Capital Recoveries chasing

[moonwoman]

Hi 42man, and thanks for your reply.

 

As I've already sent them the 'doorstep' letter I was hoping for something a bit stronger which mentions that they have ignored my previous letter in which I have already revoked their right to send someone to my property. I have seen one somewhere on the forum for a similar situation, but at the moment I can't find it (should have saved it then I know!)

 

Moonwoman

 

Edited to say..... I don't have the facilities to record phone conversations at the moment, and the way I feel at the moment I think it would be better I don't speak to him/her (signature on their letter isn't legible of course)

Edited October 6, 2008 by moonwoman
Adding more info

[moonwoman]

I am toying with the idea of sending the following by email as an interim measure until I can compose myself and compose a full letter!

 

Proposed email....

 

To whom it may concern

We note that today one of your representatives visited our home address in connection with the above reference number. We have made our position regarding a visit to our home perfectly clear in our letter of 3rd July 2008. We have reproduced the relevant paragraphs below for your information....

 

Furthermore, should it be your intention as mentioned in your letter of 20th May, to arrange a “doorstep call”, please be advised that under OFT rules, you can only visit us at our home if you make an appointment and we have no wish to make an appointment with you.

There is only an implied license under English Common Law for people to be able to visit us on our property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.).

Therefore take note that we revoke license under Common Law for you, or your representatives to visit us at our property and if you do so, then you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

 

Obviously you have totally disregarded this. We will be sending written correspondence on this matter and also regarding outstanding documentation of our Subject Access Request to yourselves, within the next few days. However as the letter your representative left asked for a response in two days we have sent you this email as an interim measure. We re-iterate the statements above highlighted in yellow. We also draw your attention to the fact that the letter of our Subject Access Request stated that we would only communicate in writing on this matter, therefore please remove our telephone number from your listings and refrain from leaving further telephone messages.

 

Please note that this email address is a temporary address and that once we have received your acknowledgement that you have received this email, this inbox will not be accessed, so please refrain from communicating any further by email, other than to acknowledge your receipt of this email.

 

Any comments on sending this just to hopefully stop any further visits, until I can send something stronger by post?

 

Thanks

 

Moonwoman

Edited October 6, 2008 by moonwoman
removing cut and paste formatting!

[moonwoman]

OK, well I wanted to get something off to them ASAP bearing in mind they asked for a response in two days and are threatening further visits, so I have sent the email as above, with a few minor changes to make it read better. Was awake at 4.00am this morning worrying about this - not that I expect them to turn up at that time!

 

Please, please can anybody help by directing me to a letter that has been sent in similar circumstances - when a request not to visit or to phone has already been made and ignored, or with any other advice on my post generally.

 

Thanks

 

Moonwoman

[moonwoman]

Hi - I have just noticed that there is a 'Mortgage and secured loan' section on the site (sorry, but the site is so big I've only just found it whilst searching for some more info!) Is there any chance of getting this thread moved to that section, for some 'specalist input?'

 

Thanks

Moonwoman

[moonwoman]

Thanks for moving the thread. I have had an acknowledgement email from Capital Recoveries to say they have received my email and look forward to receiving my written correspondence.

 

Any suggestions gratefully received - as you can see from the thread I really don't have a clue, but I copy a good letter!

 

Moonwoman

[moonwoman]

Hi all,

Any help on this at all please? If not I have a whole day at home tomorrow, so will have to try and cobble something together to send them.

 

Not that it is an option at the moment, but is there an accepted percentage which is considered acceptable as a full and final offer?

 

Moonwoman

[ndcdavis]

I suggest you do some research before you correspond any further, to get your ammunition ready.

 

You need to see if you still have a copy of the original possession order. If not, contact the court to try to obtain a copy.

 

This is because many lenders at that time obtained a judgment for the sum outstanding under the mortgage at the same time as obtaining a possession order.

 

Note:

1. It is difficult to enforce a judgment after 6 years (most lenders think it is impossible, but this is in my view a misreading of the law).

