Asset Recoveries UK hassling re mortgage shortfall from 2000- ** Statute barred ** :)

[PriorityOne]

I've only read through this thread quickly, so please forgive me for missing anything...

 

Firstly, these people have no "clients". This word is just bandied about because it makes them sound like they have all kinds of legal connections, can throw you in jail, chop your fingers off and so on. Most DCAs throw this word around and it's normally the first thing I squash when writing back to them.... because in most cases (like here) they've bought the debt and the original creditor is no longer in the picture as a "client" or anything else...

 

Although it's an old thread, I was involved in an issue (by Count) some time ago and the template letters on there may be useful to you. I'll try and find it to post a link on here for you.

 

Personally, I wouldn't be writing "Without Prejudice" on anything.... and have never done so.

 

Edited February 6, 2010 by PriorityOne

[PriorityOne]

County Court Summons - Mortgage Shortfall - Advice Needed Urgently, Please Help !!!

 

Link is not working.... not sure why!! Grrrrr!!!!

[PriorityOne]

oh boy, now i am getting more confused.

 

 

Ok.... list your confusions one by one.... and we'll try to help. It is a minefield, I agree..

 

[PriorityOne]

Hi P1

 

I think I have to disagree on the client/debt owner point.

 

ARUK is acting 'on behalf of' Phoenix who will 'own' the debt - although the extent of that ownership will also be in question. The 'Deed of Assignment' will also be interesting (although I doubt anyone will get to see it)

 

Phoenix bought the debt and Aruk are the clowns they have chasing, yes.... but the original creditor will have no interest in it after an Absolute Assignment. That's the point I was trying to make....

 

The original credior is not the "client" because it's been sold. Also, the liklihood is, that Aruk are part of the same outfit anyway, which tends to be the case.

 

[PriorityOne]

My confusions are that I do not understand all of the big words and comments, I am not ignorant but I just dont understand it. Basically I just dont know what to write back to them if anything.

 

Ok... take a breath.

 

Have a slow read of the thread I suggested. I went through a shortfall debt myself around 11 years ago now, so can appreciate what this must be doing to you.

[PriorityOne]

Within the thread I posted up, there are a number of letters which specify the information you need. There will have been heaps of unlawful charges added on to any alleged balance they're going after anyway... and once they know you're aware of this (among other things).... they should start to back down and tread a little more carefully around you.

 

Do not speak to them on the 'phone though.... it's a golden rule.

 

[PriorityOne]

I'm trying not to confuse things here BUT it would seem that because of the way Phoenix operates the assignments are only ever equitable - sort of changes things

 

No-one on CAG has, as yet, had a single piece of paper from Phoenix ......

Claims are issued through solicitors like Bryan Carter so I think that says a lot about the way they litigate.

 

I realise that this aspect of it is *very* confusing to the OP

BUT it is soooo important - the SAR *must* go to Luxembourg that is the data controller as registered.

 

Point taken.... but due to the timescales involved, I'd be very surprised if the original creditor still had any legal interest in this.

 

[PriorityOne]

For info

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/242653-have-you-lost-phoenix.html

 

I'll shut up now

 

All I am trying to say is that before you get involved with amounts owing and how it got the that. IMO you need to confirm who, if anyone, actually legally owns the debt now.

 

Very true....

 

Irate, send the SAR to Phoenix by rec. delivery. Phoenix would need to legally own the debt before they could issue proceedings against you in their own name. If your original creditor still owned the debt, they would be the only ones who could take legal action against you.... so this info. will tell you who you need to deal with.

 

Once this has been established, we can then bosh the other muppets out of the picture... Still think Phoenix have bought it..... but we'll see

[PriorityOne]

I wouldn't make any comments about where you get your info. from... it's none of their business.

 

Have nothing further to do with Aruk now and if they contact you again (in writing) inform them at that point that a SAR has been sent to their "clients" and that you will not be corresponding further until your legal request has been complied with.... by rec. delivery.

 

If they 'phone.... hang up.

 

[PriorityOne]

Will I use the address gh has posted on here or will I send another letter to aruk asking for phoenix address.

 

Have no further contact with Aruk.... send to the address posted up on here. If Aruk contact you again (in writing), deal with them at that point.... as stated above.

 

We will help you.... don't worry.... but one step at a time.

 

[PriorityOne]

I'll see if I can dig out a SAR that's more applicable to mortgage shortfalls....

[PriorityOne]

Ok... this letter is an adaptation for one I did for someone else.... but it gives you some idea of what we're after here. Send the SAR as normal, but I would send this one alongside it... posted seperately... by rec. delivery.

 

Dear xxxxx

 

Your Ref : xxxx

 

I do not acknowledge any debt to your company or to any "agents" you may have instructed to represent you.

