Advice on the rules of statute barred

Milly68

I've just been reading the NDL website and even if you request the file, this cannot be accepted as acknowledging the debt. However, based on all your advice (thank you very much), I am going to suggest to my friend that she contacts the NDL direct.
Many thanks.

franwh

when replying to these letters, is best to head the letter 'WITHOUT PREJUDICE', gives you protection in that any 'acknowledgement' you may make cannot be used in court without your explicit consent

zzzLazyDaisy

Be careful.... that is only partly true...

It is true that a Without Prejudice letter cannot be shown to the court.

However, the legal definition of a Without Prejudice letter is one which is clearly stated to be W o P ....... and which is part of a course of settlement negotiations.

In other words, if you make an offer of settlement in a without prejudice letter, and the company declines the offer, they can't then show it to the court as evidence that by making an offer you have effectively admitted the debt.

But what you can't do is put W o P on any/every letter and expect the court to ignore it - unless the letter really does contain an attempt to broker a mutually acceptable settlement, the label 'without prejudice' is meaningless and ineffective.

Daisy

fermi

Yep. Relying on 'without prejudice' alone is dubious at best.

There is supposedly a case where a major company came very very unstuck when they tried to rely on that in court. Must try to find that sometime if the case summary is in the online records......

Whether you put 'without prejudice' or not, always head SB letters with:

"I do not acknowledge any debt to you or any other company or organisation that you claim to be representing."

Milly68

It has been some time since I submitted this post and I have to say that sadly, my friend had no luck with the CAB. They just said 'Pay it' and sent her on her way. Since then, she has suffered with depression and lost a relative so the debt was put to the back of her mind... until Friday. She had a visit from a very distressed neighbour saying that the DCA had contacted him and asked a whole load of questions about who lived at her address, had they seen her etc etc. He's a very suspicious neighbour and not knowing exactly who they were, he failed to answer their questions by responding "I don't know." The neighbour was very traumatised by this call and felt it was like an interrogation. To boot, my friend is now highly embarrassed that a neighbour has been made aware of her private business.

I have managed to obtain a copy of original letter she sent to the DCA. She typed this in anger as follows:-
This is the first time I have ever heard of (***** credit card company), or been advised of this outstanding debt. Nor I have received any correspondence from (****** credit card company) of your involvement in this debt.
So, to confirm, up until February 2008 (your first letter) I had no knowledge of any credit agreement or debt with either (****** credit card company) or yourselves and as such, can only assume that either you are trying to obtain money by deception, or someone has taken out a credit card using my name and my details.
In this respect, are you able to provide me with details of what purchases were made with the credit card, a statement, receipts and more importantly, a copy of the original signed credit agreement (not application)? If not, then please forward me the contact details for (****** credit card company) so that I may take the appropriate legal action/advice.


Her second letter is as follows:-
On ???????, I advised that I was not willing to discuss this over the telephone, but yet another of your ‘helpful customer advisors’ continued to ask for my personal details, such as my date of birth etc. As I have no knowledge of you or (****** credit card company), at this present time I am refusing to give you any of my personal details. Should I have applied for such credit card, which I didn’t, you should already have my personal details.
I have also been advised that as fraud has been committed, in that someone has applied for and received a credit card using my details that I should take this up with the creditor, namely (******* credit card company), who in turn should report this to the police. I therefore request that you provide me with the full contact details for (****** credit card company).

They did send a copy of the statements and from what I can tell, the last payment made was in September 2003, and like I said previously, if this debt is my friends, then she's obviously forgotten about it following a life threatening trauma. I'm sure my friend would be happy to pay back the original approx £200 that she owed, but not the £2,000 that the DCA are asking for. Would it be worth sending them a Statute Barred letter?

RAS

milly

Sorry but we need the dates she sent those letters?

Milly68

They were both sent in April 2008

Milly68

She didn't sign them.

DarkConvict

Calling neighbours is a known tactic and one that breaches guidelines as well, under OFT and probably under data protection for misuse of data.

