Debt over 10 years old

[JP08]

Hello, this is my first time on your forum,

I found you by a search on google and have found some threads similar to mine and the good advice that memebers have given other people,

but I have some questions that I have been tring to find answers on and so far I have been to the CAB, 2 solicitors,

Financial ombudsman, a barrister and taken my ex to court and nothing has changed, I am still fighting this 18 years later.

 

 

My predicament is that my ex had some bank accounts that he had defaulted on back in 1990

and I was hounded by him and the bank to co-sign an agreement to have it all merged in to one debt and a charge put on the property.

This was put on the house in 1990 as well.

 

To cut a long story short, we split, he never paid any money towards the debt and a CCJ was received.

The CCJ's have long since disapeared.

 

The only reference to the debt is on only 1 Credit reference agency and. It says deliquent account and a mention of Default.

It has a default in June 2002 and account Balance as of January 2003 Balance £0.

 

I then received a letter in jan 2003 from a DCA saying that they now had the debt.

Since then I have been fighting with the DCA.

 

The charge is still on the house and has never been changed to the name of the DCA.

 

The inital questions I have are as follows:

I sent the DCA a subject access requested and they sent me a screen print of telephone conversations in txt talk and a copy of payments made by me - this was in 2007,

well over the 40 days and the FOS would not comment on it.

 

I get confused on the difference between a cca and a SAR,

 

Should they have sent me a copy of the agreement etc with an SAR? I did pay the £10 fee for this? I still have no proof that they have the agreement.

 

They tried to take me to court last year to get another charge put on the property for the same debt

when I challenged it they dropped the case, even then a copy of the agreement was not produced.

 

Had a vague letter last year saying that they would agree to my paying on 50% of debt if I came up with a lump sum.

 

Now they know the charge exists on the house, they are saying via the ombudsman that this is no longer a viable option

and they are going to put the charge on my property in their name and I will have to pay the full amount?

Can they do this?

I thought the charge had to be removed if it was not sold with the debt and that was in Jan 2003?

 

Has anyone come across this before, I am getting very stressed about this,

my complaint to the FOS was not upheld.

 

Any suggestions on what I should do next,

 

I would appreaciate any advice.

 

Thanks

[thecteam]

if i read right in your post the last payment was made in june of 2002. if so and you have never ever made a payment or made and agreement in writing to anyone then debt is statue barred. it is no longer inforceable.

 

there is a standard letter in the template section i noticed for such things as this.

 

a S.A.R - (Subject Access Request) will get you all statements of accounts and any information they hold against you. thats a £10 charge

 

the CCA request is for the original consumer credit asgreement you both would have signed, also the creditor should have signed it. interest rate that is charged, the amount each month you have to pay and the terms and conditions which you should be illegiable at all times.

 

do a search for statue barred on here. i can't believe a solicitor and the cab couldn't tell you this.

 

have you moved at all. as the bit about you have a charging order on the home,. but it isn't good enough so they want to put one on your property. seems they are trying to con you into paying it back to them.

 

was you given a ntice of assignment from the original debtor. or a deed of assignment at anytime. as the debt is £0 on your credit report suggests it was sold.

if you can still see the debt on your credit report today i suggest you contact the credit refrence agency and explain they have a default on your file that is over 6yrs old. this is totally unacceptable as they clearly state they only keep records for 6yrs.

if they reply saying they can't remove it. inform them you will contact the information commissioners office to report a libel statement on your credit report.

 

im sure someone with a bit more knowledge will reply soon, but we are in the months of holidays so it might take longer to get a reply.

[JP08]

Hi The C Team

Thank you for coming back to me.

I had been making token payments to the bank all of the time,

out of the blue in Jan 2003 I received a letter from the DCA stating that they had taken over the debt and to not speak to the bank anymore.

 

Nothing about a deed of assignment, or notice of assigment from the orginal creditor.

 

But all of the times I have tried to contact them direct; via solicitors etc they pass it straight to DCA. Who then reply.

 

I have also been making regular payments to the DCA of which keep trying to get me to increase payments.

