UK debt being Chased in Australia

[thebrickie]

good on ya Wa

[expatdebtor]

I'm loving every exposition here...;)Its the last thing I read before bed, and the first thing I see when I wake up.... will you still talk to us now you are a big lottery winner WA?? lol!

[skippycreditdownunder]

It Just Keeps Getting Better !

 

I've only just got in and I guess most of you are already in bed. The meeting today took a little bit longer than I thought and the outcome was even better than I thought. I'm not going into detail on a forum that is monitored by Pie & Beer, but I'm really starting to enjoy this.

 

I don't normally drink during the day but made an exception and cracked open a bottle of bubbly. Not quite a Dom, but it tasted every bit as good.

 

Things went so well that I bought a lottery ticket on the way home. While I was in the newsagents I checked my lottery ticket from Tuesday and found out I had won the lottery. All I have to do now is figure how I'm going to spend my $13.60 .

wa newman... we should find a "secure" way to share your news...

 

have you a yahoo or a hotmail email you can pm me...?

 

my own situation is about a month or so behind yours...

[WA_Newman]

Beginners Guide to Statute Barred

 

The has been a lot of conflicting information about statute barred. The law varies in this area depending on type of debt and where the original agreement was signed. Some regions use the old English time of 6 years for unsecured debt, others are as little as 3 years. The following information is from nationaldebtline.co.uk:

 

UNSECURED CREDIT DEBTS

This would include credit cards, store cards,

bank and building society personal loans,

catalogues, finance company loans etc. You may

have had a debt with an ordinary unsecured

creditor that you have not heard about for a

very long time. You may have moved address or

thought the debt had been written off.

Out of the blue a letter arrives from the original

creditor or debt collection agency asking you to

make a payment.

You can argue that the creditor is out of time or

’statute barred’ from taking you to court for this

debt if:

• the creditor has not already obtained a

judgment against you;

and

• you or anyone else owing the money (if your

debt is in joint names) have not made a

payment on the debt during the last six years;

and

• you have not written to the creditor

admitting you owe the debt during the last six

years.

(Source: National Debt Line Fact Sheet 25, Liability for Debt and The Limitation Act)

Also supplied from the National Debt Line via email:

The Limitation Act 1980 sets out the rules on how long a creditor has to take action against you for a debt. Creditors normally have 6 years for unsecured credit debts. This includes credit cards and unsecured loans. After 6 years, if the creditor has not obtained a county court judgment (CCJ) against you, the debt will be ‘statute barred’. This is sometimes known as ‘time barred’. This means that the lender can no longer take you to court for the debt. When the debt is statute barred the creditor or any other agency should not pursue you for payment. However it does not mean that the debt no longer exists. It has not been ‘written off’.

 

A debt will only be statute barred if:

 

• you have not made a payment; or

• written to the creditor acknowledging the debt within the 6 year period.

A verbal acknowledgement will not count.

 

Section 5 of the limitation act 1980 shows that the time starts running from the date of the accrual of the ‘cause of action’.

“Cause of action” is not defined by law but case law states that “it has always been held that the statute runs from the earliest time at which an action can be brought” (Reeves v Butcher [1981] 2 QB 509)

Once a debt is statute barred it is always statute barred. You cannot restart the time again. If you make a payment to a statute barred debt you will not restart the time period but you will not be able to get the money back.

Given that most of us are discussing England & Wales Credit Card debt covered under the CCA (1974), statute barring comes in 6 years after the last payment you made, or acknowledged the debt in writing (verbal agreement doesn't count). If the credit card is in joint names it is the last payment or written acknowledgement of the debt by either of the debtors. Payments by third parties do not count.

 

I have read the Limitation Act 1980 and Reeves v Butcher [1981] and I can't find any reference to Pie & Beer being excluded from statute barring.

 

No that we have cleared up Statue Barred, and Assignment has already been covered, do you have anything else ceevee?

[WA_Newman]

The last sentence should begin, "Now that we have .......".

