advice on case First National Bank - v - Office of Fair Trading 2001 (2002)

[shampooplanet]

I am being pursued by a DCA for a debt relating to a loan taken out in 2000 for £3000. The DCA are claiming I must pay £7000. The debt should have been paid by my ex husband following our divorce as I had agreed to pay a number of other outstanding amounts during the sale of our house. I didnt hear anything about this debt until last year. I engaged a solicitor as I wasnt sure if their claim was legitimate. He initially attempted to argue that the claim was statute barred but the DCA quoted case law saying that it wasnt the case being First National Bank -v- Office of Fair Trading 2001 (or 2002). My solicitor has only been able to tell me he isnt sure if this case is still upheld. He has advised me to offer a lump sum which I have done on 2 occasions, the DCA have rejected these and asked me to complete a statement of means and to make an offer of monthly payments. They now say that if I opt to make monthly payments the interest will continue to accrue, they have again asked me to make a lump sum offer, I have already offered £4000. I also dont know if they are in contact with my ex husband as they have been given his details. I keep having to pay more to my solicitor to keep making offers etc. ANY advice on what to do would be so gratefully received. Its so stressful isnt it, Im not sure how confident my solicitor is in this areas either as he says he doesnt know what to advise me. I feel really helpless at the moment as I dont have the money to pay the whole amount and dont want the interest to continue to be added on to the debt PLEASE HELP ME FORUM PEOPLE.

Edited March 23, 2009 by shampooplanet
spelling mistake

[cerberusalert]

If no payments have been paid for a six year period the debt would be statute barred end of.

 

There are two routes you can take, the first would be to request a SAR which would cost £10 & First National Bank (which were part of the Abbey Group from 1995), would have 40 days to provide you with all the information they hold on you which would include the original agreement, payments made etc. This would allow you to determine whether there was indeed a six year gap between payments, whether there was an enforceable agreement in place and what unfair charges have been added which you could claim back.

 

The second is a CCA request which would take 12+2 days and cost £1. They would provide you with a 'true copy' of the original agreement from which you should be able to see whether it was enforceable.

[cerberusalert]

Statute Barred

 

A debt is considered Statute Barred if a creditor has not contacted a debtor for a period of 6 years and no action has been taken on the account.

 

Although the debt is still legally acknowledged as being owed, the creditor is not able to take any legal action against the debtor in order to recover the debt. It is considered unfair if a creditor or debt collector misleads the debtor into believing the debt is still legally recoverable. It is also considered an unfair practice if the creditor or debt collector press for payment after the debtor has stated they will not be paying the money owed. This could amount to harassment contrary to Section 40(1) of the Administration of Justice Act 1970.

[shampooplanet]

thank you for these responses, your advice is helpful

does the case law the DCA quotes make a difference to the situation, they claim that this case means the debt is excluded from being seen as statute barred, they claim the original loan from which the debt has come was a contract and therefore still enforceable.

thanks again for your help

[cerberusalert]

It may be better if this question were asked in Legal Issues - The Consumer Forums where our legal eagles dwell

 

I have a gut feeling that this 'contract' was created on US law and would have no relevance in the UK.

[shampooplanet]

thank you - will do what you suggest

[palomino]

I think you need another solicitor.

 

Paying a solicitor who 'isn't sure' and hasn't the gumption to find out seems somewhat pointless.

 

Are you able to post the DCA's wording up here to see if it clarifies what the particular issue is?

Have you made payments in the six year period prior to engaging your solicitor?

Have you acknowledged that you owe the debt in any correspondence in that six year period?

 

If not then it should be statute-barred unless the case they quote has some blindingly important judgment that overrides the Limitations Act.

 

If your solicitor can't locate the case (or can't be bothered) then maybe you could try the OFT yourself. I've generally found them helpful.

Edited March 23, 2009 by palomino
clarifiication

[The_Grumlin]

DCA quoted case law saying that it wasnt the case being First National Bank -v- Office of Fair Trading 2001 (or 2002).

 

This is a case for post judgement interest only applicable if a CCJ has been issued?

 

Do you have a CCJ against this alleged debt? If not then the case law is not applicable. As above your solicitor should have known this by reading the judgement.

 

If no CCJ then send a statute barred letter from the templates area to them, I think you may have a problem if you have made an offer to pay?

Edited March 23, 2009 by The_Grumlin
add more detail

[cerberusalert]

If no CCJ then send a statute barred letter from the templates area to them, I think you may have a problem if you have made an offer to pay?

 

There would be no problem if the debt was Statute Barred as it cannot be 'unbarred'.

