Statute barred question

[BRIGADIER2JCS]

I totally agree but the point is simply that

i IF A CREDITOR HAS BEE N IN REGULAR

CONTACT WITH THE DEBTOR IN THE 6 YEARS BEFORE THE DEBT IS STATUTE

BARRED, EVEN IF THE DEBTOR HAS NOT RESPONDED, AND NOT

NOTIFIED THE CREDITOR THAT THEY WILL NOT BE PAYING

WE DO NOT CONSIDER IT UNFAIR TO ATTEMPT RECOVERY OF THE

DEBT.

 

IS IN NO WAY APPLIES TO DEBTS ALREADY SB AND NOTIFIED AS

SUCH.

[cerberusalert]

It also states in sect 2.14b page 9 http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf

 

continuing to press for payment after a debtor has stated that they

will not be paying a debt because it is statute barred could amount to

harassment contrary to section 40 (1) of the Administration of

Justice Act 1970.

[UnitedFront]

The OFT Guidelines were drawn up and published before the law changed.

 

Once again, S40 AJA 1970 DOES NOT APPLY!!!

 

It has been amended so as to exclude consumer debt situations.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?287720-S40-Administration-of-Justice-Act-1970-irrelevant-to-this-forum-in-almost-all-circumstances-use-CPUTR-s-instead!!

 

Cheers

UF

[BRIGADIER2JCS]

It does say COULD amount to harassment not that it will.

 

As said the whole premise is that contact is made prior to the SB date,

if the creditor/DCA is not formally made aware of the status of the

debt etc.

The creditor is under no obligation to inform the debtor

that the debt is SB.

[cerberusalert]

The alleged debtor may not even be aware that it's SB or in fact that the Statute of Limitations exists.

[BRIGADIER2JCS]

There's the opening for continuing to collect IMHO:madgrin:

It is I hope going to be tested as long as the 2 DCA's don't

drop it like a hot spud.

[cerberusalert]

Yes but once the alleged debtor does becomes aware and they claim SB status then collection activities should cease.

[UnitedFront]

It does not matter one little jot whether it says COULD, WILL, MIGHT or anything else BECAUSE IT CANNOT AMOUNT TO HARASSMENT UNDER S40 AJA 1970 IN CONSUMER CASES BECAUSE THAT SECTION NO LONGER APPLIES!!!!!!!

 

It has been changed, amended, altered, added to, but however you phrase it, the section does not apply to most of our cases any more!!!!!!

 

Now, can somebody please enlighten me as to the point of this thread now?

 

As far as I can fathom, it appears like this:

 

1) Some DCA's are attempting to circumvent the Statute of Limitations by arguing that their letter writing counts as contact and, therefore, the OFT guidelines allow them to continue to try and collect.

2) As I have pointed out in my first post in this thread, the OFT Guidelines have no affect on the application of the Limitation Act 1980.

3) Therefore, also as I stated my first post in this thread, even if the OFT decide that the DCA's can continue to ask for payment, the courts cannot enforce the debt.

 

Therefore, if the OFT say that DCA's can carry on asking for the money - that is ALL they can do.... ASK!!!

 

 

Cheers

UF

[BRIGADIER2JCS]

That's the other premise that needs clarification , I have one

case settled by mediation recently that was in days of being

stat barred and the hearing was after the stat barred date

and it was allowed.

[BRIGADIER2JCS]

UF it's happening and being allowed if the court action is started,

before the SB date it is being allowed and judgments are being handed

down way after the SB date.

Some summary judgement are given because of the debtors ignorance of

the Limitations Act.

[UnitedFront]

Sorry Brig but you are totally misunderstanding one of the fundamental issues concerning the Statute Barring of debts:

 

If action has been started within the time limit then the debt will not be statute barred!!! If they are within the limit by ONE DAY when they begin proceedings, then they are in time because those proceedings have been commenced within 6 years of the cause of action occurring.

 

In the example you gave above you state that it was "days away" from being statute barred during mediation - well excuse me for stating the obvious, but if it is "days away" from being statute barred then it is clearly not statute barred. Furthermore, as I explain above, if the creditor has commenced proceedings before the debt is statute barred, which they obviously had in your example for it to have reached mediation, then the Statute of Limitation will not exclude a judgement.

