Mackenzie Hall statute barred, advice appreciated.

[Catcall9]

I've only recently found these forums and it's dawning on me that I may have made a huge mistake with Mackenzie Hall.

 

I've acknowledged a debt in writing after 8 years of no contact, and have been making payments for a few months now. I was recently told that even though I've acknowledged the debt and am making payments that I may still be able to sort this out so that I don't have to pay. (scottish law does not apply).

 

I've looked at IHTM28384 and other threads here but can't find anything definative on what happens if you acknowldege the debt after the statute barred time period of 6 years elapses except for ;

 

"Even though the lender may be barred from pursuing recovery, a debtor may decide to pay the debt after the expiry of the time limits. Because of this you should allow a debt which is otherwise statute-barred if the personal representatives pay the debt and you receive evidence that the payment has been made."

 

Am I now stuck with this debt until it's paid off ?

 

any advice appreciated,

 

p.s. I made a complaint in February 2008 to the OFT about the way I was spoken to and dealt with, as have many others. If this company has it's licence revoked eventually will I still have to pay then ?

 

[rory32]

Once a debt is statute barred you can not unstatute bar it. While the debt still exists it is your choice whether you pay it or not.

 

Did the company in question threaten legal action over this account?

[ODC]

The debt IS still statute barred. Once a period of 6 years elapsed without any payment having been made or written acknowledgement of the debt by you. Starting to make payments recently DOES NOT unstatute bar the debt.

 

You can STOP paying MH immediatly. If you have a DD cancel it forthwith. If you pay by card ask your bank for a replacement card. Send this to MH by recorded delivery. DO NOT SIGN IT

 

Dear Cretins

 

Acc/Ref No

 

You have contacted us regarding the account with the above reference number, which you claim is owed by ourselves.

 

We would 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.”

 

We 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”.

 

Prior to recent payments I felt forced into making under duress the last payment of this alleged debt was made over six years ago and no further acknowledgement or payment had been made since that time. Unless you can provide evidence of payment or written contact from us in the relevant period under Section 5 of the Limitation Act, we suggest that you are no longer able to take any court action against 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”.

 

We await your written confirmation that this matter is now closed and that no further contact will be made concerning the above account after that last letter.

 

We look forward to your reply.

 

Yours faithfully

 

I M Wise To-You

[babybear39]

Subscribing...

[Catcall9]

Hia, thanks, and yes........they threatende legal action, then threatened to contact my employer, then told me that they would take the whole amount out of my paypacket after applying to the court for an arrestment of earnings order,

 

When I eventually came out of the state of shock I was in I discovered

 

1) arrestment of eranings only applies to Scottish debts

2) attachment of earnings will only be granted by a judge if the applicant has proved that the debtor a) owes the debt b) has not made reasonable attempts to pay affordable amonts within an agreed timescale.e.t.c., e.t.c.,

 

unfortunately I found all this out after many months of harrassment and bullying and shocking phonecalls from MH which left me very scared.

 

My OFT complaint is progressing and in February I signed a release to disclose particulars of my complaint so that MH can be investigated - I did initially follow MH's complaints procedures as advised but suprise suprise, heard nothing back from them.

 

Is there any way that I can get proof that the debt is statute barred ?

 

It was originally for a HSB loan £2K, i paid it for 6 months then became ill, made redundant, moved 120 miles away and then got married.I never received any letters about this debt until 8 years later when I got divorced and changed my name back to my maiden name, RED contacted me first, then Mackenzie Hall.

 

 

many thanks for your help,

[Catcall9]

Hi ODC,

 

thanks for your reply..........Does anyone have any idea of how they will react to this, Im not getting phonecalls or letters at the moment.

 

Has anyone tried this course of action and succeeded in getting rid of them ?

 

replies appreciated, starting to feel a bit more optimistic

[Rahl]

Once you send the letter above, the onus is on them to prove it is not statute barred, not for you to prove it is.

 

You will need to escalate the complaint to the financial ombudsman as well as the OFT , considering they are not supplying you with a final or any other kind of response to your complaint.

[rory32]

Is there any way that I can get proof that the debt is statute barred ?

 

The onus of proof is on them to prove that it isn't statute barred (London Congregation Union Inc v Harriss and Harriss [1988] 1 All ER 15, CA at 13.3).

 

You may wish to send a SAR to HSB but as it's 8 years old they may not have records of the account.

 

Personally I would be pushing to get any monies that you have paid back from MH as they have unlawfully threatened court action on a statute barred debt in order to pressurise you into making payments.

[Catcall9]

Ok, thanks all, I'll be writing that letter today and won't be making any more payments.

 

I'll escalate the compaint and look at getting the £250 I've paid them back.

 

many thanks all, I'll post when I have any news on progress, excellent site !

[Rahl]

Do not sign that letter, just print your name .

 

By what methods have you been making payments to them so far ?

[Catcall9]

Do not sign that letter, just print your name .

 

By what methods have you been making payments to them so far ?

Hi Rahl, I've been paying by Standing order from my bank,

[Catcall9]

Do not sign that letter, just print your name .

 

By what methods have you been making payments to them so far ?

I have already written and signed my name regarding the complaint where I do acknowldeg that I owe the debt, but that I hadn't deliberately intended not to pay it, will this make a difference now ?