 

Just before the court case they wrote to me stating that they would accept my token payments so long as they could put a charge on the house,

but they would not try to instigate proceedings to take my house. ( Don't believe them)

I am still making token payments.

 

So On the SAR a copy of telephone conversations in txt talk and a copy of payments made by me is that all they needed to send me for my £10?

That is all I got back in June 2007.

 

I thought that they had to send me everything they had on me including what I would have received on a CCA? hence why I am confused.

 

So should I now send a CCA Request as well?

 

The FOS did not advise me of this as I sent it to them at the time on my case of complaint against the DCA

for trying to pressure me in to increasing my payments to a sum I could not afford etc.

 

No; I have not moved, I believe if the debt was sold on in Jan 2003 it was without the charge as they did not even know about it until they tried to take court action in May 2007.

 

They are now trying to take over that charge on my house according to FOS and that an original vague offer of my being responsible for 50% of the debt

if I pay a lump sum is no longer available to me; as they now know a charge exists and they want to take the full amount.

 

I thought that if the debt was not sold with the charge that the charge had to be removed?

 

If they did purchase the debt it was Jan 2003 and that was 5 and a half years ago.

 

Can a deed of assignment or the sale of the charge be sold to the DCA after the balance of the account has been £0 for 5 and a half years?

 

I need to know what to do to stop this as I do not think it is right.

 

I will request another copy of my credit report with the Credit reference agency concerned.

 

I have a subscription with experian and it has not showed up on there for years only this other one.

 

I will let you know what it says now.

 

Thanks

[Rooster-UK]

I will move this thread into the Debt Forum, where you will get the help and advice that you need.

 

Regards, Rooster.

[JP08]

Hi Rooster,

Many Thanks; I know that this is a complicated problem, I am just frustrated that even legal people that should have been there to help me have let me down. But if anyone can give me advice or has been here before and has their own story on how to get this sorted I would be very greatful. I am a single parent and this is just one of my problems. I can deal with the rest but this one I feel that I have been totally brickwalled on.

Regards

JP08

[Billyhunt]

hI jp08,

 

It does seem complicated and I can appreciate how frustrated you must feel.

 

Does your ex have any beneficial interest in the home. Is it in your name only now?

Is there any equity in it?

The original agreement you made to consolidate the debts into one and put a charge on the house, was that in both your names or just yours? You say you took your ex to court, is he still liable for any of the debt?

 

More importantly, when the first charge was put on your home, if it was a voluntary one, agreed by you and the bank, what were the terms, can you remember? do you have any paperwork? It may have stipulated that the bank could not act on the charge to force you to sell, the house could only be sold when you decided to, or it may have had a time limit attached to it, for example no action to be taken for 10 years. It may also have frozen interest. It might be worth looking at this first and trying to deal with this to see where you stand before tackling the debt agency.

 

I will try to find out some more info regarding charging orders being transfered but hopefully someone more knowledgeable will be along to clarify this.

 

Chin up, this can be sorted

 

Billy

[JP08]

Hi Billy

Thanks for your support

When I took my ex to court about this debt, I was given a court order against him to pay me a sum of £300 a month by way of a maintenance order to pay this debt, This has never been actioned because I can't find him, I have to find him and give his new address tel number etc. The same with the CSA there is comittal proceedings, but again 18 years later we have to find him first.

At the same time I had his name taken off of the house, The charge is still in joint names though as far as i know on the land registry and is for the original amount. It has never been changed according to my solicitor. Only my mortgage one is in my name only.

Yes there is some equity but the way house prices are going at the moment, I do not know if that will be the case soon.

The original legal charge agreement was in both names on the legal charge document, it does not state any amounts on that though.. I think I have a copy of the orginal agreement somewhere but I will have to find it out. On the entry from the credit ref agency it States Starting balance not supplied, Account holder start date 30/10/1990, Account end date 01/12/02 Repayment period 301 months. Date of delinquancy 01/06/02 deliquency balance £33530.00, Current balance £0 as of Jan 2003. The figure on the charge is also inaccurate as I have been paying all this time.This statement was produced in 2006, But I will request a revised copy to see what it says now.

