Help - statute barred query

Grumbleweed

Hi all - a bit of an irritating one this. Got a letter through today from Mckenzie hall who (after ringing them) say i owe carphone warehouse £88. Apparently the contract was taken out in 2001, and no payments were made after 2002. Apparently, it defaulted in June 2006. They are demanding that i pay them the money, but i have denied the debt on the phone and asked them to mail me the paperwork concerning the matter.

I have checked my equifax page and it doesn't show on there. WHat should i do? Am I going to get stung for this, even though I dont remember using carphone warehouse ?!?!?

Ideas please?!?

fermi

If no payments or acknowledgement in writing were made after 2002, then it's statute barred and Mackenzie Hall can naff off.

If it's not your debt they can doubly naff off.

Grumbleweed

Ok - thing is, I read somewhere that the statute barred thing come as after the last default notice which was according to them in june 2006 (which i never got as I've not lived at the address for 10 years!) so am I under the 6 years?

vax2002

The Statute barred clock starts on the date of last payment by you or written acknowledgement of the debt .
This does NOT mean they can not ask you to pay up, they just can not win a court case.
Whilst ever you are contacting them, they will keep it up.

FireWyrm

Tell them to take a hike. I've written suitable stiff letters for others in the past, so if you check my posts, you'll find them.

In short, they can ask, but you can ignore them, there's not a damned thing they can do about it. If they continue to contact you, call it harassment, write a letter telling them to cease and desist or you will report them to OFT.

Relax.

Grumbleweed

Thanks for the advice guys.
Like a prat, i rang them straight away as I didn't know what it was. On the phone, I told them over and over that i did not acknowledge the debt, and asked for the paperwork? Have i scored an own goal with this?!

What shall I do now, ignore the phone if they ring back, and deal with it in writing?

fermi

No, you haven't score an own goal.

- You cannot legally acknowledge a statute barred debt over the phone, no matter what you do.
- Once a debt is statute barred, even an acknowledgement cannot "unbar it"

- It's arguably not your debt, so they can take a hike on those grounds alone.

Just don't speak to these pond life on the phone any more.

FireWyrm

Telephone calls dont count. You could parade up and down outside their office carrying a placard and it still wouldn't count. Only written and signed correspondence which clearly admits liability can be counted and only within the 6 years. Statute barred is just that...done and over. They can't change it...all they can do is hope you're too ignorant of your rights and can be frightened into paying.

You're fine. Send Fermi's letter, or one of mine and stick to your guns. Tell them to pi$$ off.

Grumbleweed

Thats brilliant guys. Thank you. This one really rattled me with the june 2006 thing as I thought it was just within time!

Going to write a **ckyouagram and mail it off.

Grumbleweed

Just rang them again to clarify dates for my angrygram. They said that the last payment on file was 01/06/2004! I told them that i would be sending a complaint letter through. Now - do I say that any further letters will result in a complaint to OFT, or do i just do it anyway? Seems lots of people are getting grief from this lot about old debts, even though they have been warned officially!

Here's a copy of the letter that I'm going to send them -

Mr C Martin
11 ,XXXXXXX
XXXXXXXX
XXXXXXXX

MACKENZIE HALL
UNIT 1A,

58 PORTLAND STREET,
KILMARNOCK,

AYRSHIRE,

KA1 1JG

21st March 2012

Dear Sir/Madam

MH REF: XXXXXXXXX
RE:- XXXXXXX
PRINCIPAL SUM: £88.28

Formal complaint

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


I am contacting you in response to your letter dated 16th March 2012 in which you mention that you were trying to contact me ‘regarding a personal matter’ to which I responded and telephoned your office on 08444115627 at 13:57 on the 21st March 2012.

During our telephone conversation (which I am told all calls are recorded) you informed me that I owe a debt from 2002 of £88.28p regarding a debt from The Carphone Warehouse. I challenged your employee that I did not acknowledge the debt, and in any case was ‘Statute Barred’ and was subsequently told that as the default notice was issued on the 15th June 2006 (which was never received by me), the debt isn’t covered by the Limitations Act. This will be clearly heard on the voice recording that you claim to have made of the call.

I later rang again to clarify some dates with you at 16:52 on the same date. I asked when the original account had been taken out, to which you replied 17/9/2001 and according to your records ran for 5 years. I asked when the last payment had been made on the account and was told it was 1/6/2004. This would automatically render the debt Statute Barred.

As previously mentioned, you claimed in our telephone conversation that the debt referenced above is not ‘statute barred’ as the recorded default date is 15/06/2006.

I regret to inform you that this interpretation is incorrect and appears to be a deliberate attempt to mislead a debtor regarding the legal standing of a debt. As such, it puts you in breach of the OFT Guidelines on Debt Collection and in breach of the Consumer Protection from Unfair Trading Regulations 2008.

Furthermore, should you attempt court proceedings and rely on such a contention, then not only will this matter be defended in full; it will also be referred to the Solicitors Regulation Authority as a breach of their Code of Conduct. Specifically, as an "attempt to deceive or knowingly or recklessly mislead the court".





Regards your spurious claims, I refer you to the following extract:[FONT=&quot][/FONT]
A cause of action can still accrue (i.e. time starts to run) even though a claimant is prevented from suing by a statutory procedural requirement which precludes the issue of proceedings.

In Swansea City Council v Glass (1992) the local authority brought a claim against a landlord for reimbursement of the cost it had incurred in repairing a house in multiple occupation. The issue was whether the cause of action accrued when the work had been completed or or only when the local authority had served a written notice demanding payment as required by The Housing Act 1957. The Court of Appeal held that the statutory requirement for a written notice was a procedural matter and that time ran from the date that the costs were incurred and the work completed. If this were not the case the local authority could prevent time from running indefinitely simply by not serving the statutory notice.