 

Typing one fingered while lying in bed isn't the best way but I was too tired last night and it will be another late night tonight. If you thought sailors could drink wait until you start drinking with politicians. There is a very good reason why the House of Commons has a 24-hour bar!

 

On a more serious note, even though I am enjoying this I know that many of you are highly stressed over the actions of Pie & Beer. For everyone on this forum there are hundreds of others in the same boat. Try not to stress too much and spread the word about PFF and the actions being taken against Pie & Beer. Some of these actions must remain private at the moment but not for much longer.

 

To the owners of this forum, a big thank you for assisting in the fight against the illegal activities of these con artists and standover merchants. I am sure Pie & Beer will try to shut down this thread, if they haven't already done so. These people prey on the weak and vulnerable, exploiting others fears and ignorance for their own personal gain. It is time to end their reign of terror.

[WA_Newman]

Just in case anyone has the least bit of doubt about jurisdiction on a credit agreement signed in England and Wales in the Consumer Credit Act (1974) just read the Act. To save time I have reproduced Section 141, 1(a) covering "any action taken by the creditor or owner to enforce a regulated agreement".

 

141.—(1) In England and Wales the county court shall have jurisdiction to hear and determine—

(a) any action by the creditor or owner to enforce a regulated agreement or any security relating to it

 

Source: Consumer Credit Act (1974) S141, 1(a)

 

There are similar sections cover Scotland and Northern Ireland.

 

To keep things simple. This means that any creditor or owner of the debt that wishes to take legal action to enforce the debt can only take action in the County Court of England & Wales.

 

It does not mean action can be taken in the Family Court. It does not mean action can be taken in a court in another UK country. And it certainly does not mean action can be taken in a Magistrates Court in WA, Australia.

 

So, we have covered Assignment, Statute Barred and Juristiction. If there is any other area that anyone feels needs clearing up just let me know. That even includes you ceevee.

 

[dannyboy660]

Life gets even better if your previous address was in Scotland because Statute Barred applies after 5 years.

 

The exception to this rule is secured debts, Mortgages being the most obvious, which do not become SB for 12 years.

 

Without an address in England or Wales a creditor will not be able to get a CCJ against you, unless they find a way to get one by default, i.e. using your previous address to issue summons and pretending they didn't know you had moved - but this is easily defended in most cases. Scotland has slightly different rules, but generally speaking they too will favour the consumer.

 

It sounds like you've got it all pretty much wrapped up. The CRA's in Oz sound like they are just as cr+p and untrustworthy as the ones in UK, but then again, it's an established fact that CRA's and DCA's are the same thing in all but name.

 

You need to find out names of people behind this company, before they all close ranks and deny responsibility.

 

Go get 'em.

[WA_Newman]

I know this is forum on UK originated debt. But for anyone interested in statue barred limitations for Australian originated debts ASIC have provided the following:

 

In Queensland, South Australia, Tasmania and Western Australia, a

limitation period can be re-started at any time—even if the original

limitation period has already expired. In contrast, in the Australian

Capital Territory, New South Wales and the Northern Territory, a

limitation period cannot be re-started once it expires.

Source: ASIC Report 55: Collecting Statute Barred Debts September 2005

 

For New South Wales the law goes even further and cancels the debt after six years. Everywhere else you still owe the money but you have a complete defense in law if the debt is statute barred. You lucky buggers in NT will have your debts statute barred after just 3 years.

 

NSW

 

The legislation in New South Wales goes further than legislation in other

 

jurisdictions. It specifically extinguishes the cause of action.

As a result,

after the limitation period expires, there will be no debt to request or

demand payment of.

Other states and territories

In all jurisdictions other than New South Wales, after the limitation

period expires, the legislation operates ‘to bar the remedy rather than the

right’.

This means that the debt remains owing, but the legislation limits

the enforcement options available to the creditor.

 

If court proceedings are started to recover a statute-barred debt, the

debtor will be entitled to file a defence pleading expiration of the

limitation period. This will be a complete defence to the claim, and if

successful, will prevent judgment being obtained against the debtor.