I would report the incident to the OFT, stating not only are you been harassed for statute barred debts, but so are your neighbours.

http://forums.moneysavingexpert.com/showpost.html?p=11571227&postcount=3

I do not acknowledge any debt to you or any other company or organisation that you claim to be representing.

Acc/Ref No: *******************

FORMAL COMPLAINT under the complaint procedures set out by the Financial Ombudsman.

Thank you for your letter dated xx/xx/2008, the contents of which are noted.

On xx/xx/2008 I wrote to <Name of debt collector> regarding a debt that was alleged to be owed by myself. That letter was received and signed for on xx/xx/2008 as confirmed by Royal Mail tracking.

In this letter I pointed out the following items:
1) Under the 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".

2) The OFT say under their Debt Collection Guidance on statute barred debt that "it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period".

3) The last correspondence/payment/acknowledgement or payment of this debt was made over six years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from me in the relevant period under Section 5 of the Limitation Act, I suggest that you are no longer able to take any court action against me to recover the alleged amount claimed.

4) The OFT Debt Collection Guidance states further that "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".

Therefore it is clear that your original contact regarding this debt may well have been in breach of the Office of Fair Trading Guideline referred to in item (2).

Furthermore, your second letter is in breach of Office of Fair Trading Guideline referred to in item (4) and directly constitutes harassment.

As you are no doubt aware, breaches of the OFT's Guidance on Debt Collection are treated seriously by the OFT when considering your fitness to hold a Consumer Credit License.

In particular the OFT has recently stated that:
The Consumer Credit Act 1974 (the Act) requires debt collectors, businesses that offer goods or services on credit and/or are involved in activities relating to credit or hire to be licensed by the OFT. Following implementation of the OFT's new powers under the Consumer Credit Act 2006 on 6 April 2008, the companies could also have specific 'requirements' imposed on them by the OFT. If such a requirement was not complied with, the business concerned could be subject to a financial penalty of up to £50,000. The OFT can also refuse or revoke a licence if it decides that a trader is not fit to hold one. The OFT can take into account any circumstances which appear to be relevant when considering the fitness of an applicant or licensee, including evidence that the company has contravened the Data Protection Act 1988.
Furthermore, that the OFT has recently enforced their guidelines by placing a legal requirement on Mackenzie Hall Ltd to cease pursuing statute barred or disputed debts.

Therefore I wish to formally notify you that unless I received confirmation that this matter is now closed, then I will not hesitate to make a formal complaint to the 'Office of Fair Trading' and also to 'Trading Standards'.

Furthermore, any attempted contact (other than to confirm that this matter is now closed) by any:
"trading style" of the <Name of debt collector> group
constituent member of the <Name of debt collector> group
a third party acting on your behalf
a third party that claims to have been legally assigned this debt
will result in an immediate complaint to the aforementioned regulatory bodies.

Also please note that any legal action you may consider will be FULLY and VIGOROUSLY defended, and you will be put to a strict proof of the alleged debt and any payment or acknowledgement that you claim within the relevant limitation period.

Furthermore, you may consider this letter a FORMAL COMPLAINT under the complaint procedures set out by the Financial Ombudsman. If you wish to correspond with myself with any other purpose than to confirm that this matter is now closed, then I require you to supply me with a written copy of your complaints procedure and a "final response" that I may forward to the Financial Ombudsman with my complaint.

This COMPLAINT is not going to go away and ignoring this problem could potentially make your situation worse. I therefore strongly recommend that you send written confirmation that no further contact will be made concerning the above account and confirmation that this matter is now closed.

I would appreciate your due diligence in this matter.

Milly68

Thanks, thats a really good letter. Her only concern though is whether the correspondence she wrote back in April 2008 (statue barred became effective in 2009) can be taken as 'acknowledging' the debt, even though the letters deny knowledge of the debt being hers. If not, then I will pass on the above letter for her to send. I have to say that aside this debt, she is now paranoid that ALL her neighbours know her business and are talking about her. Not good for someone who is currently suffering from depression. These DCA's make me so angry.