Mackenzie have responded!! - Bad News?

fermi

I would wager they won't listen, and will insist that the complete bollux they have have told you is true.

needuradvice

so whats the answer fermi mate? If we can't complain to FOS, then what can we do next?

DVardysShadow

needuradvice wrote: »

so whats the answer fermi mate? If we can't complain to FOS, then what can we do next?

Ignore them? It seems that while their rulings may be binding on the industry, they may not be binding on the consumer.

From the responses on CAG: What FOS have told you is totally wrong, but remember they are only adjudicators and they pass an 'opinion' they actually state on their site that they do not have to take Statute Law into account when reaching a decision.

So it just means that FOS are not going to get the DCA off your back - not that the DCA have any grounds to take it further

needuradvice

Hi again guys,

i'm sorry for bothering you again. After speaking to you experts, nationaldebtline and moneysavingexpert forum, i decided to give the adjudicator a call today. I'm disappointed as he still insists that:-

under the Consumer Credit Act 1974, the debt most likely is not statued barred as the firm has made contact or has been trying to make contact within 6yrs.

He went on to explain that if what national debtline told me was true, then every debtor would simply have to take loans out, not pay debt and avoid contact for 6yrs and then claim statued barred.

He says that the law states that if the creditor has been trying to keep in contact with the debtor, even if the debtor was not willing to contact, then that debt is not statued barred.

I asked him to give me this info in writing, but he declined and said he doesn't have that much time to start posting out explainations and told me to look it up in the consumer credit act 1974.

I get the feeling that no matter what i say, this guy is going to rule in Mackenzie's favour .

So what i want to know is, to avoid giving Mackenzie an excuse to keep chasing me, shall i withdraw my complaint and let the time pass or shall i let the ruling go ahead?

DarkConvict

I would leave the complaint to go ahead, you do not have to abide by their decision.

At one point i did believe if a creditor tried to make contact and the debtor ignored it then it would affect the SB date as they were trying to run away, this is not correct what a creditor must do if they cannot get contact is issue a CCJ against the last known address. If they do not the debt is not secured and will expire 6 years after last contact

needuradvice

i'm worried that if i left the complaint to go ahead, it'll rule in their favour and therefore give them even more ammunition to keep bombarding me with letters. If i withdraw then at least by june they definately would have to stop contacting me as they themselves agree that the default date was in june 2004.

GeorgeUK

That's why we advise that all communication be in writing only. It may be his opinion, but when he starts quoting legislation and has it totally wrong, it can become a problem.

This guy is not a lawyer, probably never read the Consumer Credit Act. If he had he would know that it has nothing to do with a debt becoming statute barred - this falls under the Limitation Act 1980:

Section 5. Time limit for actions founded on simple contract
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.

The cause of action was the first missed payment.

Are they aware that you had also made a section 10 notice under the Data Protection Act to stop processing your data?

I would not bother communicating with them on the phone at all. If you feel you must respond, you could write a letter detailing your case along with arguments backed by the relevent legislation (as they seem to ignore little things like this).

needuradvice

ok thanks george.

my mistake is phoning him. he simply said that i can't be statued barred as the creditor has been trying to contact me within the 6yr period, but if i've avoided it then thats not their fault, so they can continue to do so.

The cheeky sod told me also not to read what it says on consumer forums, but i told him that its not just consumer forums who give this advice, but also National Debtline, Solicitors and other debt charities...he didn't listen to a word.

Spoke to National Debtline who also adviced me to wait for the outcome and then take it from there. They got me worried as they said he could be a creditor acting as the ombudsman, but i rang the main 0300 FOS number and asked them who was dealing with the case and he definately is the adjudicator.

needuradvice

* * * * UPDATE * * * *

hi guys,

just got a call from the ombudsman today who seems to have come to a conclusion:-

Mackenzie are offering to stop chasing me and will pass my debt back to the original debt owner - 1ST CREDIT. He says that since my complaint is against Mackenzie, that if i accept this offer then it'll go back to 1st credit and if they continue to chase me then i'll have to make another complaint again. I said to him that i'm disappointed as this isn't solving the problem, but is simply kind of "pass-the-parcel" game to the debt companies, i.e. 1st credit can then pass the debt to another debt company etc. He says to me to think about it and to let him know ASAP.

I'm gonna phone National Debtline tomorrow, but would also like your advice on what to do please.

thanks guys...much appreciate your help.

DarkConvict

This is sort of a post/letter with a really mixed tense as i added and removed stuff, gets the jist across though.

I would continue your complaint, the debt is statute barred and unenforceable in law, the repeated communication from McKenize Hall is considered unlawful harassment due to the continual demands for payment on statute barred debt, as defined by section 40 (1) of the Administration of Justice Act 1970.

Your complaint is purly against McKenize Hall (as such not in regard to the legal liability of the debt, this is already defined in law) for not complying with the law nor the guidelines set out by the OFT on debt collection. http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf

2.13 This guidance applies to the pursuit of debt regardless of its age. We will be
carrying out further work on this aspect of debt recovery including analysis of
relevant legislation and practice throughout the UK.
2.14 In the past we have dealt with a number of statute barred debt cases governed by
the Limitation Act 1980, which applies to England and Wales. Based on that
experience our position with regard to England and Wales remains:
a. we accept legally the debt exists
b. it is the methods by which the debt is collected that can be
unfair as follows:
• it is unfair to pursue the debt if the debtor has heard nothing from
the creditor during the relevant limitation period
• if a creditor has been in regular contact with a debtor before the debt
is statute barred, then we do not consider it unfair to continue to
attempt to recover the debt
• it is unfair to mislead debtors as to their rights and obligations, for
example, falsely stating or implying that the debt is still legally
recoverable and relying on consumers not knowing the relevant legal
provisions, and
• 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.

Particluar attension is being brought to
"it is unfair to mislead debtors as to their rights and obligations, for example, falsely stating or implying that the debt is still legally recoverable and relying on consumers not knowing the relevant legal provisions"
and
"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".

The owner of the debt is irrelevant as it will have no bearing on your liability to pay, of which there you have no liability to pay any of the debt in question as it is unenforceable under the statute of limitations act.

The FOS is the regulating government body for this company, and as such as infractions in there behaviour is been reported directly to those to charge, yourselves. This is done on the information provided by numerous well respected sources in the public domain of dealing with debts, which are funded by the public, government and credit industry. The FOS actions and views are been openly represented to these parties as a matter of potential public concern to how the FOS deals with such infractions of debt collectors that they are supposed to regulate.

Forewarning, If 1st Credit are assigned the debt, and they also begin attempt to collect they will be sent the letter that it is statute barred and you will not be paying, if they act like McKenize Hall then a separate complaint will be lodged against them on the same grounds.