) if it stalls for time before there can be no doubt whatsoever that the this debt is SB on 26th of this month by their own admission in writing.

What you don't want is a county court summons from them so you're faced with a "tell it to the judge" situation.

This is only my personal view.

[TRAVELLER]

Re: CAPITAL ONE - STATUTE BARRED

wow - thats some letter - thanks

[PlanB]

Re: CAPITAL ONE - STATUTE BARRED

. . . In the interests of avoiding costly and unnecessary legislation . . .

litigation?

[ScabHunter]

Re: CAPITAL ONE - STATUTE BARRED

I wouldn't be messing about with this one.

If I was in this situation, my next letter would have two objectives. I would be attempting to get Clownell to acknowledge and accept the statute barred status of this alleged debt. Failing that, I would want to have the last letter on the pile, so I could demonstrate to any judge that I had done everything possible to avoid unnecessary legislation by making Clownell aware of the facts of the situation. I would also make it a formal complaint, as I would want the ability to escalate this to the relevant authorities should they not immediately back down and accept reality.

This is what I would send -

FORMAL COMPLAINT

Ref : [xxxxxxxxx]

Dear Sir,

I am in receipt of your letter dated [xx] November 2014, and note with extreme concern that you either do not seem to be aware of the legislation governing your own purported business, or are deliberately misquoting it to obfuscate the facts regarding this present situation.

In the interests of avoiding costly and unnecessary legislation, and of expediting a reasonable conclusion to this matter, I therefore feel obliged to make you aware of the following -

Limitation Act 1980, Section 5

I draw your attention to Section 5 of the Limitation Act 1980, which states -

“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.”

This is relevant for two reasons. Firstly, it states the length of time which must elapse before an alleged debt becomes statute barred under this legislation, and, secondly, it gives the determining factor for the starting date of the six year period as the date of the cause of action.

Your letter of [xx] November 2014 mistakenly asserts the following - “please note the last payment date as per the Limitations Act only applies after the default date.” On the contrary, the date of a default, or its registering with the credit reference agencies, is entirely irrelevant to both the Limitation Act 1980, and the accrual of any cause of action. Indeed, neither defaults nor credit reference agencies are even mentioned in any section of the Limitation Act 1980.

The six-year limitation clock begins to run from the “date on which the cause of action accrued.” In the case of this account to which you have given the reference [xxxxxxxx], that date would be date of the first missed payment. A payment was made to the account on [xx] September 2008. Therefore, as Capital One Bank issues bills on the 30th of the month, the first missed payment would have been for the bill issued on 30th September 2008. Consequently, the date at which this alleged debt became statute barred is 1st October 2014.

Consumer Credit Act 1974, Section 78

I also draw your attention to Section 78 of the Consumer Credit Act 1974, which is the prevailing legislation for this running credit account. This states -

“The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any currently payable under the agreement by the debtor to the creditor, and

(c) the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.”

Note that this section of the Act prescribes that a statutory fee of £1 is payable with any request in writing for information regarding a running credit account.

The payment which was made to Capital One Bank on 26th November 2008 was just such a statutory payment. It was enclosed with a letter which explicitly stated that those funds were a statutory payment prescribed by Section 78 of the Consumer Credit Act 1974, and were not to be used for any other purpose. A copy of this letter is retained on record.

Limitation Act 1980, Sections 29 and 30

Finally, I draw your attention to Sections 29 and 30 of the Limitation Act 1980, which cover the issue of fresh accrual of action based on acknowledgment or part payment.

Your letter alleges that the statutory payment made pursuant to Section 78 of the Consumer Credit Act 1974 on 26th November 2008 constitutes such a fresh accrual of action, but Section 30 subsection 2 of the Limitation Act 1980 explicitly states, “For the purposes of section 29, any acknowledgment or payment – (a) may be made by the agent of the person by whom it is required to be made under that section.”

For a payment to constitute a fresh accrual of action, it must therefore be made by the alleged debtor themselves, or by an agent acting on their behalf. Obviously, if a statutory fee paid under the provisions of Section 78 of the Consumer Credit Act 1974 is subsequently misappropriated and applied to the alleged debtor's account on the sole volition of the recipient, that misappropriation has occurred entirely without the knowledge or consent of the alleged debtor.

Consequently, in this specific case, the statutory fee paid on 26th November 2008 does not constitute a fresh accrual of action, regardless of any subsequent misappropriation or misrepresentative accounting.

Conclusion

I assert once again that this alleged debt is statute barred. Consequently, I require -

* An acknowledgement of the statute barred status of the account reference [xxxxxxxxxx], along with a written notice that this account is now permanently closed on your system
* An assurance that I will receive no further harassment regarding the aforementioned account,
* A formal apology for your employees' use of deceit in misrepresenting legislation and attempting to extract money under false pretences
* An offer of compensation for the unwarranted harassment which has already occurred, and the wastage of my own time in dealing with such harassment; commensurate with the prevailing Litigant in Person rate and therefore not less than the sum of £50

Any other response, or no response, WILL result in this case being escalated to the relevant regulatory authorities.


Yours Faithfully,

Traveller,

If you do send this, or anything similar, make sure that you send it recorded. If Clownell were going to attempt court with this, they would love to deny having received such a letter.

I also don't see any point in playing silly buggers trying to shepherd this past 26th November. That date has no legal relevance or importance. Clownell, in their fiction, have already stated that any payment before the default date does not affect statute barring, and 26th November 2008 was before the default date.

When one fairy story expires, they will just invent another one to take its place. What you need is an acknowledgement of the ACTUAL statute barring date, or an ongoing complaint regarding their refusal to accept this actual statute barring date.