 

Hope this clears things up a little.

 

Cheers

UF

[UnitedFront]

Also, if summary a Summary Judgment is being obtained because of the debtors ignorance of the law, and that debtor can prove that at the time the Judgment was obtained the debt was Statute Barred, then this would be solid grounds for having the Judgment Set Aside.

 

Cheers

UF

[BRIGADIER2JCS]

I am waiting for the OFT to give me written clarification

on this some time this week.

They wrote so they can explain it.

[UnitedFront]

Ok, just to make sure we are reading from the same hymn sheet, I take it you are awaiting written clarification from the OFT on the issue of whether or not the Limitation Act applies in the situation we have described above; namely where the debt "would" become statute barred after the date that action has been started?

 

If so, then I am sorry to say that the OFT have no jurisdiction to give any such advice. Nor would any such advice given from them have any binding effect on anyone. Such an issue is purely a matter of Judicial Interpretation.

 

But to solve any mystery, and to clear up any confusion at all, we must actually read the Limitation Act as it is written; and that means that, in technical reality, it is not that the Limitation Act prevents a court from giving Judgment but, rather, it acts to prevent any Statute Barred action from being allowed.

 

Limitation Act 1980

Section 5

An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.

 

Clearly you can see from the above quote that if an action has been started in the courts BEFORE the expiration of the 6 year period, then it will NOT become statute barred as you appear to believe.

 

I apologise that this is not what you want to hear, nor what I want to type. But it is true and it is fact. Please don't take offence to anything that I have written / do write, I mean none. I just explain the law as best I can the way I see it.

 

Cheers

UF

[BRIGADIER2JCS]

No I do not believe the debt will become stat barred, and

the postulation put forward is that if a creditor has made

REGULAR CONTACT REPLIED TO OR NOT THEN THE OFT DOES NOT

CONSIDER IT UNFAIR TO CONTINUE TO ATTEMPT RECOVERY.

The need is to establish the meaning of REGULAR CONTACT,

the case I have to deal with the creditors are claiming

that they do not have to cease collection once the debt

becomes stat barred, the OFT seems to imply that the

creditors are correct, the vague verbal reply from CD goes along those lines.

[UnitedFront]

Ok, I wish you luck with your reply from the OFT.... everything I have ever received from them has been a whole load of wishy-washy tosh!!

 

As I said, at least if a debt is Stat Barred then, no matter what the OFT say about collection, the courts will not enforce it if an adequate defence is offered forwards.

 

Having put in my two pence, I will respectfully withdraw from the thread, save for any direct question.

 

Cheers

UF

[BRIGADIER2JCS]

Have asked the compliance team, so hope

for a better, clearer response.

[marneh]

A year figure of 6 years is put forward for statute barred.

 

Is it the same yearly figure for a mortgage signed over a seal.

 

Is a mortgage signed as above recognised in the same way if mortgage is sold to another company

[BRIGADIER2JCS]

12 years for a mortgage under seal.

[cab1ne]

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''

 

you need to note the word BEFORE. however when it is statued barred and they still chase you for the debt, that is all they can do

 

dave

[IainHL]

A year figure of 6 years is put forward for statute barred.

 

Is it the same yearly figure for a mortgage signed over a seal.

 

Is a mortgage signed as above recognised in the same way if mortgage is sold to another company

 

 

12 years for a mortgage under seal.

 

How about a secured loan with a legal charge? Just signatures on an ordinary piece of paper, no seals involved? Would that be 6 years or 12 years?

[BRIGADIER2JCS]

6 years I think.

[Old Cogger]

6 years of not acknowledging the debt I thought by the debtor it becomes statute barred? but the debt does not go away but can be chased Upon but not enforced/////?????

[BRIGADIER2JCS]

After the lapse of six clear years without payment or acknowledgement

in writing the debt becomes time barred under the Limitations Act,

The OFT states ''That it is unfair to continue to press for payment after

the debtor has stated that the debt is statute barred and the will not

be paying, the DEBTOR MUST INFORM THE CREDITOR OF THIS IN WRITING.

The OFT considers that the debt exists, and if the above mentioned action

is not taken the debt can be open to collection activity but not enforcement

in court.

[cerberusalert]

Don't forget the mortgage lenders charter which states they won't chase a shortfall after six years.