2. interest on a judgment is limited to 6 years from date of judgment

 

However it does mean that the lender cannot bring new proceedings on the debt. If it does, the proceedings should be struck out as being an "abuse of process" as they are for the same debt.

 

I have run this argument twice recently in different courts and the outcome was the same: lender's claim struck out and the lender ordered to pay the costs!

[moonwoman]

Hi 'ndc'

 

Thanks for your reply. I haven't sent anything yet - as I feel the same - that I need to be more knowledgable first. Re the 6 year timescales etc - Capital Recoveries did contact us within that timescale, and we have paid some monies to them on a monthly basis, although not at the moment, so I'm not sure where that puts us.

 

Have I understood your post correctly - ie: if the building society obtained a judgment for the sum outstanding under the mortgage at the same time as obtaining the possession order, then that means they cannot go to court again to chase up the debt?

 

Is it feasible to ask for a copy of the possession order under my S.A.R - (Subject Access Request) request, or will I need to get it from the court. I will have a trawl back through the filing cabinet as well, just in case I still have a copy.

 

Moonwoman

Edited October 18, 2008 by moonwoman
edited to make more sense!

[ndcdavis]

Yes, my view is that if the building society obtained a judgment way back when they got a possession order, then it is an abuse of process (technically 'issue estoppel') for them to bring a new county court claim for the same money. This is because they already hold a judgment for the amount due.

 

I have recently been in court in two such cases (one brought by A&L the other C&G) and in both the judge struck out the claim and ordered that the lender pay the costs.

 

This isnt a complete solution to the problem, however. Although the banks all seem to think that an old judgment is not enforceable, regrettably I dont think that is right - I keep thinking about writing an article on this, but I dont really want to help them

 

 

Anyway, I wouldnt get hung up on an SAR. Just do a short letter:

To enable me to take proper advice on your demand for monies, please can you let me have:

1. a copy of the Possession Order, which I believe was made in YEAR.

2. a full statement setting out how much you allege is due, showing how the amount has been calculated.

 

at the same time you might as well contact the court to try to get the copy from them.

 

On this argument, it doesnt matter that you have been making payments. They cause you difficulties on a defence based on the limitation acts but that isnt a defence you would be running.

[ndcdavis]

Also, if they continue to harrass you by phone, when you have asked them to stop calling you, you need to take action.

 

Harrassment of a debtor is a CRIMINAL OFFENCE. see s.40 Administration of Justice Act 1970.

 

There is a very helpful factsheet about this, and to whom you should complain at Debt Factsheets - Harassment of people in debt by creditors

 

Regards

Nick

[moonwoman]

Thanks for your replies Nick. The phone calls have stopped for the moment since I sent my email. However on Saturday we received a letter from Beers LLP Solicitors. I don't have access to a scanner at the moment, so I will retype it.....

 

'We are instructed by Capital Recoveries, Loss Recovery Agents for the above named Client, in relation to the debt detailed above.

 

This debt is the difference between the net sales proceeds of the property you mortgaged and the amount outstanding under the legal charge on the date the property was sold. In addition interest payable from the date of sale can be charged.

 

You are asked to reply to this letter within seven days.

If you do not reply we may commence court proceeding without further notice and you may receive a summons from the court, the awarded costs of which could increase your liability.

 

When you reply, either in written form or a telephone call to our office, you should set out your proposals for the repayment of the debt. If you think you cannot afford the whole amount you should inform us of your financial and family circumstances in detail, including your income, outgoings, assets and current debts.

 

For the avoidance of doubt, we inform you that all payments that have been made to this account, including the sale proceeds of your property have been appropriated firstly to interest, secondly to costs and thordly to the capital sum.

 

Whilst our Client is entitled to the whole amount claimed, in appropriate cases we have authority to negotiate the payment of a lesser sum in satisfaction of the debt, either by lump sum or in instalments, so we urge you to contact us within seven days to discuss this matter.'

