Statute Barred definition - is there one?

[julian]

Has the court case resolved the definition of the 'cause of action'/actual date from which SB can be determined? I may have been sleeping.

For example payment due is an amount determined in the agreement e.g. 5% of the amount due on 16th calendar day of each month
If you make any payment below 5% you are in breach. If you miss 16th day you are in breach of contract.

The agreement makes allowance by stating that there are fees incurred for late payments and continuing interest charges. So they invite null and partial payments. This infers a agreement is in place until rescinded, as at any time you could start repaying, as many have been able to do.

If the Default issue is the cause of action then it should be consistently applied eg for any partial payment. That would make many happy as one can be issued and may occur years before problems arise.

If any payment given or taken (by DD) outside the terms of the agreement is considered as payment, the only state to ensure cause of action for SB is no payment whilst there is a debt.

Any debt on the card appears to renew the agreement. e.g. if one has a credit card unused for 5 years and then used to the limit and not paid, when is SB in 6 years or 1 year? Does a new default count? Does the new debt restart the SB clock? In this case, no payment was due whilst no debt, but also no debt was acknowledged for 5 years.

Head hurting?

[cymruambyth]

Re: Statute Barred definition - is there one?

The court case regarding statute barred timings is still ongoing.

[Never-In-Doubt]

Re: Statute Barred definition - is there one?

It's much simpler in reality

we argue SB (cause of action) occurs when you breached the contract. That'll be when you didn't do what you were supposed to. So assume you had a card and had to pay repayments on 1st of month but you missed the payment due 01/01/2009 then the CoA should be around 01/02/2009 - regardless that you pay in arrears - it's used like that to cover you so you aren't too early.

They argue that Termination affects CoA and creates a new one so they're saying if they terminate and default you 3 years after first missed payment, that's s new CoA. We say no it can't be as otherwise they'd all wait 5 years then reissue defaults prolonging SB to 11+ years. That's wrong. That's what a DCA tried and what we're appealing as the judge kinda messed it up first time by ignoring various other case law that he should have looked into.

[Roger]

Re: Statute Barred definition - is there one?

Thank you Niddy
It seems that rather more than CoA is at stake here.
If a DCA took over a live Credit Card Agreement they would have to issue a New Card and Account Number (because these are Internationally Unique to the Creditor).
All a DCA does is buy Debt and enter a private financial repayment/settlement agreement (which is not under CCA).
The CCA and CoA can be by Action of Debtor OR Creditor(sic not paying) It isn't at the discretion of just the Debtor or just the Creditor.
Issuing Defaults Notices at a DCA's pleasure could create CoA that exceeds any period irrespective of Statute Bar. Utter Madness!!
I think the IOC should step in here because it means never being Debt Free!

[cardiac arrest]

Re: Statute Barred definition - is there one?

It's much simpler in reality

we argue SB (cause of action) occurs when you breached the contract. That'll be when you didn't do what you were supposed to. So assume you had a card and had to pay repayments on 1st of month but you missed the payment due 01/01/2009 then the CoA should be around 01/02/2009 - regardless that you pay in arrears - it's used like that to cover you so you aren't too early.

They argue that Termination affects CoA and creates a new one so they're saying if they terminate and default you 3 years after first missed payment, that's s new CoA. We say no it can't be as otherwise they'd all wait 5 years then reissue defaults prolonging SB to 11+ years. That's wrong. That's what a DCA tried and what we're appealing as the judge kinda messed it up first time by ignoring various other case law that he should have looked into.

Just for ignorant people like myself...when you say 'missed payment on 1/1/2009
and that is cause of action (SB) date I presume that is if you don't make any payments after that date ? sorry to sound a bit thick.

[Never-In-Doubt]

Re: Statute Barred definition - is there one?

Just for ignorant people like myself...when you say 'missed payment on 1/1/2009
and that is cause of action (SB) date I presume that is if you don't make any payments after that date ? sorry to sound a bit thick.

Yea - assuming there's no payments / acknowledgments. If you do either those then that's the new CoA.

[Never-In-Doubt]

Re: Statute Barred definition - is there one?

Thank you Niddy
It seems that rather more than CoA is at stake here.
If a DCA took over a live Credit Card Agreement they would have to issue a New Card and Account Number (because these are Internationally Unique to the Creditor).
All a DCA does is buy Debt and enter a private financial repayment/settlement agreement (which is not under CCA).
The CCA and CoA can be by Action of Debtor OR Creditor(sic not paying) It isn't at the discretion of just the Debtor or just the Creditor.
Issuing Defaults Notices at a DCA's pleasure could create CoA that exceeds any period irrespective of Statute Bar. Utter Madness!!
I think the IOC should step in here because it means never being Debt Free!

Sorry, I'll clarify - the DCA or Original Creditor (OC) should still adhere to the Principles for the Reporting of Arrears, Arrangements and Defaults at Credit Reference Agencies which stipulates that a default should occur as soon as reasonably possible. This in layman means that they should be defaulting an account within 9 months from date of last payment, so using my example above - if you missed the first payment on 01/01/2009 then you should be defaulted by the end of October 2009.

Remember, I am explicitly referring to a CRA Default above.

