Walsh1's UE Diary

[Walsh1]

Re: Walsh1's UE Diary

Nightwatch, thanks for that. They just irritate me. Don't want to do the wrong thing, lol

[Never-In-Doubt]

Re: Walsh1's UE Diary

I suggest that you send something along the lines of the following - same applies to anyone else that gets told by any DCA that SB commences from default date (which is incorrect!):




Dear Sirs,

Reference: 123456789

I recently advised that this account was statute barred - something you still fail to register. You have stated that the last payment to the account was made on 06/08/2008 which means that in line with section 5 of the Limitation Act 1980, this account is Statute Barred, You incorrectly assume that the creditor issuing a default notice changes the limitation period - it does not. It is clear you are trying to mislead and misuse the BMW v Hart Judgment in a deceptive manner and I must insist that this bullish behaviour ceases immediately. We both know full well that this Judgment does not apply here.

As this account is clearly statute barred I shall no longer communicate with you regards it. There has been no contact between us for over the prescribed period and therefore I have nothing left to say to you, if you would like to start action then please feel free. I will submit a detailed defence and also notify the court of your abuse of process and ensure a counterclaim is forthcoming. Your initial claim would be rebuffed as unlawful and vexatious.

I therefore do not expect to hear from you again, with regards to this account. If I do then I will formally notify the Financial Ombudsman Service & Financial Conduct Authority of your harassing and deceptive manner and ask them to investigate your suitability to retain a consumer credit licence, something I do hope we can avoid.

Yours faithfully,


Sign Digitally

[nightwatch]

Re: Walsh1's UE Diary

for now I would be inclined to send a one liner referring them back to your Final response that you sent in October (if you sent it?). also point out that you are now starting a complaint with the FCA over their underhanded tactics to try and bully you into paying a statute barred debt.
but hold on and see what others think
or ask Niddy for a custom one?

FORGET IT he did it while I was typing

[Riz]

Re: Walsh1's UE Diary

Presumably they are trying misapply BMW Vs Hart again in a deceptive manner. Sigh....

[Never-In-Doubt]

Re: Walsh1's UE Diary

Presumably they are trying misapply BMW Vs Hart again in a deceptive manner. Sigh....

Seems so......

I've edited the letter above to include a part about that - cheers

Info on case here --> http://www.lexology.com/library/deta...7-21b6701a273e

[CleverClogs (RIP)]

Re: Walsh1's UE Diary

Last payment was 06/08/08

Capita eorum sunt plenis stercoris.

They seem, once more, to have remembered to forget that it is their responsibility to prove that an alleged debt is not time-barred by the Limitation Act 1980 which, as they seem unable to produce a copy of the default notice, they may struggle to do.

That's why they are offering a discount.

Keep them talking for a month and then, even by their cock-eyed data, they'll be stuffed.

[Walsh1]

Re: Walsh1's UE Diary

Thanks Niddy and everyone for your help. Will do the letter as you said. Will send it after xmas. So by the time they deal with it, it will be SB anyway by their own admission. Thanks again. Will post the outcome. All have a great christmas!

[Walsh1]

Re: Walsh1's UE Diary

Help! Niddy why would BMW v Hart Judgment not apply. Just read it? Don't understand?

[Never-In-Doubt]

Re: Walsh1's UE Diary

Help! Niddy why would BMW v Hart Judgment not apply. Just read it? Don't understand?

Is yours a hire purchase contract? No.

Hence it does not apply.

Chill. Just send the letter above and send it in between Christmas and new year.

[Walsh1]

Re: Walsh1's UE Diary

Thanks, yep understand now. Will do and will post any reply. Thanks have a great Chridtmas

[CleverClogs (RIP)]

Re: Walsh1's UE Diary

Is yours a hire purchase contract? No.

Hence it does not apply.

I'd have said it was a bit more complicated than that, as it may be possible that BMWF v Hart could apply to any debt where there was an event that gave rise to a cause of action. In the BMWF case, that event was the letter unwisely sent by Hart repudiating the contract and thereby making the remaining balance immediately due. BMWF issued their claim just within the six years specified in the Limitation Act 1980 and hence their claim was not time barred; had they delayed by even a day, it would strictly have been too late.

In Walsh's case, the date of default is not known; Lowells seem to think that the date of default was 8 January 2009 and thus the debt would be time-barred on 09 January 2015 but, as there would be at least one public or bank holiday during the preceding 14 days, that would either seem to be nonsense or else an admission that the DN was defective. The date of the last payment is known, as being in August 2008 and thereafter, as no further payment had been made, the account was in arrears. One would expect that the creditor would start to press for payment of arrears after two payments had been missed, which takes us to October 2008. It is possible that the default notice was sent in November 2008 or at the start of December 2008 but it does seem unlikely that the creditor would leave it until Christmas (or, as some call it, the Feast of Sol Invictus) as Lowells would have one believe.

Their offer of a 'discount' may also suggest duplicity, as they are surely known for not being philanthropists.

Let's face it - they'd not fart if they thought they could sell it.

[Never-In-Doubt]

Re: Walsh1's UE Diary

Not quite sure I agree Cloggy. It's specific to Hire Purchase. It's never been tested on s.77/78 - only on this single s.79 related default...

As you say it (Limitation date) was (critically) affected by the (voluntary) repudiation

[CleverClogs (RIP)]

Re: Walsh1's UE Diary

I am not convinced that it only applies to Hire Purchase agreements, as the judgement indicated that the cause of action was not the cessation of payments - as Hart had averred - but the end or termination of the contract. In that particular case, Hart (unwisely) repudiated the contract and thus the limitation period started to run from the date of his letter. Bayernischen Mistenwagen Finance issued their claim just within six years of their receipt of that letter - and, although it seems not to have been considered in court, one must surely wonder why they took such a long time to understand that they would rather like to be paid.

In Walsh's case, the cause of action would again not be the cessation of payments (if the Hart case is to be followed) but the termination of the agreement upon the expiry of the default period without the default having been remedied.

It is a little difficult to say precisely when the agreement was effectively terminated by Walsh not having complied with the default notice, but we do know that the last payment was made on 6 August 2008. Walsh may have made that payment before the due date but, as that was the last payment made, the account was one month in arrears by the middle of September. By October, it would have been two months in arrears and the creditor would have been obliged (s.86C) to send a notice of sums in arrears no later than November 2008

If the creditor had not sent a notice of sums in arrears then, by section 86D - link - the agreement could not be enforced nor any interest charged until the creditor had complied with s86C. Sections 87 to 89 - link - provide a final period of fourteen days after the (deemed) receipt of a default notice before the agreement may/can/will be terminated.

By my reckoning, that takes us up to the third week in December 2008 or, at the latest, to the end of December 2008.



If Lowells leave their claim until then, they'll probably be too late.

[CleverClogs (RIP)]

Re: Walsh1's UE Diary

It would - of course - be time-barred by now if Walsh had told the original creditor (in September, October or November 2008) to whistle for their money

[Walsh1]

Re: Walsh1's UE Diary

They sent a notice of sums in arrears dated 5 Dec 2008