[Rahl]

Well it isn't good that they have a specimen of your signature . I suppose you could start signing letters in a variety of different ways, confuse them a bit as to which is the 'correct' one.

 

You need to cancel the standing order .

[Catcall9]

I've cancelled the standing order,

 

I think I must be very niaive, or stupuid or both ! ..why isn't it good that they have my signature ?

 

on that note, I also wanted to know if they had any right to search my credit file, they did when they first started dealing with this ?

 

thanks again.

[Rahl]

You could ask for a cca as well, then serve a s(10) data protection notice on them when they fail to produce one, but the search will only stay there about 12 weeks.

 

As regards the signature, they can allegedly do a lot with photoshop these days.

[Rahl]

CCA request :

 

Needs 2 visits to the post office for this. First trip to get the postal order which you take the number of and include in your letter, then you copy/scan it all, second to post it .

 

 

By Special Delivery

 

Dear Sir/Madam

 

Without Prejudice

 

Re:- Account/Reference Number 1234567890

 

No debt is acknowledged to you, or any other person or organisation you represent.

 

With reference to the above agreement, we would be grateful if you would send us a copy of this credit agreement.

 

We understand that under the Consumer Credit Act 1974 s.78 (1), s.77 (1) for fixed sum credit we are entitled to receive a copy of our credit agreement on request. Your obligation also extends to providing a statement of account. We enclose a £1 postal order in payment of the statutory fee, PO Serial Number xxxxx which represents the fee payable under the Consumer Credit Act.

 

This is , you will appreciate, a statutory obligation, whether you are the original creditor or not, under section 189 of the Consumer Credit Act 1974.

 

We understand a copy of our credit agreement should be supplied within 12 working days.

 

We understand that under the Consumer Credit Act creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

 

Please note, We must emphasize that the enclosed payment is the statutory fee in accordance with the consumer credit act 1974 s 77 (1) and is neither acknowledgement of nor token payment toward alleged debt .

 

Please note that We have copies of all correspondence and attached payments enclosed therein.

 

We look forward to hearing from you.

 

 

Send by special delivery in the same envelope as the statute barred letter, adopt a second new signature for these letters , one that is entirely distinguishable from your usual one. Use this second signature in all correspondence with them.

[Catcall9]

OMG ! I am niaive, but then I should really expect something like that after the load of cobblers I found out I was told by them about court action and arrestments of earnings !

 

ok I'm going to hold on that letter until I know what a CCA is

 

replies much appreciated if anyone has a minute to give me the dummies guide to cca's,

 

thanks.

[Catcall9]

Rahl, cheers for this, this makes sense as I have no idea where the additional >1K came from that was added to the original loan, you pre-empted me ! I'll get this organised to be sent recorded delivery at the same time as my letter telling them I will not be paying as the debt is statute barred.

 

many many thanks.

[Rahl]

I took a line out of that letter . 'Without Prejudice' . It shouldn't have been there, sorry .

 

Should be :

 

 

 

By Special Delivery

 

Dear Sir/Madam

 

Re:- Account/Reference Number 1234567890

 

No debt is acknowledged to you, or any other person or organisation you represent.

 

With reference to the above agreement, we would be grateful if you would send us a copy of this credit agreement.

 

We understand that under the Consumer Credit Act 1974 s.78 (1), s.77 (1) for fixed sum credit we are entitled to receive a copy of our credit agreement on request. Your obligation also extends to providing a statement of account. We enclose a £1 postal order in payment of the statutory fee, PO Serial Number xxxxx which represents the fee payable under the Consumer Credit Act.

 

This is , you will appreciate, a statutory obligation, whether you are the original creditor or not, under section 189 of the Consumer Credit Act 1974.

 

We understand a copy of our credit agreement should be supplied within 12 working days.

 

We understand that under the Consumer Credit Act creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

 

Please note, We must emphasize that the enclosed payment is the statutory fee in accordance with the consumer credit act 1974 s 77 (1) and is neither acknowledgement of nor token payment toward alleged debt .

 

Please note that We have copies of all correspondence and attached payments enclosed therein.

 

We look forward to hearing from you.

 

Yours

 

 

Just means you can use it in court now .

[rory32]

A CCA request is not required at the moment. If the account is statute barred it makes no difference whether a credit agreement can be produced or not.

[Rahl]

Yes, it was really because of data protection issues that I thought to ask for the cca. So that a s(10) notice can be sent.

[Catcall9]

A CCA request is not required at the moment. If the account is statute barred it makes no difference whether a credit agreement can be produced or not.

rory32,

 

ok, I'll keep it simple and start with the statute barred letter, recorded delivery.

 

It's good to find out about the CCA for the future though as I didn't realise I had these rights,

 

cheers again.

[rory32]

The s10 notice can be sent on it's own.

[Catcall9]

A CCA request is not required at the moment. If the account is statute barred it makes no difference whether a credit agreement can be produced or not.

Ok, it also makes sense to keep it simple, I'll get the statute barred letter off ASAP, but it's good to know I have rights as per CCA request for the future,

 

many thanks again all.

[rory32]

Regarding your OFT complaint and some new powers they now have you may wish to have a read here http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/146460-consumer-protection-unfair-trading.html