Statute barred question

[postggj]

Yes

 

but guidance is just that

 

guidance, it has no basis in law

its not statute legislation

[BRIGADIER2JCS]

Agree but do we not rely on the guidance that if informed

that a debt is SB it considered unfair to pursue if the debtor

informs the creditor that it is SB and will not be paying, this is not statute

but guidance.

What the crux of these 2 cases is the contact BEFORE THE SB DATE,

and the OFT Guidance on this situation.

[postggj]

yes but continued enforcement is contary to the admin of justice act

 

the statute of limitations state its unlawful to take action once informed statute barred, not guidance by the oft

 

guidance means nothing

 

its just a way a court expects a party to behave and has no legal status

 

take an employment tribunal

 

an ET court expects a litigator to use the ACAS code of practice first, again, not statute law, only guidance

 

the key is acknowledge the debt

 

END OF

[BRIGADIER2JCS]

Hi post I'm going to do a lot of reading in the next month

in order to mount defences on these two cases.

I thank you sincerely for tolerating this on a Sunday evening.

 

Redards,

 

Brig.

[postggj]

BY ALL MEANS

 

IT MAKES A CHANGE TO HAVE A HEALTHY DEBATE BY TWO PEOPLE ON THE SAME WAVE LENGTH WITHOUT ANY BACK STABBING:madgrin:

[BRIGADIER2JCS]

How true:madgrin:

[spartathisis]

Sounds more like the DCA's are desperately looking for anything to hang their hat on, guidelines are just that. They choose to ignore many of the guidelines when it suits them, cake and eat spring to mind.

 

No doubt some will be thinking that they can pull the wool over some of the judges eyes, as with the Carey case.

[moonwoman]

Wow folks, perhaps it wasn't such a stupid question after all! I shall watch with interest.

Thanks

moonwoman

[BRIGADIER2JCS]

I have put the question to the OFT verbally

and by e-mail today, the verbal reply was an

inconclusive maybe, might no be, would

need to seek clarification.

So will wait for the response to the e-mail.

[BRIGADIER2JCS]

Just had a conversation with an advisor at Consumer Direct re: Section 2.14 (b) para (2) of OFT

Guidance On Debt Collection.

She has stated that if a creditor has made regular attempts to contact

a debtor and can prove that letters of phone call have been made/sent bfore

the statute barred date and before the debtor has informed the creditor

that they will not be paying the the creditor can still pursue, it would be

down to a judge to allow or disallow proceeding, but such proceedings

could be started.

 

I'm waiting for information from the OFT for confirmation.

[cerberusalert]

That's a bit of a non-answer really.

 

The only way they can prove contact has been made is by showing their mail has been signed for by the person they are contacting. or would a reconstituted/reconstructed log of letters & 'phone calls suffice? I doubt it.

 

EVEN IF NOT READ BY YOU indeed.

[BRIGADIER2JCS]

That's why I asked now for a definitive answer from

the OFT.

I can see the argument that the creditor has made

all possible effort to contact the debtor is open to challenge

but such correspondence is archived as I have found in the past at some cost,

I think it hangs on the fact that the effort to contact has been made

during the 6 year period,and the debtor has NOT stated the debt is SB or refused to pay.

 

I have 2 cases now running on these lines, and previously they

had numerous letters that they ignored, and had not realised

that the debts could be (no proof at this stage) stat barred,

the ''creditor'' started litigation in both cases a couple of

weeks after the SB dates, claims have been issued.

We have counsel advising but it will be a long process.

[panther12]

The way I see it is the creditor has had 6 years to commence court action so why wait till after SB. I wouldn't be overly concerned about them continuing to ask as it's only their own time & effort wasted, but even with regular attempts of contact prior to SB I can't imagine a judge allowing proceeding when they've had 6 years previous to issue but didn't.

[BRIGADIER2JCS]

It seems that it is not the question of waiting 6 years as we all know debts

are sold and assigned at all times often the DCA's are not aware that the debt

is reaching stat barred as they are not given that information when it is sold

or assigned therefor they will often have been sending out letters during

the 6 year period , and may continue to do so after the SB date, and if

the debtor has not stated the debt is stat barred and they will not pay, then

the debt can still be recovered.