 

I will try and find out the copy of the agreement, if there is one I can't remember if I have one or not.

regards

JP08

[Billyhunt]

Hi JP08,

 

I think it would be really helpful if you can get as much information regarding the original charging order. I have dealt with individuals who have had charging orders in place that just simply sit there until they sell with no payments made by them in the meantime, although interest is still charged. There are others where the charging order is in place to ensure you pay the agreed amount per month. Others have interest frozen or agreements such as no forced sale will be pursued until the youngest child is 18 etc so they can be quite different. If we can work out exactly what you signed up to, you will then know what you are dealing with.

 

If the bank still had a valid charging order, it seems really strange that they have decided to pass it on or sell it to a debt recovery agency. Why not just sit tight and let the interest increase until you sell your house or try to force you to sell (which would be extremely unlikely as this is very rarely granted by courts especially as you are a single parent). If you can get as much info together about the original charging order, I wonder if it might be possible to go for a variation order? Maybe include info about your ex not being found this time etc, you may be able to alter the payments or get the amount owed reduced as things have changed significantly since the original one was set up. See what you can find out. As you have aknowledged the debt and made payments up till recently, it would not hurt to contact the bank and send them a S.A.R - (Subject Access Request). You would then see the agreement, the amount you have paid off and possibly find out if the current charging order is still valid.

 

I haven't been able to find out the rules for passing on a charging order but I can find out when I am in the office in the next day or so if no one else comes up with any answers.

 

Good luck, Billy.

[JP08]

Hi Billy

 

I have searched the house and I do not have a copy of the original Debt, I think my ex took that with him as he was supposed to be responsible for paying this debt whilst I sorted out all the rest of his mess. Which I have done over the years.

The interest was frozen years ago.

However, I have an unexecuted copy of the charge. It says "home Owner Legal charge. it is not dated nor is it signed by the Bank.

I will have to write it down as i do not have access to a scanner. it says

1) This deed is supplemental to a home owner loan agreement ("the agreement") of even date and made between the person(s) (the Borrower") and the Bank.

2) The borrower as beneficial owner herby charges the property referred to above ("the property") by way of legal mortgage with payment to the bank of all monies ("the mortgage debt") which now are or shall at any time herinafter be owing to the bank

1) under the agreement

2) under any agreement which may be made between the borrower and the bank after the date herof and expressley provides that it is to be secured by this legal charge ("a future legal charge") and

3) Under the provision of this legal charge ("the legal charge") by way of further security for the said monies herby assigns unto the bank all that the beneficial interest of the borrower in the property and the proceeds of sale thereof to hold the same unto the bank absolutely provided that on redemption of the legal charge the bank will at the request of the borrower re-assign to the borrower such beneficial interest.

 

Is this enough to say what type of charge it is? I do not know why they passed it to a debt collector either or maybe they have forgotten there was a charge on the house as well?

They had never threatened court action for sale of the property whilst the debt was with them either.

 

I hope this helps? Should I send a S.A.R to them now? I don't know if they will just send it on to the Debt collector the same as they have everything else I have sent them including solicitors letters. But I will give it a go.

Thanks for listening and for your help so far.

 

Regards

JP08

[JP08]

Forgot to say, my last solicitor wrote to them explaining about my ex supposed to be paying this and that I had given them lots of information including addresses, telephone numbers over the years and asked about reducing the liability to 50% as I had never seen a penny of this money. This is when the DCA sent the vague letter about maybe reducing the liability, but now they know there is a charge on the house they want the lot.

[Billyhunt]

Hi JPO8

 

Thanks for writing that lot out. I think you need to see a copy of the original and that it is only fair for the bank to provide this. I would send a S.A.R - (Subject Access Request) to the bank and make it clear that you want all the information THEY hold, confirmation that they have no further interest in the debt and that they have no interest in the charge. We need to see exactly what was agreed on the original charge if they still have an interest. For example a payment plan and if the charge includes grounds to try to force a sale if the payments are not paid. If the charge is not tied into payments or has no other conditions and has been made to just sit there until you sell then I cannot see how a debt agency can do much.

