Santander loan - advice on Statute barred?

Megonnie

Hi there, I would really appreciate some advice on this. I had a loan with Santander and with Natwest Bank. I initially tried to repay these debts after my husband left me for two years in 2004 with a debt management company, but as I was struggling I entered into an IVA in 2006. My circumstances then changed later that year and I had to cancel the IVA. I have not paid anything or acknowledged the debts since.


Both Natwest and Santander have sent me regular statements on the amount I owe but I have always ignored them. Last year I sent the first letter to Natwest which they have accepted and have not contacted me since. When I received the annual statement from Santander I sent them the first template letter stating I do not acknowledge the debt etc etc. However, I have today received a letter from their Complaints Resolution Team, telling me they do not accept the loan is statute barred.


I have re-typed the main body of the letter below :-


"You let us know that you believe your loan amount to be statute barred. You wish to point out in particular the limitation act 1980 Section 5. You have stated that the last acknowledgement you have received in relation to this debt was over 6 years ago (THIS IS SOMETHING I DID NOT SAY) After reviewing the issues surrounding the loan, I have come to the conclusion that the debt is not statute barred. Unfortunately, whether a debtor does or does not acknowledge a debt does not determine whether a debt is statute barred or not. Moreover even if the debt is statute barred that would only prevent us from taking enforcement action through the courts. If I can refer you to the consumer credit source book (17.5.4) which states " a firm must not attempt to recover a statute barred debt in England, Wales or NI if the lender or owner has not been in contact with the customer during the limitation period". I can confirm that we have sent you annual statements informing you of the balance owed. These letters have been sent to the address we hold on file, I also add that the consumer credit sourcebook states under section 7.15.2 "In England, wales and NI a statute barred debt still exists and is recoverable" and 7.15.5 " If the lender or owner has been in regular contact with the customer during the limitation period the firm may continue to attempt to recover the debt" Due to the information I have provided I am unable to uphold your complaint. After investigating your complaint I can confirm that our records show that you entered into an IVA in July 2006. If your IVA has been discharged we would request you forward the discharge notice onto us.


I'm really concerned now regarding this as I have started to re-build my credit rating with my bank, I now have a basic credit card which I put £20 on each month and pay it off and I have a joint bank account with my husband.


Sorry for the long winded post but I thought more information to provide the better. I thought that if the debt was statute barred - which I believe would have been 2012/13 then they would have to accept this (apologies if I am ignorant on this). I'm scared they will send debt collectors round or take me to court - can anyone please help on this.

debt_doctor

Megonnie wrote: »

Unfortunately, whether a debtor does or does not acknowledge a debt does not determine whether a debt is statute barred or not. QUOTE]

Oh yes it does! (Is it panto season already?)
What matters is that there has been no acknowledgement by the debtor, no payment by the debtor (or an agent or other party on the agreement) and no CCJ obtained within a clear period of 6 years.

Their references to the FCA 'rules' are correct in that just because a debt is no longer legally recoverable, they can still ASK for the money back - but could I add a quote of the FCA rules of my own;

CONC 7.15.8
FCA
A firm must not continue to demand payment from a customer after the customer has stated that he will not be paying the debt because it is statute barred.

B]Note[/B]: paragraph 3.15b of [URL="https://fshandbook.info/FS/glossary-html/handbook/Glossary/D?definition=G3315"][COLOR=#0066cc]DCG[/COLOR][/URL

So, as soon as you tell them you will not be paying a stat barred debt then they MUST cease collection activity.

They have provided no proof that your debt is not statute barred (proof of payment etc) I would say that your last acknowledgement was when the IVA company last contacted the creditor in writing and / or made a payment..
DD

Megonnie

Thank you so should I just send a letter stating that they have provided no proof that my debt is not statute barred and quote the "CONC 7.15.8 FCA" that you mentioned? Or is there a template letter that I could adapt to incorporate this into.

National_Debtline

Debt Doctor is right, the fact that you have not wrote to them is part of what determines a debt to be statute barred. It is irrelevant if they wrote to you. In order for a debt to be statute barred there has to have been a 6 year block of time since the debt fell due, with no written acknowledgement or payment to the debt by the debtor and no County Court Judgement obtained.

I would suggest you write back to them with our sample letter – https://www.nationaldebtline.org/EW/sampleletters/sole-letters/Pages/Time has run out to recover the debt (sole name).aspx# send it recorded delivery and keep a copy. And if they continue to fail to send proof to you that the debt is not statute barred then take the matter to the Financial Ombudsman Service. (Proof is either details of a payment or written acknowledgement by you to them or a CCJ they have obtained).

Laura
@natdebtline

Megonnie

Hi there, Well I sent the letter to Santander as advised and this is the reponse I got:-


"Thank you for contacting us after you received our original response to yourcomplaint dates 31st July 2015 (Can I just add it wasn’t acomplaint it was the first letter re statue barred debt taken from this site)

I’m sorry you’re unhappy with the decision we previously made about your beliefthat your loan account is statute barred

Review of your complaint

I’ve had a look at the detail of your complaint and want to letyou know that that our original decisionremains unchanged.

I’m sorry that you fell the information provided in ourprevious response was misleading. Thatis not our intentional.

However, I must confirm as advised in our previousresponse. We are unable; to agree withyour contention that the debt is statue barred.