 

 

In view of your earlier post I find this part interesting... 'This debt is the difference between the net sales proceeds of the property you mortgaged and the amount outstanding under the legal charge on the date the property was sold.' Is that likely to be the judgement you referred to?

 

 

Would you suggest I send them your 'short and sweet letter,' instead of to Capital Recoveries?

 

On past occasions, when Capital Recoveries have offered a reduced settlement figure it has been in the region of £5000 - £6000, which is completely out of the question for us. I could raise about £500, maybe £700, as a loan from a relative, if it was to be a full and final settlement to end it all. Should I offer £500 as a full and final settlement offer or do you think they will fall off their chairs laughing? I perhaps should explain that we are overdrawn at the bank, behind on our rent, council tax - behind on everything actually, and that we are paying off an old Inland Revenue Tax bill, which is subject to monthly review at the moment, and the IR expect any disposable income (hah hah!) to go to them, so there is unlikely to be anything in the pot for this for the foreseeable future. Even so I can't see them accepting £500, but is anything worth a try?

 

Many thanks for your help

 

Moonwoman

[ndcdavis]

'This debt is the difference between the net sales proceeds of the property you mortgaged and the amount outstanding under the legal charge on the date the property was sold.' Is that likely to be the judgement you referred to?

 

 

Would you suggest I send them your 'short and sweet letter,' instead of to Capital Recoveries?

 

Moonwoman

 

The solicitors are trying to make out that this is a new debt based on the shortfall. My point is that this is not so, and the chances are that there was a judgment made.

 

Send the letter requesting info to both the debt collectors and to Beers. You might as well do the SAR direct to the bank - you never know what might result!

 

If you are considering a small offer then do that by phone and dont put anything in writing (just in case of any limitation argument later).

[moonwoman]

Thanks for the advice.

 

I'll definitely get off the two letters asking for the info from Beers and Capital Recoveries. I will have to wait a bit before trying the SAR to Alliance & Leicester as I have already sent the SAR request a while ago to Capital Recoveries and am loathe to spend another £10, as it is difficult to find at the moment. Cap Rec did send me a copy of 'everything they have on file' but no statement as such.

 

Re making an offer by phone - would it be better to wait for their response to my letter before doing so? Sorry to be so dense, but what is a 'limitation argument' as referred to in your last paragraph.

 

Thanks

Moonwoman

[ndcdavis]

Yes, wait for the replies before making any offer.

 

An offer in writing is an acknowledgment of debt, and thus reactivates the limitation period if relevant.

 

N

[wellmeantadvice]

Another point you might be able to take up with them is the apportioning of payments- they state in their letter "For the avoidance of doubt, we inform you that all payments that have been made to this account, including the sale proceeds of your property have been appropriated firstly to interest, secondly to costs and thordly to the capital sum."

 

That would appear to be in contravention of s. 6.2 of the County Courts (Interest on Judgment Debts) Order 1991

 

The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) - Statute Law Database which states "Money paid by the debtor in respect of any judgment debt shall be appropriated first to discharge or reduce the principal debt and then towards the interest."

 

 

[ndcdavis]

I agree with wellmeantadvice's point about the interest, but again this argument only works if there was a judgment way back when the possession order was made.

 

In the only other historic A&L case I have seen there was a money judgment, so the likelihood is that there would be one (lenders are normally consistent in what they ask for).

[moonwoman]

Thanks Nick and wellmeantadvice. I have sent the short letter as suggested to Beers via guaranteed delivery, so once I get a response I will post it here. It is an interesting point about the interest, as their letter states quite clearly 'firstly to interest,' so hopefully once I get a response to my letter that will give us an idea if there was a judgement made? The repossession itself took place in 1996.

 

Thanks again to both of you for your help - it is really appreciated.

 

Moonwoman

[moonwoman]

Well the post has just arrived, with a response from Capital Recoveries. I sent my letter to Beers Solicitors, so they have obviosuly passed it back to Capita Recoveries. They state....

 

".... In response to your request for information, please note:

 

1. On cases where the debt has been acknowledged by payments our Client retain their litigation files for six years. As you have made repayments and acknowledged this debt, the file containing the Possession Order has been destroyed.

