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Moon phases


Statute Barred set aside?

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Statute Barred set aside? Empty Statute Barred set aside?

Post by MBE2017 on Tue Jul 16, 2019 1:11 pm

Hi,

I have an alleged debt for a credit card, despite many requests the company and DCA are unable to provide the original. This started approx five years ago, the DCA issued proceedings approx two years ago even though they had not provided the CCA etc, which on submission of my defence it was set aside. Apart from a one off offer to settle since things have gone quiet for the time being.

My question is, having started proceedings does this mean statute barred in the future will not apply, even though no evidence was provided as requested? If so does this mean I have in effect been put in limbo where the DCA can try anytime they wish in the future?

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Post by Mrblue on Tue Jul 16, 2019 5:44 pm

Nope not at all. Statute barred will still be 6 years (except Scotland - 5) from the date the default was issued SO LONG AS you had not paid a penny towards it since Smile
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Post by MBE2017 on Tue Jul 16, 2019 9:45 pm

From the stepchange website..”The laws set out the period in which a creditor has to begin court action. The length of time varies depending on the type of debt and is known as the ‘limitation period’.

For most types of debt in England, Wales and Northern Ireland, the limitation period is six years. This applies to most common debt types such as credit or store cards, personal loans, gas or electric arrears, council tax arrears, benefit overpayments, payday loans, rent arrears, catalogues or overdrafts.”

This is why I asked the question. The DCA has gone to court without supplying the requested paperwork within the six year limitation, so the way I was reading this was even though the case was set aside a year or two ago, the actual debt might never be statute barred due to the court action having been started maliciously.

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Post by waylander62 on Tue Jul 16, 2019 10:11 pm

if this has already been to court then the statute barred clock resets

you state they issued proceedings and then it was set aside after you defending ? this does not make sense ? please explain why you had to set aside.

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Post by flyingfish on Wed Jul 17, 2019 10:24 am

Surely a set-aside still leaves the claim stayed, at best, doesn't it?  If the claim was dismissed, found in your favour, then any new proceedings could only be raised within the original six year period.

I think we need to know more about exactly what actually happened in that case. Maybe the OP said "set aside" but in fact the claim was dismissed or discontinued.

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Post by flyingfish on Wed Jul 17, 2019 12:09 pm

@handle wrote:correct, the original time runs when a claim is set aside,dismissed or discontinued.
That's the bit I'm not convinced of.  In fact it's not the claim that is set aside, it's the judgement.  The claim still exists, and normally the set aside would be to allow the defendant to make their defence if they'd not done so already, and/or to attend a hearing.  Set aside does not in itself end the proceedings.

However back to the first post the OP stated "on submission of my defence it was set aside" which sounds more like discontinued or possibly dismissed on the papers.

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Post by MBE2017 on Wed Jul 17, 2019 1:03 pm

My apologies guys, I used the wrong phrase.

The DCA applied for court action, I submitted my defence pointing out no CCA original had been supplied arguing they were wasting the courts time in doing so, and then the case was stayed. So now I am wondering whether the statute barring will kick in in a couple of years time, or am I in effect in limbo?

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Post by flyingfish on Wed Jul 17, 2019 1:14 pm

Unfortunately I think you're in limbo, there's apparently no limit on how long a case can remain stayed.  It may be possible to apply for it to be struck out on the basis that they've not proceeded once you made your defence.

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Post by waylander62 on Wed Jul 17, 2019 11:47 pm

no, if the claim is stayed then it remains stayed unless either the claimant or defendant take some form of action.

by leaving it stayed you are giving the claimant time to piece together some form of useable evidence to then apply to lift the stay and strike out the defence.

what i would do is to make an unless order application to the court for the claimant to provide the documentary proof of their claim or that the claim be struck out, this application will cost you £255 unless you are on certain benefits or low income, however you can apply for the claimant to pay the costs of this application as well as general costs for you defending the claim.

i have seen many times the claimant apply suddenly to lift the stay 2 or more years later and you only usually get 7 days to respond to this application.

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Post by waylander62 on Thu Jul 18, 2019 9:48 am

@handle wrote:be careful about making applications. you will be liable for costs, even if its ;art of a small claim where costs are not applicable.

what costs ? you are just asking the court order them to do what they should have already done ?

if they come up with the paperwork at a later date and apply to lift the stay and succeed then they will likely win the case anyway ?




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Post by MBE2017 on Thu Jul 18, 2019 11:43 am

“The other little matter is if you discretely call the court and ask whether they have paid the claim fee. That will give you an indication of how long they expect to stay.

I suspect that they have started proceedings to be within limitation but are not ready, and they have loads of other cases to prep. They will probably not have paid the claim fee.

When you find this out, let us know.”

This has been five years so far, the credit card company and DCA have both failed to provide a copy of the original CCA, so personally I doubt it is available. Will the court give the payment information to myself?

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Post by MBE2017 on Thu Jul 18, 2019 1:42 pm

DCA is Cabot.

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Post by waylander62 on Thu Jul 18, 2019 9:49 pm

the claim fee is not payable at this stage !? so a waste of time as it will not tell you how long they expect to stay

making a claim for summary judgment is a risk ? please explain how applying for summary judgment is better than an unless order ? on what grounds would this application be made ?

No NO they cannot charge exhorbitant fees just because you make an application, particularly an unless order for documents that you are entitled to and should have had, a classic cabot move, go to court with no evidence then at a later date hit the defendant with an application and hope they fail to respond and win !

i have said my piece and will leave it at that

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Post by Mrblue on Thu Jul 18, 2019 10:44 pm

Waylander62 knows what he’s talking about and I have seen it with my own eyes ie posts / threads of advice that have ended in success.
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Post by Lopsum on Fri Jul 19, 2019 3:44 am

the thing is , nobody has seen it so its just your word handle and now its causing too much friction, and i believe this is all intentional on your part handle.
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Post by waylander62 on Fri Jul 19, 2019 7:23 am

applying for summary judgment is likely to result in the judge calling a hearing to resolve the matter unless you know how to make a good solid application usually done by an experienced solicitor, IF and this is likely you are called to a hearing then it is YOU the debtor/LIP up against a trained solicitor

i am not saying this is right or fair but tends to be the way, costs are minimal in small claims so if the costs become exorbitant then it is likely that the summary judgment application may be the cause of this

as for the fee, the hearing fee is payable when there is a hearing if it is stayed then there is no hearing so there is no fee

it depends on the claim and the type of case involved but this is general for CCA debts and overdrafts

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