Regards the Consumer Credit Act (ie s.87/s.88), the OC should issue a default notice in line with s.87 before they can Terminate (which, like the CCA Default, would be a new CoA) and like above, they shouldn't be waiting for years - we feel (it's not law but how we feel and how we argue) they should align with the principles as noted above in respect of CRA Defaults which was determined by lenders, CRA's and the ICO. So if they don't create the CoA by defaulting you the same time they add a D entry at the CRA then surely that is their fault - they can't be allowed to issue a s.87 DN years after adding one to your CRA. That's why we're arguing it in the case mentioned.

See here for the difference between a CRA & a CCA Default --> http://forums.all-about-debt.co.uk/s...87-s88-CCA1974 as that explains it pretty easily.

Hope this helps.

[julian]

Re: Statute Barred definition - is there one?

So the assumption is that where is no money owed, can't be in default.

If money is owed and no monies are ever paid, then the breach of contract occurs when the monies fall due, normally the day after the 'due by' date. The default, in olden days written in Dunn and Bradstreet's ledgers, depends on when the finance house declares it to be in default.

If one continues to borrow and no payment is made eg.up to the limit or until the card is rejected, the breach of contract remains on the date following missed payment.

If one pays a bit of the outstanding debt but not 5% and continues to spend, one remains in breach of contract even if completely paid off.

So CCA removes/confuses the creditor/debtor breach contract context as used in ordinary contract law. This occurs because the finance houses wanted to spread their nets and grab more, but they have plunged the depths, muddied the waters and dragged up pond life.

I shall watch and wait. Thanks all.

[Roger]

Re: Statute Barred definition - is there one?

Thanks Niddy
That's my thinking.
The CoA has to be the CRA Default.
Issuing a New DN to change CoA and claiming that its for CCA purposes only should be reported to the ICO because it has to be a change to the CRA Default Entry as it changes the SB date!
A DCA that does this should be struck off!

[PlanB]

Re: Statute Barred definition - is there one?

Has the court case resolved the definition of the 'cause of action'/actual date from which SB can be determined?

The short answer to your question is until or unless a 'higher court' (i.e. the Court of Appeal) makes a ruling there is no answer to your question.

Any judgment by a County Court DJ is not legally binding on any other DJ in another case in the County Court. It may be persuasive at best but it can be ignored.

As far as I'm aware there has been no decision from the Court of Appeal yet because no appeal has been made on this legal argument yet (I'm willing to be corrected on this point).

As far as I'm aware there have been some County Court DJs who've accepted that the last payment is the cause of action, and other County Court DJs who disagree believing the DN is the cause of action or even the termination date of the loan term regardless of the last payment is the cause of action (obviously that latter point only relates to fixed term loans not running credit card agreements) .

An appeal of a County Court decision would normally go to a Circuit Judge (County Court level) to decide. If the Appellant wants to appeal the appeal decision of the Circuit Judge then that would have to be done at the Court of Appeal. Which hasn't happened yet as far as I'm aware.

In each case permission to appeal has to be sought and can be refused by the Circuit Judge, and that refusal can be appealed (if you follow me).

So like I say there is no definitive answer to your question (yet).

Plan B x

[Never-In-Doubt]

Re: Statute Barred definition - is there one?

Thanks Niddy
That's my thinking.
The CoA has to be the CRA Default.
Issuing a New DN to change CoA and claiming that its for CCA purposes only should be reported to the ICO because it has to be a change to the CRA Default Entry as it changes the SB date!
A DCA that does this should be struck off!

No - the CoA needs to be reasonable - I'd say within 9 months is suffice to determine whether the account is in default

But that's just my views.....

[Never-In-Doubt]

Re: Statute Barred definition - is there one?

So the assumption is that where is no money owed, can't be in default.

If money is owed and no monies are ever paid, then the breach of contract occurs when the monies fall due, normally the day after the 'due by' date. The default, in olden days written in Dunn and Bradstreet's ledgers, depends on when the finance house declares it to be in default.

If one continues to borrow and no payment is made eg.up to the limit or until the card is rejected, the breach of contract remains on the date following missed payment.

If one pays a bit of the outstanding debt but not 5% and continues to spend, one remains in breach of contract even if completely paid off.

So CCA removes/confuses the creditor/debtor breach contract context as used in ordinary contract law. This occurs because the finance houses wanted to spread their nets and grab more, but they have plunged the depths, muddied the waters and dragged up pond life.

I shall watch and wait. Thanks all.

Yes - you can't spend on the card and then say that wasn't a CoA - of course it was. The key here is the CoA that the DCA / OC wish to use - forget everything else you know, it's down to them. So assuming they follow normal rules you'll find the account will be terminated and defaulted within 6-9 months from the date you last paid - if you don't pay for 3 months you wouldn't be able to spend up to the limit so your point is kinda moot in a sense.

So long as some dodgy Judge doesn't go and say the Default (s.87) can occur anytime then we'll be ok.

[PlanB]

Re: Statute Barred definition - is there one?

The court case regarding statute barred timings is still ongoing.

Which is precisely why it can't be discussed on this thread on the forum

Plan B x

[Roger]

Re: Statute Barred definition - is there one?

Thank you Plan B

[julian]

Re: Statute Barred definition - is there one?

The normal payment can be up to 56 days after purchase. I could quite easily spend spend spend! (but don't) Depending on APACS the bank may not have complete sight of everything eg when a merchant uses floor limits.......

If sensitive, maybe it could be removed from prying eyes so viewers need to logon to view??