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Jamie-Law
Jamie-Law, Solicitor
Category: Bankruptcy Law
Satisfied Customers: 4640
Experience:  Solicitor
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Can a small claims court judgment be granted if the alleged

Customer Question

Can a small claims court judgment be granted if the alleged creditor cannot provide a Default Notice?I have read much about claims failing if the default notice is not in the prescribed format but need advice ahead of a hearing tomorrow where a default notice simply does not exist. Advice on which section of the Consumer Credit Act or subsequent regulations this would fall under would be appreciated along with any case law from higher courts to refer to would be ideal.
Submitted: 10 months ago.
Category: Bankruptcy Law
Expert:  Ben Jones replied 10 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 10 months ago.

Can you provide some more information the nature of the claim so that I can advise?

Customer: replied 10 months ago.
The claim is being by a third party debt collection company which seemingly has purchased the debt from Lloyds TSB. It relates to a Lloyds TSB American Express Credit Card that they are claiming belongs to me.The first issue is that I don't believe it is my debt and believe through electoral roll information I can evidence this in my defence.The second issue I believe the claim is statute barred but without a Default Notice I can't prove this.However, if the above two issues fail in my defence, I believe the fact that no Default Notice has been served/evidenced the case may fall foul of the Consumer Credit Act on that point alone and I can have it thrown out?Any advice much appreciated! Thanks :-)
Expert:  Ben Jones replied 10 months ago.

I have looked into your query in more detail but unfortunately it is not something I can assist with. I will therefore ‘opt out’ and a colleague better placed to deal with the nature of your query should hopefully pick this up soon. Please do not reply in the meantime as that will just assign the question back to me and you will experience a delay. Thank you

Expert:  Jamie-Law replied 10 months ago.

Hello my name is ***** ***** I will help you with this.

Did you raise lack of notice in your defence?

Customer: replied 10 months ago.
HiYes - I pointed out that there was no Default Notice in my witness statement and also the alleged creditor (a third party debt collection company) admit in their witness evidence that they have no default notice from the original lender.Any help much appreciated.Thanks, Chris :-)
Customer: replied 10 months ago.
Are there any real solicitors on here?Two have so far responded and both don't know the answer!!!
Expert:  Jamie-Law replied 10 months ago.

Ok - but you should have raised this in the defence Chris.

If it is statute barred then they need to show that it is NOT statue barred. They should disclose this in relation to the trial itself.

If they dont, they cant show that they can collect the debt.

So it is up to the bank, not you to show its not statute barred. 6 years from last payment or date of default, but THEY need to show this.
Can I clarify anything for you about this today please?

Customer: replied 10 months ago.
The question was about a Default Notice not being present - not statute barring?!!!
Expert:  Jamie-Law replied 10 months ago.

Again its for THEM to prove that it was sent. You are the Defendant, you do not have to do anything.

If they can't show it was SENT then no, they cant get Judgment

Does that clarify?

Customer: replied 10 months ago.
Thanks - that helps.What section of the Consumer Credit requires them to prove that it was sent?And is there any case law to support this?
Expert:  Jamie-Law replied 10 months ago.

99% of cases are not reported. Section 86B

Does that clarify?

Expert:  Jamie-Law replied 10 months ago.

And Section 87

Does that clarify?

Customer: replied 10 months ago.
Is there no higher court case where such a matter has been tested? I am sure as a lay person representing my self at court tomorrow the judge will ask for some evidence of my position?
Expert:  Jamie-Law replied 10 months ago.

There may be yes. But you will need to research that as this is a question of answer site and can not do research for you. You can search at:

http://www.bailii.org/

There are the cases McGuffick v The Royal Bank of Scotland Plc which you should read which can assist.

They are the leading cases.

Does that clarify?