 

The bank may have got fed up waiting for you to sell and have instead sold the debt on. We dont know this but it might be the case. If so then I would have thought the charge is null and void as the bank are no longer owed any money, it is owed to the debt agency (this needs to be checked though). If the bank dont have the debt anymore and the debt agency is not named on the original charge surely the debt agency would have to go for a new one. Now, if they only paid the bank a small proportion of the debt value, wouldnt a new charge only be for this smaller value? So many questions that need to be answered before you part with a penny.

 

(1) Surely they aren't able to force a sale as things stand, as they are not named on the charge, the bank are. So what can they do at the moment!

(b) Wouldn't they have to go for a new charge and if so, you would be able to put your side before it was granted and this might be to your advantage as you could show whats gone on since the original was set up.

(3) For them to go for a new charge, surely this one would have to be cancelled first.

(4) I have a feeling you are in a stronger position than they want you to believe. As far as I can see, the best they can hope for is getting a new charge in place and as mentioned you can defend against this and thats if it is possible for them to get it in the first place.

(5) What if the bank have sold the debt and because of this, the charge is no longer enforcable. You may be able to apply to have it removed.

 

I am unable to advise with complete confidence on this as it is out of my area but I will find out as much as I can when I am back in the office tomorrow. Maybe someone with more knowledge in this area will be in touch before this. At the moment, I still feel getting as much info from the bank is important. We need to know what the deal is with them passing the debt on to the collector, have they sold it? If so has their interest in the charge finished?

 

See what information you can get from the bank via the S.A.R - (Subject Access Request) and dont agree to pay anything to the debt collectors yet until you know where you stand with the current charge. They might be bluffing and trying to force money out of you when they cannot enforce the charge anyway.

 

Good luck, I will keep an eye on this and will get some info for you if I can.

 

Billy.

[JP08]

Hi Billy

 

Thank you for this, I will write to them tonight and see what comes out of it.

Regards

JP08

[JP08]

Hi Billy

A bit of delay on the S.A.R. But rumaging through my paperwork for the address of the bank I found that the letter my solicitor sent for the attention of the bank actually had the address of the DCA. They opened it and replied, not to say that the address was wrong; but to give that 50% liability offer that they have since declined. isn't that illegal seeing as it was not addressed to them?

Regards

JP08

 

I will be sending the S.A.R. off today.

[Billyhunt]

Hi JP08,

 

Not sure if it is illegal but its probably unethical but there you go, we are talking about a debt collection agency.

 

I have discussed the situation of a debt collection agency trying to take over and use someone elses charging order with a colleague who has far more knowledge in this area than I do. Bearing in mind he deals with banks, debt collecting agencies etc he has never heard of a bank selling or passing a debt on to a debt collection agency if they have a valid charging order in place. Why would they, they have their debt secured. If it is correct and the bank have passed the debt on to the debt collection agency in your case, then the charging order is worthless to them. They will have to apply to court to get another and as I mentioned, you will be made aware of this so that you can put in a defence against it. So ignore their threats that they are going to use it.

 

I suspect that for whatever reason the charging order may not be enforcable anymore and the bank have cut their losses and sold the debt. That means that your debt is now unsecured and you are in a stronger position. Sit tight wait for the information from the bank regarding the S.A.R - (Subject Access Request) as this may show that the charging order is no longer valid. Tell the debt collection agency that you have contacted the bank and until you have received a reply from them you will not discuss the situation further.

 

Good luck and keep us posted.

 

Billy

[thecteam]

tampering with the queens royalmail can be punishable with upto 3-10yrs. this would includ opening up a wrongly address letter as it wouldn't have the name of the person that opened it.

 

but im sure they could get round it. but worth throwing it back at them.

[JP08]

Hi Billy and theCteam

 

Thank you for your updates. I have just checked the recorded delivery and it was delivered yesterday, just waiting for the POD to be made available on the web.

I did think it was not right opening mail not addressed to you. I do like to have confirmation though. I think I am going to complain to my solicitor as well for not putting the correct address on it. I paid him for a service and he has just made things worse as they now have more information about me than they should have.

