Hi Todd390, Have you acknowledged the debt?? I would make a complaint to the FOS if the mortgage company did not contact you about the debt until 6 years after it was repossessed. If they are signators to the CML then they should not be chasing you for it now - unless of course your ex has acknowledged or made payments as even if sold the purchasing company are also bound by the CML code of conduct. If the former is true then complain NOW - as the FOS will not look at your complaint once a County Court Claim is issued. If the debt has been sold - then you need to see an assignment - no valid assignment no debt - plus....although I am not sure on this one....if it has been sold as a pure debt, with the benefit of the covenant of the deed of mortgage, then it is statute barred after 6 years, and not 12. Although you will need to see a copy of the assignment to know this. Be sure to write "I do not acknowledge any debt to your company" on all your correspondence. Jody

Ill be there AFD...but don't really drink that much! Jody

Goodness, I am absolutely amazed and shocked by your post missbling....this is a terrible situation for you to find yourself in, but as you have already discovered there are lots of great people on here who are willing to help you get to the bottom of this. As a first step can you calculate how much you have been paying for the car over the period of time that the "loan" has been running? If the can't provide a copy of the loan agreement then it is unenforceable, but lets not jump the gun - get your CCA request sent off and see what comes back. You will then have loads of people telling you exactly how to go about dealing with this situation. As for the bullying - I'm not sure whether reporting them to the OFT is going far enough - I would also be complaining to the Law Society about the solicitors who allow them to use their headed notepaper...this smacks at fraud to my mind!! Keep us posted on your progress and try not to worry...support is here - no matter how bad it gets. Jody

Hey Tide, Hope you got the case law that I sent you...if it transpires that your counsel think any of it is relevant would you mind posting the reference on your thread as I quite literally sent you what I had copied and pasted over the last year! If you need a good law costs draftsman I can recommend a family member - who only ever works for the defendant, and for a percentage of the costs reduced (which is not a bad deal in my opinion), but obviously I am not touting for business on his behalf! Let us know how you get on with counsel...again I can recommend a good solicitor in Bristol if you find that yours is a little too clicky! Jody

hi mtm - you're right - they would be the mortgage lender....but I had asked on this point before and someone told me that interest would have a separate cause of action, so they could actually claim for the past 6 years.... and even after reading the s20 link you gave three times I still cannot get my head around it!!! jody

mtm are you saying that where a claim includes interest under s69 on a mortgage shortfall that they are not entitled to that interest if more than 6 years have elapsed? Jody

mtm Can you explain why - statte of limitations say they cannot have interest on a deed after 6 years - yet the County court Act says they can.... Why is this so and which is right?? Jody

phoned the court - deemed served on 10 July - so have advised to call back on 18 to see if they have responded. Everything crossed that they don't!!!! Jody

Finally - did you S.A.R - (Subject Access Request) the bank and the Solicitors?? I would do this now - they have 40 days in which to comply under the Data protection Act - and you should get all the information back before a hearing - even with a little to-ing and fro-ing where they say you're not entitled and you say you are! jody