In respect of an agreement regulated by the Consumer Credit Act, the question is whether the time runs from the date of actual default by the debtor or from the date of (or the date of expiry of) the default notice that must be served under s87 CCA1974.

The situation is analogous to the Swansea City Council case in that the requirement for the service of the default notice is a procedural matter that does not form part of the cause of action. It does not affect the creditor's right to payment but only the procedure for enforcing it. If this were not the position, a creditor could delay the running of time indefinitely by not serving a default notice.

This view was supported by West Bromwich Building Society v Wilkinson (2005), where the House of Lords stated that it would be 'strange if a lender could stop time running by its own act'.


Likewise, neither does recording a default with the credit reference agencies restart the running of the limitation period.

Any further contact from you or your client, except to confirm that this matter is now closed, will result in an immediate complaint to Trading Standards, the OFT and other regulatory bodies.

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.

I hope I have made my position clear. The last written acknowledgment/payment of this debt was made over eight 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 Part 1 Section 6 of the above Act, I suggest that you are no longer able to take any court action against me to recover the alleged amount claimed.

I would like to point out that 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".

I would also point out that 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".

Unless you can provide evidence of payment or written contact from me/us in the relevant period under Section 5 of the Limitation Act, I/we suggest that you are no longer able to take any court action against me/us to recover the alleged amount claimed.

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".

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”.
Should you continue to pursue this account without providing this evidence I shall seek an interdict and damages accordingly. A formal complaint will also be made to Trading Standards along with a report to the OFT questioning your fitness to hold a consumer credit license. In the copy of this letter I shall forward to the OFT, I will specifically remind them of the action they had to take against your company in April 2009 for bad practices. And point out that you are now eligible to be fined £50,000 pounds and have your credit licence revoked due to pursuing a ‘statute barred debt' and breaching the restrictions placed upon your company by the OFT at that time.

Furthermore, any attempts to organize a home visit will not be tolerated, as under the rules set by the Office of Fair Trading (OFT), you can only visit me at my home if I wish to make an appointment and I have no such wishes. Any visit's made at my property will be deemed as trespassing and action will be taken including police attendance if necessary.


In addition, as I feel you have obviously ignored the fact that the OFT have taken action against your company previously for ‘bad practices' I am attaching details of this action for you which I have extracted from the OFT official website.

“REQUIREMENTS IMPOSED BY THE OFFICE OF FAIR TRADING ('OFT')
PURSUANT TO SECTION 33A AND SECTION 33D(4) OF THE CONSUMER
CREDIT ACT 1974 ('the Act')
REQUIREMENTS RELATING TO:
MACKENZIE HALL LIMITED (Consumer Credit Licence Number
5444071, registered office address: 58 Portland Street, Kilmarnock,
East Ayrshire, KAI I JG


THE OFT REQUIRES AS FOLLOWS:
1. That as of 15 April 2009
1 .I Mackenzie Hall Limited will not carry out Debt Collection Activity
where it has been informed, in writing, that there is reasonable cause
to believe that the debt is in dispute.
1.2 Mackenzie Hall Limited will not carry out Debt Collection Activity
where it has been informed, in writing, that the account is statute
barred.
Debt Collection Activity is defined as:
a) sending debt collection letters;
b 1 making of debt collection calls;
C) the use of any other medium for the purpose of collecting an
outstanding debt; or
d 1 the acceptance of payments offered against a debt.
A debt is considered as in dispute where:
a 1 it has been reasonably demonstrated that the debt has been
previously paid;
Requirements relating to Mackenzie Hall Limited, Consumer Credit Licence 544407
15 April 2009
Page 1 of 2
b) a request under section 77 or 78 of the Consumer Credit Act
1974 has not been complied with, and this prevents the
agreement being enforced without the permission of the court;-
c ) it is reasonably believed that the debt may have been incurred
as a result of identity theft or fraud; or
d ) it is reasonably doubted that the person being pursued for the
debt is the actual debtor.
For the avoidance of doubt, where only part of a debt is disputed
Mackenzie Hall Limited may seek to recover any other part of the debt
that is not disputed.
ANY FAILURE TO COMPLY WITH THE ABOVE REQUIREMENTS WILL
RENDER MACKENZIE HALL LIMITED LIABLE TO FURTHER FORMAL ACTION-
BY THE OFT. THIS COULD INCLUDE THE IMPOSITION OF FINANCIAL
PENALTIES PURSUANT TO SECTION 39A OF THE ACT AND/OR THE
REVOCATION OF MACKENZIE HALL LIMITED'S CONSUMER CREDIT
LICENCE PURSUANT TO SECTION 32 OF THE ACT.

Ray Watson, Director, Consumer Credit Group
Authorised signatory on behalf of the OFT”

The fact that requirements have been imposed on Mackenzie Hall appears on the consumer credit register. We will monitor Mackenzie Hall's compliance with the requirements. Any complaints about non-compliance should be sent to:
Enquiries
Office of Fair Trading
Fleetbank House
2-6 Salisbury Square
London
EC4Y 8JX
I await your written confirmation that no further contact will be made concerning the above account and confirmation that this matter is now closed. Due to it being a STATUET BARRED DEBT. Please be assured I will keep a copy of this letter including its proof of postage (and your representatives signature) should I have to report you to trading standards and the OFT.

Please also remember the OFT have banned you from the use of ANY OTHER MEDIUM for the purposes of Statute barred debts. I.E. searching peoples credit files, which I see has been recorded on my credit file already.

I look forward to your reply.
Yours faithfully


Mr C Martin

FireWyrm

Ack, it's a bit long, but that'll do it. Have fun with them...send them multiple versions, get really shirty...

They can ask all they like, but they can't legally touch you now. Have a drink and enjoy your evening.