 

2. You have already received a Statement showing how the debt has been calculated but we enclose this again for ease of reference (they didn't enclose it in the envelope!) Please note that included in this claim, we pursue under Subrogation, any monies owed to the Morgage Indemnity Insurer.

 

On point one - surely they should keep a copy of the legal documents that refer to the debt they are chasing - whether or not I have acknowledged or made any payments? I haven't been in touch with the court to try and get a copy that way - I don't even know which court I would need to contact.

 

On point two - they sent two photocopies of documents that mention the actual amount of money from the shortfall. One is the instruction from Alliance and Leicester to Capital Recoveries asking them to commence collection of the total amount, and the other is is entitled 'Copy Realisation Account' and lists all sorts of things such as the selling costs, buildings insurance, locksmiths etc., and Interest from 19/7/91 to 27/9/96. They haven't sent me anything that shows the payments made to the account - in my orignal SAR request I asked for a complete list of transactions and charges relating to the abve reference and account number, or a complete set of statements. My original SAR request was sent on 1st July 2008.

 

I don't really know what to do now - at the moment I'm just feeling like I'm not up to dealing with this. Is the fact that the Solicitors have passed it back to Captal Recoveries to reply, and the rather 'muted' response they have sent, a good sign? Are they entitled to just destroy the Possession Order after six years, or are they just trying to fob me off?

 

I suppose my next step is yet another letter requesting a complete set of statements or list of trasactions as per my orginal SAR request, or is there another approach I should take?

 

Thanks

 

Moonwoman

[ndcdavis]

Have you contacted the Court to try to get a copy of the Judgment? This now has added importance!

 

New authority hot off the press - A claim for a 'mortgage shortfall' was correctly struck out as an abuse of process where the bank already held a money judgment it had been awarded at the same time as the possession order - Alliance & Leicester Plc v Reynolds (14 Nov 2008) His Honour Judge Platts, Warrington County Court.

 

I will do a separate longer post on a new thread once I finish typing up the judgment, probably on Monday.

 

Pls PM or email em for more details.

 

Regards

[wellmeantadvice]

This could be interesting- while you have acknowledged a debt, you have not acknowledged any given amount of debt. They still have to prove their entitlement to the amount, if you dispute it- they can either do that by relying on a money judgment, if they have one, or they would have to prove their case by providing all of the detailed statements of accounts, including any payments made, fees & interest charged, etc.

 

From what you say, it sounds as though they might have difficulties in doing so, if they don't have a money judgment, and if they do, then interest should not have been charged at that rate.

 

@ndcdavis,

 

That judgment sounds interesting, but I suspect it would be merely persuasive, rather than binding, as it is a county court judgment?

[moonwoman]

Hi,

 

Ndcdavies - I have just read your seperate post re the Alliance & Leicester case which was thrown out. I wonder if Capital Recoveries are aware of it! Our mortgage was with the Alliance & Leicester originally

 

Sorry to sound dense, but how do I go about findng out which court to contact - should I just ring the local courts and ask for their advice?

 

Capital Recoveries have asked us to respond with our intentions - should I just reply at thiis stage to ask again for a full statement of the acoount etc? Assuming I have managed to contact the court for a copy of the order/judgement, should I mention that in my response to them, or not?

 

 

Thanks,

Moonwoman

Edited November 21, 2008 by moonwoman

[ndcdavis]

Beers LLP are aware of it

 

The possession proceedings would have been brought in the county court local to the property which was repossessed.

 

Regards

Nick.

[citizenB]

babs, I am moving your post to a thread of its own as you have tagged on to one that has long finished.

 

I will send you a link in a moment.

[citizenB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?357270-babs1967-v-Capital-Recoveries-chasing&p=3902067#post3902067

 

babs1967 has a new thread.

[hasanyoneever]

Re: Capital Recoveries chasing

 

Has anyone been taken to court by CR or DMS and if so what happened?