Hi lotuselite... Did they send you a Letter Before Action?? I don't think that the claim is actually legal if they didn't send you this and it is certainly against CPR procedures, but I am not qualified and there are others on here who may be able to advise you better. I've cobbled the following together....but without seeing your holding defence I am not altogether sure how much of this applies to you...also this is just a suggested response given from me to you and is strictly without prejudice (sorry, but thought I'd best cover my a**e!) It should only be used if you actually want to go to court - if you don't then you will have to tick the box for a months stay to allow you to settle - but this would require you to pay the money in a lump sum - which is something I believe you are not able to do. Also I'm not altogether sure whether you might not be better off letting this go to court and getting a monetary judgement order and then agreeing a payment plan - in this way you will show the judge how much you can pay - even if its a minimal £5 - and then as long as you stick to the payment plan they cannot come back to you for the house...you may then be able to pay it off with a very minimal amount! Q1-3 - NO Q4 - they have not sent information that I have requested under CPR18 rules and I cannot therefore mediate upon something where I do not have all the facts. Section C – pre action protocols I have asked for disclosure of specific documents under CPR18 Rules, which have thus far not been forthcoming – I cannot therefore supply anything in return until they comply with my request Section F - proposed directions 1. If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order. The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously; Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation the courts ability to deal with the case will be inhibited. The request for disclosure was made to ascertain material facts which are vital to my ability to file a defence to the action, without disclosure I have not been able to ascertain if indeed this alleged debt is barred under the Consumer Credit Act or what impact the Act may have upon this case The claimant has had a reasonable amount of time to supply this documentation and yet they still have not complied, I view this as purely an attempt to frustrate matters and inhibit my abilities to offer an effective defence to these proceedings or consult legal counsel I further request that any request made by the claimant to strike out the defence pursuant to CPR 3.4 or a request under part 24 for summary judgment be turned aside and not complied with as it will set me at a disadvantage and will be unjust and extremely unfair and deny my right to have a fair hearing under the Human Rights Act 1998 This should be on a separate sheet.... and should include the claim number the the county court that it is being heard in Between Nat West Bank plc – Claimant And Lotuselite – Defendant Defence Draft Order for Directions The Claimant shall within 14 days of service of this order send to the Defendant and to the Court the following which were requsted under CPR 18 Rules on ** May 2008 and as yet has not been forthcoming: 1. A true copy of any executed credit agreements and any terms and conditions that applied to any of the accounts at the time of default and at the time the account was opened. 2. All records you hold on me relevant to this case, including but not limited to: a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME) c. True copies of any notice of assignments and/or default notices or enforcement notices that you or the original creditor sent me, with a copy of any proof of postage that you hold. d.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable). e. Details of any collection charges added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers. f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied. g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998 h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed. i. Copies of statements for the entire duration of the credit agreement. 3. Any other documents you seek to rely on in court. If the Claimant fails to comply with this order, the claim will be struck out without further order. The Defendant shall within 21 days thereafter file and serve the following: An amended defence sufficiently particularised in response to the documents supplied by the claimant If the Defendant fails to comply with this order, the Defence will be struck out without further order. I would wait until the hearing to bring up the fact that they have put in claims against both you and your wife for the full amounts on both accounts...as one of the other is an abuse of process in my opinion.... Jody

Hi Lotuselite sorry - got my forms in a twist!! So, you need to send an AQ. First a couple of questions: 1. How much is actually outstanding on both accounts - the loan account and the current account that is in joint names?? 2. I assume that you do not have enough equity in your house to clear these loans? 3. Are you trying to avoid getting a ccj on your credit file? I ask these because it may effect what you put in your AQ... Cheers, Jody

Hi Lotuselite, Do I take it that you filed the holding defence? In which case what is the n150 for?? If you could let us know and can take it from there? Jody

Hi Guys, S.A.R - (Subject Access Request) on bank account - this wouldn't help as the charges that we know about (£695) date back to 1991 - 1999. Loan B - we still don't know what this is for - its not the mortgage as the bank stated that loan b was "other charges" that had to be separate to the mortgage account because they did not qualify for the tax relief that you used to get on mortgages. But we don't know what the "other charges" are for - although reverse engineering their statement of account (one of two that the sent that have different dates, layouts etc) it would appear to be insurance charges... Judge - we have requested the information that we think that we need in two ways: 1. Through a SAR direct with "Howard" - they have not fully complied with this and we have made a second complaint to the ICO - but are still waiting 2. CPR18 request for the information - again not fully complied - they stated at one point that the information we had requested was actually a SAR, but we argued that it was not - all the info that I requested through CPR18 is directly relevant to how much may be owed and under what terms any MIG may operate etc.... I believe that the judge has sent the "comply or strike out" because I have repeatedly asked him to issue directions to the claimant to comply with the CPR18 request...and kept him informed of the fact that the claimants asked for a month's stay to allow the case to be settled - and then completely ignored our offer - when we wrote asking them what they thought 3 months later they said that they hadn't had time to read the letter....incidentally in a telephone conversation between my mate and the solicitors they said that he wouldn't be able to use the offer he made in March against any costs awarded because it was not made as a part 36 offer....but we've pre-empted that by telling the judge that an offer was made when we asked for the directions for them to comply with the CPR18 request for a third time in May. If there is any justice my mate shouldn't have to pay any costs as if they had supplied the information requested last year then we would have made the offer based purely on the amount allegedly owed after underselling the property (around £3k), and the without prejudice offer that was made in March had £1700 added to this for the claimants costs - in the name of "fairness" - if it goes to court and my mate wins on the estoppel, wins on underselling and illegal bank charges then they will owe him about £18,000. Now that would be sweet!!! Jody