Source: ASIC Report 55: Collecting Statute Barred Debts September 2005

 

Now that I have you attention, you are probably wondering what legislation applies. The same ASIC report answers this question clearly.

 

Which legislation applies?

 

Given the inconsistencies between limitation regimes and the increased

centralisation of debt collection by both lenders and debt collectors, one

of the key issues in ensuring compliance is knowing which legislation

applies to what debts.

 

In 1993, each state and territory enacted legislation providing a nationally

consistent answer to this question. For example, section 5 of the

Victorian legislation

provides that:

If the substantive law of another place being another

State, a Territory or New Zealand, is to govern a claim

before a court of this State, a limitation law of that place

is to be regarded as part of that substantive law and

applied accordingly by the court.

 

This means, for example, that if a debt is governed by NSW legislation,

the

Limitation Act 1969 (NSW) will apply regardless of where legal

proceedings are commenced.

Several matters determine which state or territory’s legislation governs a

claim:

 

•

If the debt arises out of credit regulated by the Consumer Credit

Code, the relevant jurisdiction will be that in which the debtor

ordinarily resided when the credit contract was entered into.

•

If the debt is not regulated by the Consumer Credit Code, the relevant

jurisdiction will usually be that in which the contract was entered into.

 

•

In some cases, the contract itself may include a clause that constitutes an

agreement between the parties that the contract is subject to the laws of a

particular jurisdiction. However, such a clause will be ineffective if the

contract is regulated by the Consumer Credit Code.

 

Source: ASIC Report 55: Collecting Statute Barred Debts September 2005

The smart, or sober, ones out there read it correctly. In 1993 each state and territory enacted legislation to determine which legislation applied to limitations. Essentially jurisdiction will be that in which the debtor originally resided in when the credit contract was entered into. So even if you now live in Queensland, South Australia, Tasmania or beautiful Western Australia the legislation covering statute barring is the State legislation where you resided when you signed the credit agreement.

 

Given that WA Courts won't even allow Pie & Beer to restart the clock for statute barred ACT, NSW and NT debts. There is no prospect or precedent for restarting debts that were signed under the CCA (1974) that states that jurisdiction lies with the County Court of England & Wales.

 

Here is a link to this document http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/statute_barred_debts_report.pdf/$file/statute_barred_debts_report.pdf

 

Anyone who has paid a statute barred debt to a Debt Collection Agency should read up on Collection House v Taylor [2004]. Here is a brief summary,

 

The law in practice—

Collection House v Taylor

Summary of the facts

In 1992, Taylor borrowed money from a finance company to buy a car.

She subsequently defaulted, the car was repossessed and sold, but as the

sale resulted in a shortfall, Taylor remained in debt to the finance

company. Some years later, the finance company sold a tranche of aged

debt (including this one) to Collection House Ltd.

 

In early 2001, Taylor was contacted by an employee of Collection House,

who advised that he was calling from a legal firm acting on behalf of

Collection House. This was the first time she had been contacted about

the debt for many years. She was told that the amount of the debt was

$10,870, and was told that she was required to pay, preferably in full, and

that if satisfactory payment was not made, legal action might be an

option.

 

Taylor advised that she was unable to afford that amount, and she was

asked a series of questions about her financial situation. Taylor finally

agreed to pay $5,000, $4,500 of which she paid immediately by credit

card. She also advised that she would apply to increase her credit card

limit to allow for payment of the remaining $500.

 

The next morning, Taylor sought advice from a community agency, at

which point she became aware that the debt was statute-barred. She

contacted the person she had spoken with on the previous day, and

complained that he had not told her that the debt was statute-barred. His

response was that “the statute of limitations does not prevent [us] from

pursuing the debt”.

 

Court proceedings

In November 2002, Taylor instituted proceedings against Collection

House in the Victorian Civil and Administrative Tribunal, seeking

payment of $5,000 on the basis of unconscionable conduct and

misleading or deceptive conduct.