A customer’s failure to acknowledge the debt for six yearsdoes not make the debt statute barred if we can demonstrate that we have madereasonable efforts to keep them informed of the valid balance through annualstatements.

However, despite not receiving confirmation that your IVAhas been discharged and in order to bring a resolution to this issue. I have arranged to stop further statementsbeing sent due to the length of time that has passed.
What happens next

This is our final repose to your complaint. If you’re still unhappy and feel I haven’t fixedyour complaint as you’d like, you have the right to refer your complaint to theFOS, free of charge – but you must do so within six months of the date or our previouscorrespondence".
Can anyone advise what I need to do now as I'm starting to tear my hari out with them? Should I just ignore this? I haven't sent anything the to FOS yet - should I copy all correspondence to them and await their decision? Many thanks for any advice that you can give

fermi

They are stopping correspondence though, which is what you wanted.

Santander are well known for being unreasonable fools. It's not really that surprising that they persist with such idiotic claims over the status.

They are just being deliberately bloody minded out of spite or shear stupidity. With them, both are possible.

If you want to contact the FOS and get things moving with them then the info is in this link.

http://www.financial-ombudsman.org.uk/consumer/complaints.htm

Maybe you will get a little redress awarded. Maybe not.

jjj1980

Take this straight to FOS! I used to work on the Complaint Resolution Team at Santander as part of the former GE Money department and there is no way I would have replied to your letter saying the debt was not statute barred! Idiots!!

When you write to FOS, enclose as many copies of the rules and regulations surrounding statute barring of debts as you can. They will contact Santander for an explanation so if you can provide the right evidence, they can put Santander quickly in their place.

fermi

jjj1980 wrote: »

Take this straight to FOS! I used to work on the Complaint Resolution Team at Santander as part of the former GE Money department and there is no way I would have replied to your letter saying the debt was not statute barred! Idiots!!

I stick with what I said about Santander above, but acknowledge from your sensible response that you were obviously one of the exceptions that proves the rule.

Thank you.

Megonnie

jjj1980 wrote: »

Take this straight to FOS! I used to work on the Complaint Resolution Team at Santander as part of the former GE Money department and there is no way I would have replied to your letter saying the debt was not statute barred! Idiots!!

When you write to FOS, enclose as many copies of the rules and regulations surrounding statute barring of debts as you can. They will contact Santander for an explanation so if you can provide the right evidence, they can put Santander quickly in their place.

When you say enclose as many copies of the rules as I can would my 2nd letter cover this? This is what I sent following advice from the site and it seems to cover most rules for statute barred debt:?-

Thank you for your letter dated 31st July 2015 falselyclaiming that the above loan is not statute barred.

I note that not only have you selectively quoted the FCA consumercredit source book in a way designed to mislead, you have also attempted tomisrepresent the provisions of the Limitation Act 1980 regarding fresh accrualof a course of action by acknowledgement.

(1) You deliberately omitted any reference to FCARule:

RULE – CONC 7.15.8 – A firm MUST NOT continue to demand paymentfrom a customer after the customer has stated that he will not be paying thedebt because it is statue barred.

Instead, in omission of the rule, you used guidance points 7.15.2, 7.15.3and 7.15.5 to falsely give the impression that you are still entitled under FCArules to demand payment.

This also puts you in breach of Rule

RULE – CONC 7.15.6 – A firmmust endeavour to ensure that it DOESNOT mislead a customer as to the customers rights and obligations.

(2) You in addition made the following false andmisleading statement.

“Unfortunatelywhether a debtor does or does not acknowledge a debt does not determine whethera debt is statute barred or not”.

On the contrary, In order for a debt to be statute barred there has tohave been a 6 year block of time since the debt fell due, with no writtenacknowledgement or payment to the debt by the debtor and no County CourtJudgment obtained. Sections29 and 30 of the Limitation Act 1980 specify this, in that fresh accrual of a cause of action onacknowledgement ONLY occurs when such acknowledgement is made by the debtor inwriting and signed by themselves.

Your above statement is therefore a false one.

As previously stated in my last letter to you, unless you can provideevidence of payment or signed written acknowledgement from mein the relevant period under Section 5of the Limitation Act, I suggest that you are no longer able to take anycourt action against me to recover the alleged amount claimed.

As a financial institution of your size and sophistication cannotpossibly be ignorant of the correct FCA rules and law in this area, I can onlyconstrue the false statements and omission in your letter as a deliberateattempt to mislead myself regarding the legal status of the account, and my andyour rights and obligations.

jjj1980

Your letter is fine but if you can print screen shots from the relevant websites etc it does help your case.

Thank you for your comments Fermi. I took my role very seriously, working on a small team handling the very top level of complaints coming in via FOS, addressed to the executive team by name etc. Some even via coroners courts. I loved that role and never would have left had Santander not bought out GE Money and made huge amounts of redundancies.

debt_doctor

Blimey JJJ,
They are seriously missing your previous good work! - I've seen a few bonkers things in my time from creditors but this is high up with best (worst) responses.

FOS it - but sadly from my recent experiences of FOS..... anyway, FOS it.

Example of one of my most recent bonkers letters was from the DRO unit........

The above named debtor has died and therefore his DRO has been revoked. The debtor has been notified accordingly........
DD