HI Patrickq1, yes I issued the CPR 18 request back in December, and have twice requested that the judge issue directions to make them comply - but the judge hasn't issued any directions on this - he just issued the directions that if they don't tell them how they tried to settle then he would throw it out.... I've also done a S.A.R - (Subject Access Request) for the information - but they haven't fully complied with that either (missing papers, no breakdown's etc etc) so I have made an official complaint to the Information Commissioners Office - again! I suspect that the Loan B is statute barred under 20 (5) - 6 years. From what i can tell Loan B was not used to calculate the amount owed that led to the possession in the first place - which I find odd! I also found out today that the claimant instructed 4 debt collection agents - two of which are not registered as Data Controllers - ergo they are in breach of the data protection act! I also wish I could afford to see a solicitor to get info on whether the possession was legal in the first place, particularly because they did not notify my mate that he had shares which were valued at more than the amount outstanding..... It all stinks and I'm now wondering whether the payments made in 2005 and 2006 were actually made as these two figures appear to add up to the initial amount they claimed he owed - and it is these two payments that stop their claim being statute barred through 12 year limitation! it would help if he didn't have a brain like a sieve and could actually remember anything Ah well - guess I just have to keep requesting info and waiting and then requesting it again.... I don't have much strength left in me at the moment, not for this anyway, but I'll keep plodding! Jody

Hi tomterm8 I thought it would be 19 July - although I admit to getting a bit excited by the prospect that it might be 7 days from the date the judge made the order - before logic took hold! I will now wait with baited breath until 21 July - and then I'll make that call - but I don't hold out much hope for then non-complying with the court order. I am assuming that if the claimant does respond they are also obliged to copy us in on the information? If not is there a form I can fill in to obtain the information they have sent the court? Jody

tide, I'm reading all my case law notes in preparing my mates skeleton argument and I came across a point that may be of interest to you - apologies if you are already aware of it, as I may have copied and pasted from your thread in the first place, but I didn't fancy reading all 15 pages of your post to see... Failure of a Default Notice or a Termination Notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119) Jody

Hi Tide, Just wondered what you were up to?? My mates case is in the lap of the courts at the mo - the judge has ordered the claimant, within 7 days, to file full details of their attempts to settle the claim and "in default the claim be struck out"....as they don't appear capable of answering our letters we are hoping that they don't answer the court either and the claim is stuck out - if this happens are they able to refile? We have also just heard that a similar case has been allowed to go to trial based on the banks none compliance with the CML code of conduct - according to the judge the defendent has an arguable case for estoppel as they did not "begin recovery action" within 6 years - the claimant's solicitors tried to argue that they had used tracing agents to try and locate the defendent, but the judge said that that did not in itself constitute recovery action! Here's hoping that all cases where the bank has not obtained a monetary judgement order and the defendent has not admitted liability within the six years that they are all thrown out!!! Jody

We've just had a letter from the court: General form of judgment or order - dated 10 July 2008 The judge has ordered: within 7 days of service of this order, the claimant do provide the court with full details of attempts made to settle the claim since the stay imposed by the Court on ** February, and in default the claim be struck out. Dated 27 June 2008 What does this mean?? And when is the date that the 7 days are up? 19 July or are they already up? We made an offer to settle in March, and then heard nothing - the claimant then made an offer to settle for double the amount we had originally offered on 16 June. Under CPR rules we requested clarification of their offer but have heard nothing since. I know that we can compel them through the courts to clarify the offer, but given the above from the judge and the fact that we now believe there is a case for estoppel via their none compliance with the CML code of conduct Anyone have any ideas what we do now? Do we wait the seven days and if we receive nothing from the claimant then we file for summary judgement? How do we do this? If the claimant responds to the court - Do we ask the court to amend our defence - although I had been led to believe that I need to seek the court's permission to do this and that it should be requested at the first hearing? Any thoughts views ideas gratefully received. Jody

Hi PatrickQ1, Thanks for the input - the only thing with estoppel is that I'm not sure if its estoppel by representation, promissory or what.... We have now decided that we are going to go to court with this. The only thing I am not sure on now is how we go about defending the thing....I'm aware that I need to prepare a list of documents that will be relied upon, but do I have to amend defence and include all of the following, or would we be allowed to argue points 2-5 below in court on the day, if point 1 fails? 1. CML code of conduct signature so no chase after 6 years - as no monetary judgement was sought they are estopped from chasing it now. 2. if that fails £3k is statute barred being property insurance - well we assume it is they haven't provided the paperwork yet.... 3. plus £5K is subrogated rights, to the insurance company, but they are signatures to the CML Code and they haven't chased 4. Plus 12K undersold property by 5. plus £690 of illegal bank charges The claimant owes the defendent £1K plus interest. I have a couple of law books but if anyone can recommend one for the process of multi-track cases I'd be grateful. cheers, Jody