18 The Tribunal found in her favour, and

Collection House subsequently appealed to the Supreme Court.

The court found that the conduct was unconscionable. The following

passages from the judgment of Nettle J explain his reasoning:

I also reject the suggestion that there was no evidence that

the respondent was pressured to make the decision to pay. In

my opinion the fact of someone from a firm of lawyers “coldcalling”

a woman of the respondent’s socio-economic

standing at home at 6.30 in the evening, and interrogating

her as to her personal and financial circumstances while

insinuating that in the absence of her agreement to pay legal

proceedings may be instituted, is capable of constituting

pressure of a very high order. The fact that she bore the

burden of a deaf dependent child can only have exacerbated

her predicament.

 

In my view the fact that any impoverished debtor is willing to

pay $5,000 in settlement of a 10 year old statute-barred

finance company debt of $11,000 is probably sufficient

without more to raise in the mind of a reasonable person the

possibility that the debtor does not know of the limitation

period and might not have agreed to pay it if they had known.

In any event, the facts would be sufficient to cast upon the

beneficiary of the transaction the burden of establishing that

the transaction was fair, just and reasonable; and in this case

it was not. Once one adds to the equation the impecuniosity

and ignorance and perhaps also emotional difficulties of the

kind from which the respondent was known or believed to

suffer, the case becomes a clear one.

 

Due to its finding on the issue of unconscionable conduct, the court did

not make a final decision about whether the employee’s statement to

Taylor that Collection House was not prevented from pursuing the debt

was misleading or deceptive.

 

It did, however, refuse to accept the arguments put by Collection House

and noted that it was ‘not persuaded that it was not open to the Tribunal,

on the evidence which was before it, to find that the statement was

misleading or deceptive or likely to be so’.

 

Implications of the decision

The decision in

Collection House v Taylor shows that attempts to collect

statute-barred debts carry an increased risk of being considered

unreasonable or unlawful.

 

The decision also makes it clear that when the limitation period expires,

the rights and obligations of both the creditor (and its agents) and the

debtor are materially altered.

 

Specifically, the decision supports the following propositions:

 

•

The fact that a debtor makes a payment for a statute-barred debt may

be sufficient in itself to suggest that the transaction was not fair, just

or reasonable.

 

•

Where that is the case, the evidentiary burden lies on the creditor/debt

collector to prove that the payment was in fact fair, just and

reasonable.

Response by Collection House

Collection House responded to the court’s decision by making a public

announcement that it had:

 

•

decided in 2002 that it would no longer buy ‘old debt’ ledgers;

•

taken steps in January 2003 to ensure that it did not purchase statutebarred

debts (this included obtaining a warranty from clients and

vendors that purchased debt portfolios did not contain statute-barred

debts, and returning any debts subsequently found to be statutebarred

to those clients or vendors); and

 

•

brought forward a decision to end collection activity on any statutebarred

debts remaining on its ledgers that pre-dated that policy

 

Source: ASIC Report 55: Collecting Statute Barred Debts September 2005

Do the actions of Collection House sound like another company we all love? If you have paid a statute barred bebt to a DCA after being contacted by them this could be your lucky day.

Edited November 28, 2009 by WA_Newman

[WA_Newman]

I need a drink after that post!

 

The short version is that the relevant legislation is the place where the original credit agreement was signed.

 

The key lesson is that if you are going to do a runner and not pay your credit cards, make sure you are residing in the Northern Territory when you sign the credit agreement. You then only have to take a three year holiday.

[seevee]

Thanks wa Newman. Very informative. One question you might know the answer to:

 

if a ccj was filed I believe that it can be cleared if you were not residing in the uk at the time. Do you know if this is right?

[skippycreditdownunder]

a person who is the subject of a ccj can apply to the court to have that judgement set aside if they were not ordinarily resident in the uk at the time of judgement.

 

for a pom in australia that is easy with pass port stamps etc... so i would contend that their application would be very highly likely to succeed.