I will wait for the SAR and then see what that says before writing to the DCA, I may have a lot more to say by then, when I S.A.R'd them they did not send me anything except a list of payments I made and a screen print out of Txt talk telephone conversations. I think they should have sent me a lot more than that. They have had 2 opportunities to prove that they own the debt now and failed twice.

Thanks again for all your help. I will update as soon as I know something

 

Regards

JP08

[JP08]

Hi

 

My S.A.R was signed for on the 17th as well, I have not heard anything since. It is 8 working days, should they have acknowledged this by now? I don't know if I have had any post today though.

 

Regards

JP08

[saintly_1]

who have you sent this SAR to ?

 

If it was the same people that you sent the original SAR too then you could of just sent them this letter amended to suit http://www.consumeractiongroup.co.uk/forum/bank-templates-library/6986-data-protection-act-non.html

 

saint

[JP08]

Hi Saintly 1

 

I have sent this one to the Bank, they received and signed for it on the 17th of July and I have not had an acknowledgement that they have received it. I thought that they had to acknowledge it straight away? I have heard nothing from them at all yet.

 

I Sent one to the DCA a year ago and they did not come up with anything other than a list of my payments and a screen print in txt talk of all the telephone conversations between us. I did leave this to the Financial ombudsman as they were dealing with my complaint at the time, however they just ignored it that no proof had been shown that they purchased the debt and the FOS just accepted it from them verbally by telephone.

 

Thanks

JP08

[saintly_1]

The bank dosent need to acknowledge the SAR , they have 40days in which to comply to the request.

[Billyhunt]

Hi JP08, have a read through this.

 

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/subject_access_-_guide_for_data_subjects.pdf

 

Notice there are different rules for credit agencies etc so worth reading so you dont get confused. I know it's stressfull but you are doing really well, just sit tight, the 40 day clock is ticking now for the bank so just see what they come up with. Have you heard anymore from the DCA?

 

 

Best wishes,

 

Billy

[JP08]

Hi

 

I have not received anything from the bank yet about the S.A.R, but I did query with my previous solicitor about them sending that letter for the attention of the bank but with the DCA's postal address and the DCA responding as if it was addressed to them, to see what the response would be and I have copied it below.

 

It is questionable whether XXXXXXXX did commit an offence under the Postal Services Act 2000 as the letter was sent to their address and the addressee's name was that of a bank from whom a debt apparently had been assigned (and I suspect yours is not the only one).

I have still not had any proof it has been assigned or sold on to them, but this is the kind of response I have been getting all along, is this right? Could this be an argument that the DCA could put up, if I was to query them tampering with the Royal Mail?

Thanks

JP08

[JP08]

Hi Billy

 

Just seen your update didn't notice it as I did not know we had got to another page yet. No I have not heard from the DCA either, albeit I suspect I will soon as I forgot about my payment it was due on Friday and I paid it in cash to their bank on Monday. I do suspect that I will get the letter stating they want the full amount by end of play on the same date they wrote the letter again, which is impossible. They then send it second class.

Thank you for the link, I will have a read of it and thank you for your continued support. I need it.

 

Regards

JP08

[Billyhunt]

Hi JP08 sorry for not replying sooner, I have been away from the computer for a few days. Regarding missing the payment on Friday, I have a feeling you may not be required to pay at all but we need to see what info the DCA comes up with along with the bank before making a final decision on what you can do next. The clock is ticking regarding the S.A.R - (Subject Access Request), the ball is in their court and you have done everything by the book, so just sit tight and let them either put up or shut up. Keep us posted.

 

Thanks for your kind words and remember you are not alone there are plenty of people who will help and advise you. Again, I think you are in a stronger position than the DCA may wish you to believe you are.

 

Best wishes,

 

Billy

[JP08]

Hi Billy

 

I have not had the dreaded letter from the DCA yet, maybe they are wondering why I never called them back after the cryptic message they left on my voicemail a couple of months back. The 40th day for the S.A.R. to the bank falls on the Bank holiday, do you have to allow another couple of days on top of that for them posting it to me?