A ray of hope..... a similar case went to court this week for a hearing - the claimants had asked for summary judgement, but the defendent argued that the was a question mark over whether they had a case to answer as the claimant was a signature to the CML code of conduct and they had not "started action" within six years.... the claimants stated that they had because they had tried to contact them....the judge ruled that there was an arguable case for 6 year limitation because contacting someone, or trying to contact someone was not deemed as "starting action" - bringing a claim in court was "starting action".... so there may be a 6 year limitation period after all - despite what the statute says..... Jody

Anyone have any thoughts on the above??

bump anyone?

Hi All, It is HBOS who are taking this to court as owners of Halifax. Through the SAR process and through Part 18 Requests after the claim was filed we have found out that: There was a MIG and it paid out the cost associated with the repossession and the amount of loan B, but we have yet to get a breakdown of what loan b was - or indeed a copy of the MIG. I.e according to the statements received through a SAR the loss on the account was 10K, based on the amount outstanding on loan A (the mortgage) less the amount received on sale of the property. But they are claiming the full 15K through subrogated rights to the insurance company. They have sent a mortgage deed - but this is in my mates and his ex-girlfriends name. He took over the mortgage when they split up - but they have not sent paperwork in his name only and the claim says that he is "jointly and severally liable" for the debt? There is a Loan B - but we can't seem to get hold of a breakdown of how the £3k here is made up (but I think it may be insurance premiums). Would this mean that this portion is statute barred under the 6 years rules? There are £695 worth of charges for late payments fees - surely now classed as illegal after the OFT case? They have not proved that they contacted my friend within the 6 years laid down by CML. hence the question mark over estoppel. They did not inform my mate that there were shares in Halifax that he could claim. Re our issuing our own Claim - the underselling of the property has not been raised yet as a defence as we are waiting for a hearing so that I can ask for permission to amend the defence and raise a counter claim for the underselling, the bank charges and possibly the amount of Loan B - as we still don't know what this is related to and the figure was not included in the discussions where they say the account is three months in arrears - it would also have not been in arrears had they mentioned that there were 200 shares in Halifax that were my mates, but they held them because the account was in arrears!!!! So - given the above: 1. would any insurance fees (loan B) be statute barred? 2. is the MIG statute barred - I know about subrogated rights, but neither they nor the bank contacted my mate about the shortfall within 6 years. 3. if claiming underselling do I claim for the equivalent of what other houses in the same street sold for or do I reduce this by 10%? 4. Do I counter claim for the fees or just use them as a set off? Even without the MIG being statute barred if adding the full amount of points 1, 2 and 4 together they would owe my mate £1,000, if they can't claim the MIG this goes up to £6,500 they owe him and if he can also have the underselling then this goes up to £18,800 plus interest. Anyone have any ideas? Jody

Hi all, Just a brief update. The solicitors have made a Claimants part 36 offer for 2/3rds of their original claim, so I have made a counter offer for a lower amount which takes into account the amount that I believe the property was undersold by, the illegal bank charges etc. Whilst seeking clarification that the Claimant offer if accepted and paid would be in full and final settlement and that the MIG company or their successors would not have any claim. Assuming they come back and say that accepting the claim would be in full and final settlement is there anything to stop us issuing our own claim (as Tide has done) and going after them for the £12K that the property has been undersold by?? If anyone could answer this I would be grateful. Cheers, Jody

Hi Jansus, Don't worry - I have my own thread and am fully up on the case law now for underselling, for MIGs the CML Code of conduct and Estoppel!! I just thought I ought to justify here why I would not recommend the company you suggested. Unless they take an offer that is on the table then we are going to find ourselves in court as Tide did...and am steadily picking Tide's brain...and helping where I can. If there is anything such as justice then TIDE will get everything back that he's due - mind the sols in our case said "there's no such thing as fair - just the law" Which given the way things have been handled makes a mockery of the justice system - and Woolf's Law Reforms. Jody