[postggj]

If the debt is statute barred and you receive a threatogram from a dca

 

then just write back stating statute barred then its game over

 

i can see this going the same way as if a debtor had a ccj , but the creditor waited over six years to enforce,

 

the judge will just say

 

tough

 

i realy do believe this is going noware and the dca will withdraw at the last minute to spare the judges scorn

[BRIGADIER2JCS]

Post, I'm really not sure yet where this is going!!

I wait for answers from the OFT.

[postggj]

i realise you are waiting on guidance from the oft , but thats the problem in a knutshell

 

its only guidance and not statute law

no matter how the words are twisted around

 

lets see what they come back with

[BRIGADIER2JCS]

Post, it seems ''we'' take parts of the guidance as being irrevocable as in

2.14 (b) it's unfair to press for payment etc.

but ''we'' ignore and refute the next para, as a breach of statute.????

[postggj]

If a creditor has been in regular contact with a debtor during the 6 year

period before it became statute barred, then we do not consider it

unfair to continue to collect the debt''

 

collect maybe

 

but enforce is another story

 

or am i barking up a new tree

[BRIGADIER2JCS]

That's the crux, but what is regular contact:madgrin:

[ims21]

Hi

 

Still following this one....and I'm getting more

 

In my simplistic, logical way of thinking...guidance is guidance and statute is statute.

 

What is the point of our legal system based on statute and case law if it can amended or re-interpreted by guidance?

 

 

Regards

 

ims

[BRIGADIER2JCS]

I think an am becoming more convinced, that what is bing

applied is that the debtor has NOT stated in writing that THE DEBT IS

STATUTE BARRED AND THEY WILL NOT BE PAYING, this appears to be

a requirement to prevent further litigation, but collection activity

can still be made.

[spartathisis]

Surely you cant tell a creditor it is statute barred until it is? They would not accept you saying it is SB in 18 mnths so dont contact me would they.

 

Not looked through thr guidelines recently, but I would bet there is a lot a debtor could use on a similar basis but a judge would not put up with it.

 

Business Dictionary

Definition

Recommended practice that allows some discretion or leeway in its interpretation, implementation, or use.

 

Says it all.

[BRIGADIER2JCS]

Exactly that is what makes section 2.14 (b) para 2 so dangerous,

it gives that lee way, and is easily interpreted in a number of ways.

[UnitedFront]

RIGHT let us see if we can't clear some very simple things up, first of all:

 

1) Statute Law is supreme and cannot be struck down or dis-applied by any judge, in any court, in this country (bar some very peculiar and unusual situations involving EU Law etc).

 

2) The OFT Guidelines are just that - GUIDELINES!! Holders of a Consumer Credit License agree to abide by them, but they can NEVER EVER EVER EVER be considered as in any way over or above any Legislation made by our Queens sovereign Parliament!!

 

3) PLEASE STOP TALKING ABOUT THE ADMINISTRATION OF JUSTICE ACT SECTION 40!!!! In consumer cases is DOES NOT APPLY ANY MORE!!!!! Instead please consider the contents of the Consumer Protection from Unfair Trading Regulations!!

 

Now, moving onto the issue initially questioned in this thread:

 

Put simply, it is quite irrelevant, in all honesty. Fact is, if the debt had become statute barred then there is no court in the country that can make you pay it. End of!!

 

An alleged creditor, debt collector (or any other person) simply writing to you cannot re-start the clock. An alleged creditor, debt collector (or any other person) speaking to you on the telephone cannot re-start the clock.

 

To restart the clock, you must either make a payment or a signed written acknowledgement (although I personally believe the omission of a signature would not be definitive if it could be proved that the letter was from the debtor and not a fake).

 

What the OFT say on this matter has no effect on a creditor's ability to get a Judgment on a statute barred debt - there is no chance, with a proper defence!!

 

What the OFT's guidance may mean is that the creditor can continue to write to you. They still can't do anything else to enforce the debt.

 

Hope this clears things up slightly.

 

Cheers

UF