Statute Barred Advice Please

fermi

http://www.i-m-a.org.uk/documents/Statute_barred_debts.docx

Jonj1611

My appointments in 2 hours so I won't be able to get positive confirmation or give them any proof, but I do know it's over 6 years old.

With this debt my debt comes in at 15.2k so you can see why I am anxious about it.

There is another on my credit report that I am not including either, it's status shows up as up to date, however last time I ever made any payment to that account was in 1999, Orange seem to update it each month as up to date, I have noticed more debt companies doing the same thing to make it look as though all is ok with the account.

Jonj1611

Thanks for the document Fermi, hmmmmm, not sure what to do now, and further to that, 75% of my debts that I am listing don't even show on credit reports, am I listing the right things!

fatbelly

It's going to boil down to your intermediary's view on this.

The current guidance to Intermediaries is similar to Fermi's link but some extra explanation has been added I think:

Statute Barred Debts and Other Unenforceable Debts
This issue of statue barred debts is not at all straight forward and limitation on debt is a complex area of law, however advice has been obtained regarding whether statute barred debts need to be scheduled in a DRO application.
Section 251B of the Insolvency Act 1986 states the following:
251B Making of application
(2) The application must include—
(a) a list of the debts to which the debtor is subject at the date of the application, specifying the amount of each debt (including any interest, penalty or other sum that has become payable in relation to that debt on or before that date) and the creditor to whom it is owed;
However, Section 251A (2) (a) of the IA 1986 states that a qualifying debt means a debt that is for a liquidated sum payable immediately or at some certain future time.
If a debt is indeed statute barred then it is neither “payable immediately or at some certain future time”.
Firstly to clarify, limitation periods on debts do differ: all contract claims are barred after six years but claims under deed (i.e. mortgage shortfall debts) are barred after 12 years. To add to the difficulty if a debt is acknowledged then time starts to run again.
Limitation, effectively, does not apply against a debt upon which judgment has been obtained. If the creditor has previously taken a debtor to court and obtained a judgment, the debtor will be unable to use the Limitations Act 1980 to dispute the debt. If the judgment is over 6 years old the creditor may need the permission of the Court to enforce the debt.
It is also correct that a „debt‟ exists beyond the limitation period but the creditor can lose any right to enforce the debt by virtue of limitation.
Due to the uncertainty of limitation, the first principle must be that all unpaid debts should be listed in the application for a DRO; this is so even if the debtor considers that they may be able to rely upon a defence of limitation against enforcement of that debt. Where, prior to the DRO application being submitted, the Intermediary has established that limitation applies and the debtor has evidence that the debt is statute-barred, then the debtor can choose not to list it The Intermediary should be satisfied that the debt is statute barred and keep any evidence on the debtor’s file.

If a debtor knows that they have a statute barred debt but has no information about it and it does not appear on any credit reference reports, an application can proceed without including the debt.
In any scenario where statute barred debts are not scheduled in a DRO application a note should be included in the application explaining that there are statute barred debts detailing the sum if known or explaining the quantum is unknown, or an email sent to the DRO Unit explaining this before the application is submitted.
In summary, debts barred by limitation or otherwise unenforceable do not need to be included as qualifying debts for the purposes of a DRO and if they are not listed will not count towards the £15,000 debt limit.
Where the official receiver subsequently discovers that a debt was not statute-barred/unenforceable and as a consequence, at the date of the DRO application the debts exceeded £15,000 the DRO will be revoked.
As limitation and enforceability can be such an uncertain area the general rule should be: if in doubt, list it.

Jonj1611

Hi,

Many thanks, yes the intermediary said he needed clarification as he said that even if the debts were statute barred they had to be added on the order, I said I don't believe thats the case and he said he is sure it is but wanted to clarify.

Other than that we will have to see what happens.

Jonj1611

Right bit confused as I will have to write to them as need to get this DRO sorted, anymore interest and I won't be able to do it, anyway I have spoken with NDL and they say that if I write to them querying the payment made then I accepting liability and it will no longer be statute barred, is that correct?

Here is what I was going to send :-

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

Dear Sir/Madam

Account No: xxxxxxxx

I dispute the payment you say I made on the 1st June 2007 and request evidence of this payment that you would use to rely on in court.

In addition, in line with pre-action protocols on seeking a resolution prior to legal action, I require disclosure of a copy of the proof of payment that you will be relying on in court.

Failure to take reasonable steps to resolve this dispute at this stage by providing this proof will be brought to the attention of the court.

Any failure or refusal to provide evidence of any payment, will also be forwarded with a complaint to the OFT and trading standards.

Should you persist in claiming a fictitious payment, you will be reported to the OFT and trading standards.


I look forward to your reply.

Yours faithfully

Jonj1611

So, is that letter going to be ok do you think? I should I add/remove bits?

Thanks for any help.

Jonj1611

Is there anyone that can give some advice if that letter is ok? I am a bit stuck really as I cannot send it if I am admitting liability as that would defeat the purpose and NDL while there advice was good has left me no further ahead really.

Thank you

Jonj1611

Nobody at all? I am really unsure about sending that message, on this occasion NDL haven't really been that helpful and I need to get in contact with the company about the payment they say they received, unfortunately I am up on a time limit here as I need to get my DRO appointment all done. So can anyone please advise if that letter I wrote will be ok to send or is it better just to send the prove it letter. I don't want either letter to admit liability though.

Thank you