[WA_Newman]

Skippy is spot on. Contact nationaldebtline.co.uk for advice on how to do it. Non-UK residence is relatively easy to prove. The County Court where your CCJ was issued will set it aside. Not quite sure of the law but its the one that says defendents have the right to present a defence, which can't be done if you are non-resident.

 

Depending on your individual circumstances it may be beneficial to wait until the debt is statute barred before having the CCJ set aside. With a CCJ in place it is extremely unlikely a DCA will seek a second one. Simply wait until the debt is statute barred then have it set aside. UK debts can't be un-statute barred.

 

If a creditor files County Court papers and obtains a CCJ knowing you are non-resident, the s**t hits the fan. This is a serious offence. Difficult to prove though.

[cerberusalert]

Even if they had obtained a CCJ in the UK, if they haven't taken enforcement action within six years they would then have to apply to the court for permission to do so & show very good reason why & permission is very rarely granted. Obviously for the reasons previously stated any such application could be defended as the CCJ shouldn't have been allowed in the first place.

[dodgydebt]

Hi all

 

Fellow PFF here. WA newman, well what a wealth of knowledge you are. I am so sorry you were the one burdened with legal bills proving what we all know to be true. Having gone through this whilst becoming a new mother I can say which belive me is stressful enough, if you couple that with my 75 year old mother being harrassed on my behalf (even though Pie and Beer had all of my contact details and she is in another state), a black mark against my inpeccable credit rating for me and my business for the past 8mths and now having a writ and summons notation on my credit file however not being served you can rest assured I will be not only fiercly defending this claim but also counter suing for all the damages I can muster, defamation, stress, pain and suffering. I think what you have done Pie and Beer is nothing short of pure extortion. You knew these were unenforceable and in my case I had already paid off a debt you claimed to own by the same company a year ago (which I will be suing to have repaid to me) and yet you push on. Added to this I too have paid for lengthy legal advice. Serve me I dare you, I am at home most days dealing with my new child and we would all like to see you in court! You should be shut down and your directors should face the full force of the law for attempting such reprehensible actions. This has been a heartache and waste of all of our time all for a cheap money grab. I shall try and respect you when you ask me if I have my own bags when I see you next bagging my groceries at woolies. Either that or send you photo's of the outside world when you are on the inside.

 

Seevee, we don't trust you because you're not informed enough to make comment. Anyone who has done any home work or paid others to do so know you are wrong. I hope this is not your profession as you quite clearly suck at it. If you are not directly involved and are merely 'poking a rather large bear' i would urge you to find other means of entertainment, although my fellow PFF's are enjoying shooting your arguments down. If you are a mere minion for the company in question although I respect your passion for your position, I would urge you to take note of the information presented to you and ask you to reconsider your chosen profession. There are far better and more honest ways to earn a living and believe us when we say their's is coming and you really don't want to get caught in the crossfire.

 

Who knows maybe I will meet you in court.

[seevee]

Seevee, we don't trust you because you're not informed enough to make comment. Anyone who has done any home work or paid others to do so know you are wrong. I hope this is not your profession as you quite clearly suck at it. If you are not directly involved and are merely 'poking a rather large bear' i would urge you to find other means of entertainment, although my fellow PFF's are enjoying shooting your arguments down. If you are a mere minion for the company in question although I respect your passion for your position, I would urge you to take note of the information presented to you and ask you to reconsider your chosen profession. There are far better and more honest ways to earn a living and believe us when we say their's is coming and you really don't want to get caught in the crossfire.

 

Who knows maybe I will meet you in court.

 

Dodgy debt lighten up...I thought participating in these forums is one way you become informed. The battle is just starting for me...all I'm looking for is some insight from others who have come before me. Your abuse and your false accusations are unwarranted, unfair and unfounded. I never claimed to be an expert, I was just asking questions pertinent to my situation.

 

As for getting on your moral high-horse. I find it abhorrent that you ask for compassion for your own situation but accuse Pie & Beer call centre operators of verging on moral bankruptcy without knowing their situation.

