statute barred on limitation act with right of set off letter. Please help.

triga2005

Hi Sorry if this post is wrong in regard to etiquette I'm not good at this sort of thing.
I was wondering if somebody can assist please?
Long story short,Business went down in credit crunch 2008.
Had a business loan of xx thousand pounds.
Last payment was December 2007 no written communication from myself or payment from that date, subsequently house in partners name was taken by mortgage provider I was named guarantor on unsecured loan. we where homeless with young family and had no money at all. I found new job to start again. The Bank formally demanded the loan in June 2008 and then Aug 2008 which I did not reply, they wanted to merge all the loans together and take a further security on the property that did not happen.
I had a personal loan with same bank as we had with business loan which I paid of to a third party at £50 a month for five years this was resolved in June 2013 to the penny outstanding, the bank in question did not contact me while this personal loan was being paid back and knew where I lived.
May i state for the record the personal loan had nothing to do with business loan.
In April 2014 I got a letter from the bank saying there was a issue regarding £20.00 on the personal account.
I contacted bank and complained about the fact I had no account with them and personal debt resolved they then mentioned actually they wanted to talk about outstanding XX thousand pounds business debt and can they have that back now please.
I did not acknowledge as I had forgot all about it and had started my life again and thought with the house being taken it was all finished and all business debts written off.
They investigated after I complained and admitted liability in delay of communication due to a" system error" and actually sent me a cheque for a couple of hundred pounds compensation which I have not cashed or acknowledged, however without my written consent or acknowledgement they have made a payment from my old personal account (which I had no access to or knowledge as they demanded my personal debt to be paid off and thought it had been shut down due to paying off personal debt with third party) of £22.00 nearly a year after that debt was paid off into a business account I have no knowledge of and are claiming it is now " a right of set of credit funds" on the business Loan which apparently does not constitute statute barred on the debt and that I have to pay it now. That was in April 2014, I heard nothing since thinking it was statute barred apart from a letter asking if I had cashed the cheque yet which I will not and ignored.
They are threatening court now via solicitors (ascent) in June 2015, I have checked my credit file and my credit rating is excellent with no historical CCJS ever or Gone absent on address.
Please can somebody help, am I liable? Is the debit statue barred? Can the bank just pull a £20.00 payment from one magical account into another for which I have not authorised or physically paid and then claim I am still liable for the debit?
I'm getting very sick over this and would welcome any help or advice
Many Thanks

fatbelly

Triga - I think the question is 'does a payment made under the right of set-off constitute acknowledgement under the Limitation Act?'

I'm not aware of a court case that has tested this. My gut feeling is that it would not, as the debtor would have no control over the timing, and the creditor could, as in this case, opt to draw a payment 5 years and 10 months into the limitation period.

If I come across anything relevant, I'll head back here and post. If you get a court claim, head over to legalbeagles.

rogue999

Hi Triga - you need to start your own thread as it will be missed here on the end of an old thread. Go back to the main Debtfree wannabee board and click on New Thread and copy and paste your post into it. Good luck - i'm sorry I don't know about business debts xx

fermi

Quoting a venerable law book.

A part payment may be sufficient if it is made by the creditor to himself by agreement with the debtor, out of
the debtor's funds in the creditor's hands.

I suppose the question is whether legal or contractual right of set off existed or was used appropriately in respect of this debt and accounts, and if it would be sufficient 'agreement' to constitute a part payment under the act.

Gut feeling is that it would be a quite a stretch to make that case, but never say never with court action and their decisions.

triga2005

Morning,
Thanks for your assistance so far.
Just checked the agreement back in 2007 which gives bank right of power to do such a thing if a other account is in credit,
However I spoke to third party this morning regarding personal loan payment and they said when direct debit was shut down by bank on 10 June 2013 the loan even though I finished being paid and it was satisfied balance was £27.94 short of full figure which makes me think if the loan repayment and the bank closed the account and the final figure was short how did there come to be credit in a closed dormant account to offset the business loan?
The terms and conditions clearly state the right of set off is for any account in credit, well the account couldn't of been in credit if there was a £27.94 shortfall when the direct debit was shut down in june 2013 by the bank.
Any advice would be welcome and many thanks.

Meatloaf1981

Hi, didn't want to read and run.

This involves a combination of business debt and personal debt. National Debtline would be a great place to start so I would recommend giving them a call to see what advice they can offer you.

sourcrates

Meatloaf hits the nail on the head, you need advise from an expert on this, National Debt-line would be my first thought.

Call us for free
debt advice on
0808 808 4000
Monday to Friday
9am to 9pm
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Tixy

Was your business a limited company, partnership or sole trader?

In whose name was the business loan?

System

And was it personally guaranteed?

triga2005

@ Tixy and @ !!!!!!.

Business was a Ltd Company, the loan was a business loan in ultimate borrower of ltd company, My partner was the borrower and security was my partners property which I was NOT on the deeds in any way shape or form. I was a personal guarantee. I had no physical security on debit.The property subsequently went into negative equity when repossessed.

Thanks.

Tixy

Sorry, can you clarify, was the loan in the name of the limited company or in the name of your partner?

If you personally guaranteed the debt then I believe the bank can use the right of set off to offset any funds in accounts you hold with them.
As others have suggested national debtline should be able to clarify.

If they were correct in their use of the right to set off, and if this then means there was not a period of 6years without payment towards the debt then the debt would not be statute barred.