[shampooplanet]

In the DCA letter relating to this caselaw they say (quote) we refer you to the case..... wherein it was decided that the creditor has the right to claim contractural interest after obtaining judgement. we would also point out that as the above numbered agreement is for 10 years the interest would have continuted to accrue up until 2008 therefore we are still within the time period to claim such interest (letter dated 29th Aug 08

according to the DCA a CCJ was issued but I wasnt informed of this, the last payment made by my ex husband was in May 2001 according to the documentation obtained by my solicitor. In credit reference checks over the last few years there has been no mention of a CCJ. I moved from the house where the debt relates to but had arranged for mail to be sent on to me. I have only had one subsequent address since then so didnt understand why I hadnt been contacted with regard to this debt before last August.

Im not trying to wilfully avoid paying this debt but Im very confused about what the legal situation is and whether the case law the DCA cites is sound. ?? any advice gratefully received

Edited March 23, 2009 by shampooplanet
spelling

[42man]

It sounds like the debt is statute barred....however if a CCJ was issued at a time when you weren't living at the previous address and you can prove this, then you WILL get the original CCJ set aside....you need to get the original judgement set aside - Removal of CCJ's - Step by step guide to the process - You can search for the CCJ here too - CCJs, court orders & fines - Search yourself and others - Trust Online

[shampooplanet]

thank you for this 42man, I will look at the links and follow your advice, does it still appear that the debt is statute barred despite the case law quoted by the DCA?

[The_Grumlin]

As previously posted the case quoted is about before and after judgement interest. It has NOTHING to do with statute barred/administration of justice etc. It was the OFT taking FNB to court regarding their contract containing a clause for post judgement interest.

Edited March 23, 2009 by The_Grumlin
Spelling and layout

[shampooplanet]

thanks the Grumlin, your comments are welcome, I have no knowledge of this area at all so it is baffling to say the least, my solicitor in his response to me, about the DCA quoting that case, stated that he thought the DCA were able to make an application to the court to enforce the previously made judgement based on their citing of this case. He assumed that this overrode any statute barred status

[cerberusalert]

This is the case that the DCA is referring to; OFT sues First National over HP loans - Business, News - The Independent

[The_Grumlin]

Yes it can be daunting at first, there will be some good advice posted on here start by following 42man's advice in his post.

 

Establish if there is a CCJ and go from there.

 

Don't take the anything said or sent to you by a DCA as being the truth.

[shampooplanet]

thanks cerebusalert, Ive read the article you reference.

can you shed any light on the statement made by the DCA " as the agreement is for 10 years the interest would have continued to accrue until 2008 therefore we are still within the time period to claim such interest, " this from a letter sent in august

2008 ?? the assumption my solicitor made was that this entitled them to take me back to court to "enforce the judgement"

[cerberusalert]

I cannot find the outcome of the above case, so it may be wise if you contacted the OFT to see what the resolution was. Which was heard from the 17th March 1999.

 

As The Grumlin has said, you cannot believe anything a DCA says, they misquote caselaw, leglislation and guidelines as they think fit.

[shampooplanet]

i received a message from the site saying my thread had been un approved. I cant find an explanation of this term on the website, please can someone tell me what it means. I dont know what Im supposed to do or indeed what Ive done thats remiss??

[cerberusalert]

Your thread on General Debt Issues - The Consumer Forums has been deleted because it is now on this group, that's all.

[42man]

Don't worry Shampoo, you're not in trouble i've merged your 3 threads into this one....it's so you don't have to update every thread with what is happening and your situation history can be seen...

[The_Grumlin]

The 10 years relates to the length of the agreement you may has signed with FNB (standard 120 months). I think they are claiming they are entitled to claim the whole 10 years of payments and interest plus any interest post judgement.

 

Would helpful if you could identify the DCA if possible, have they suggested a tomlin order by any chance?

 

The case First National Bank - v - Office of Fair Trading 2001 (2002) went to appeal and FNB won the right to apply post judgement interest, for those interested.

Edited March 23, 2009 by The_Grumlin
Adding additionaly info

[shampooplanet]

thanks for that - I thought Id committed some sort of misdemeanour!

[shampooplanet]

Grumlin, the DCA is Asset Link based in Caerphilly, a tomlin order hasnt been mentioned in any correspondence Ive had sight of and my solicitor hasnt mentioned this at all. is this something I should be aware of?

[heliosfa]

if you have no knowledge / documents of the CCJ they claim they have, can you contact your court to find out if they have a record of this judgement?

 

Perhaps you need to ask the DCA for the claim ref number?