Edited November 29, 2009 by seevee

[babybear39]

Dodgy debt lighten up...I thought participating in these forums is one way you become informed. The battle is just starting for me...all I'm looking for is some insight from others who have come before me. Your abuse and your false accusations are unwarranted, unfair and unfounded. I never claimed to be an expert, I was just asking questions pertinent to my situation.

 

As for getting on your moral high-horse. I find it abhorrent that you ask for compassion for your own situation but accuse Pie & Beer call centre operators of verging on moral bankruptcy without knowing their situation.

 

Which one of you is an employee of this this said company?

[ozzyboy]

Which one of you is an employee of this this said company?

 

Now there's a question!

 

Dodgydebt most certainly isn't but as yet, and despite numerous opportunities, nay challenges, seevee has yet to state his / her position.

 

Huffy protestations that they are "participating in these forums" to "become informed" doesn't really answer the question. Sounds more like DD hit a nerve.

 

So...once and for all, seevee are you connected in any way to Pie and Beer and /or their legal team and if so in what capacity.

 

Now be honest ... any naughty fibs will not only make baby Jesus cry but will also come back and probably bite you in the **edit**

 

For the record, for those that don't know me - I'm neither PFF nor DCA. I'm just happy to be in Australia.

Edited November 29, 2009 by citizenB

[WA_Newman]

I think we should all cut ceevee some slack.

 

"As for getting on your moral high-horse. I find it abhorrent that you ask for compassion for your own situation but accuse Pie & Beer call centre operators of verging on moral bankruptcy without knowing their situation."

 

We don't know about your situation. Was it the only job you could get? Share with us your concerns about how you work and I'm sure we will all look at you in a different light. What do they make you do? I know you are forced to sign the threatening letters in your own name because I've done some background checks on the young lady who threatened my wife during a phone call. All my actions were perfectly legal. Having a private detective as a client is useful sometimes.

[2ltr16valve]

I think we should all cut ceevee some slack.

 

"As for getting on your moral high-horse. I find it abhorrent that you ask for compassion for your own situation but accuse Pie & Beer call centre operators of verging on moral bankruptcy without knowing their situation."

 

We don't know about your situation. Was it the only job you could get? Share with us your concerns about how you work and I'm sure we will all look at you in a different light. What do they make you do? I know you are forced to sign the threatening letters in your own name because I've done some background checks on the young lady who threatened my wife during a phone call. All my actions were perfectly legal. Having a private detective as a client is useful sometimes.

 

 

Simple, Do you ? or Do you not ? work for/have any professional link with Pie & Beer ?

[ozzyboy]

Tick Tock..

Tick Tock....

Tick Tock......

Diddly-dum...

Diddly-dum......

Boooo........

...and that would be countdown.

[ozzyboy]

.....so let's see what you've come up with.

[expatdebtor]

It's oh so quiet.... I think the lack of response says it all?

[citizenB]

Which one of you is an employee of this this said company?

 

Now there's a question!

 

Dodgydebt most certainly isn't but as yet, and despite numerous opportunities, nay challenges, seevee has yet to state his / her position.

 

Huffy protestations that they are "participating in these forums" to "become informed" doesn't really answer the question. Sounds more like DD hit a nerve.

 

So...once and for all, seevee are you connected in any way to Pie and Beer and /or their legal team and if so in what capacity.

 

Now be honest ... any naughty fibs will not only make baby Jesus cry but will also come back and probably bite you in the **edit**

 

For the record, for those that don't know me - I'm neither PFF nor DCA. I'm just happy to be in Australia.

 

Play nicely people, virtual fisticuffs not allowed:D

[Bodgit]

I think I'll have a 'P' please Seevee. followed by an Eye and ear.

 

I do believe we have a winner folks.

Edited November 29, 2009 by Bodgit

[ozzyboy]

Fair do's site team.

Point taken...My tongue is, and will remain, well and truly bitten!