SH

[Deepie]

Re: CAPITAL ONE - STATUTE BARRED

Only 12 days to go . . . .

Like waiting for Christmas .....

I will send letter asking them for proof of last payment and wait for response. Then shall send letter when they respond regarding the "misappropriated" £1 CCA fee

Try not to worry .....

[TRAVELLER]

Re: CAPITAL ONE - STATUTE BARRED

I will send letter asking them for proof of last payment and wait for response. Then shall send letter when they respond regarding the "misappropriated" £1 CCA fee

[PlanB]

Re: CAPITAL ONE - STATUTE BARRED

Well it's their fault for admitting in writing that you haven't made a payment since 26th November 2008. They fell right into your trap in their reply to your SB letter

Only 12 days to go . . . .

[TRAVELLER]

Re: CAPITAL ONE - STATUTE BARRED

Nice try Lowells but you're wrong!

The Default date has absolutely nothing whatsoever to do with SB which is reliant on the last payment made or acknowledged by the debtor not acknowledged by the creditor (i.e. their Default).

I bet they know this too but they're just trying to con you. I've seen that letter several times across the forums. Shame on them for attempting to deliberately mislead you.

That's something else you can discuss in your follow-up conversation by letter. I see no need to deal with it in this immediate letter unless you want to knock it all on the head in one go. I would simply ask them to prove you paid something in November 2008 and see what comes back.

thanks - I suspected they are trying to do this to me - I am now clear of my next step

[PlanB]

Re: CAPITAL ONE - STATUTE BARRED

Her e is extract from their letter - "As per your original email I can confirm the date of default for your former Capital One account is the xxxxx February 2009 with your last payment being made on the 26^th of November 2008. (This was the £1 fee)

On this basis, the amount currently outstanding of xxxxx is liable, please note the last payment date as per the Limitations Act only applies after the default date.

I am confused what they mean with the default date?????

Nice try Lowells but you're wrong!

The Default date has absolutely nothing whatsoever to do with SB which is reliant on the last payment made or acknowledged by the debtor not acknowledged by the creditor (i.e. their Default).

I bet they know this too but they're just trying to con you. I've seen that letter several times across the forums. Shame on them for attempting to deliberately mislead you.

That's something else you can discuss in your follow-up conversation by letter. I see no need to deal with it in this immediate letter unless you want to knock it all on the head in one go. I would simply ask them to prove you paid something in November 2008 and see what comes back.

[PlanB]

Re: CAPITAL ONE - STATUTE BARRED

Maybe you could say something along the lines of "I did not make a payment to my account in November 2008. Please will you send me evidence/proof of your declaration/assertion/claim which I believe to be untrue".

Perhaps you should refer to "this account" not "my account" so that you won't be acknowledging the debt, although I guess the SB letter has already done that anyway.

[TRAVELLER]

Re: CAPITAL ONE - STATUTE BARRED

Her e is extract from their letter - "As per your original email I can confirm the date of default for your former Capital One account is the xxxxx February 2009 with your last payment being made on the 26^th of November 2008. (This was the £1 fee)


On this basis, the amount currently outstanding of xxxxx is liable, please note the last payment date as per the Limitations Act only applies after the default date.


If you can please confirm your current position with this account and if you wish to set up an affordable repayment plan?"
I am confused what they mean with the default date?????

[PlanB]

Re: CAPITAL ONE - STATUTE BARRED

I will write its on hold for 7 days so is it best to wait a few days before I ask the question ??

What's the date on their letter to you? Add seven days and make sure your letter to them arrives the day before that (at the least).

In theory (and under CPR rules) they should send you a Letter Before Action before issuing proceedings but sometimes they don't especially if they're in a hurry to beat the SB clock.

So why not keep your file out of the automated system by asking them a relevant question which is what evidence to they have to prove that your account is not statute barred since you've already written to tell them it is, so if they want to call you a liar they damn well have to prove it.

By denying you've made that November 2008 payment you will not have acknowledged the debt but pick your words carefully.

It will be a good letter to have on the file if they do issue a summons.

[nightwatch]

Re: CAPITAL ONE - STATUTE BARRED

yep longer you string them along the better x

[TRAVELLER]

Re: CAPITAL ONE - STATUTE BARRED

I was thinking along these lines and I appreciate your thoughts. I will write its on hold for 7 days so is it best to wait a few days before I ask the question ??

[PlanB]

Re: CAPITAL ONE - STATUTE BARRED

sent SB letter - they have replies saying my last payment was 26th November 2008 but this was craftily applied to my account - it was the £1 fee and I stated "not be used for any other purpose..." so they are saying it's not SB and I am still liable. I have copy CCA letter to prove this was not a £1 payment but the fee..." anyone help with wording of a reply please - thanks they say after next 7 days collection activity will continue

So by their own admission the debt will be SB in thirteen days (even though you know it's likely to be an earlier date). As long as they don't issue proceedings on or before 26th of this month they're stuffed (that's a legal term ) . Imagine producing that letter from them as an exhibit to the court

It's a tough call but maybe a response is not a bad idea. If it was me I would ask a question so that they will have to reply to you. That should kill a few more days to be on the safe side (their self-confessed SB date). Maybe you could say something along the lines of "I did not make a payment to my account in November 2008. Please will you send me evidence/proof of your declaration/assertion/claim which I believe to be untrue".

After that you can have the argument about the £1 CCA fee (in a follow-up letter) but there's no need to reveal all your cards at once since your mission is to get to the finishing line (26th November according to them) without a claim being served on you.

Keep 'em talking

I'm not giving you advice, I'm just telling you what I would do to string out the correspondence passed the 26th November.

If you ignore them they may ignore you and press the MCOL button.