 

A legal SAR was sent to your "agents" (Aruk) on xx/xx/xx and to date, they have failed to comply. Therefore please take note that I will have no further dealings with your "agents" until such times as they are able to substantiate their legal right to my personal information.

 

An additional SAR has now been sent to your company (Phoenix....) under seperate cover and in addition to any/all information that have on record pertaining to myself, I am making a particular request for the following :

 

A copy of a any Default Notice issued against my name;

 

Full details of how any alleged arrears were calculated and the date they commenced;

 

Full details pertaining to any Possession Order and when it was granted;

 

Full details of all valuations obtained for the property prior to its sale;

 

Full details pertaining to the alleged sale price, including a full breakdown of how/why this figure was accepted.

 

A full breakdown of all charges applied to the account, including all “maintenance” charges and/or otherwise, penalty fees, litigation charges and so on, including all charges/fees that may have been applied by yourselves and the justification for these.

 

A full breakdown of all interest applied for the entire duration of the account,

 

Full details/information pertaining to the sale of the property; not limited to but including, full details of the precise manner in which the property was sold in line with regulations set down by the FSA; i.e, copies and/or particulars of all adverts placed, where they were placed, dates they were placed and so on.

 

Full details of any claims made against the Mortgage Indemnity Insurance or, if no claim was made, your written confirmation by return.

 

If you are indeed acting on behalf of the original lender yourself (under Equitable Assignment), then I would assume this information to already be in your possession. If you are not acting on behalf of the original lender however, then I will require your company to produce documentary evidence to substantiate the following:

 

The date upon which this alleged account was sold to yourselves by Absolute Assignment;

 

A copy of the alleged Deed of Assignment;

 

The date upon which a Notice of Assignment was served upon myself, including a copy of the alleged Notice;

 

A full breakdown of all transactional charges/fees applied to the alleged account following its sale to yourselves, including a written explanation of the precise nature of these charges.

 

Since I have had no contact from the (original lender) for approx. xx years, I remain confused over the precise nature of their/your claim and as such, also require a full written explanation pertaining to the precise nature of your/their claim after such a long period of time and, upon what legal basis you have been instructed to pursue this matter now under Equitable Assignment, along with the documentary evidence detailed above.

 

Please note that under English law, recovery on mortgage shortfall interest is frozen after six years and I will expect any records that you hold to reflect this. If your records do not reflect this, then I will require a written explanation as to the reason.

 

Until such times as I am in possession of all transactional data and/or otherwise, I will not be entering into any further discussions regarding income/expenditure and/or payment plans with anyone. Any further calls from any company that you may have instructed to contact me will now be duly logged by time and date before being terminated by myself. Any unauthorised visits to my home will be reported to the police.

 

I trust that the contents of this letter are self-explanatory. If you are unable to supply this data however, then I require written confirmation by return within the next 14 days.

 

Should you decide to pursue this matter without addressing your full obligations under The Data Protection Act, 1998 then I shall seek a Court order obliging your full compliance, together with damages at the discretion of the Court.

 

Yours faithfully,

Edited February 6, 2010 by PriorityOne

[PriorityOne]

B*gger!!

 

Keep hold of that info though.... print it off for your own records.

 

Looks like we're gonna need a different address.... there must be one on one of the other threads. Hopefully someone will point us in the right direction later on today. If not, I'll have to do some digging around...

[PriorityOne]

 

When the DCA writes again just tell them that you have tried to serve a statutory notice on Phoenix at the address registered with the ICO, and that you are now making a formal complaint to the ICO

 

Personally, I wouldn't wait for Aruk to write.... I'd write to them as a formal COMPLAINT (which they'll have to address) and state what you're now going to do by rec. delivery.

 

They'll need to be very careful how they answer you from now on... Absolutely NO phone contact though!

[PriorityOne]

Make an appointment with a solicitor post haste;

National debtline will provide you with names of one or two that specialises in this area of law.

CAB, can also offer assistance.

 

Dependant on your circumstance, you may be able to obtain assistance from the Legal Services Commission (LSC)

 

Do not enter into any correspondence or conversation with the parties involved, until you have saught legal advice and assistance.

 

Sorry AC.... but I don't agree with you over this. A solicitor is likely to confuse the issue further right now. OP can establish what she needs to know herself without farming this one out to someone else, IMO.... As for CAB, I've told my local branch things they've never even heard of before re. debt advice.

 

I was involved in a similar situation some time ago and advice received from a solicitor and CAB at the time was cack to say the least.... so I handled it alone.... with great results.

 

I will draft a letter of complaint to Aruk later this evening and post it up.

 

Edited February 16, 2010 by PriorityOne
typo

[PriorityOne]

Ok... have re-read the thread and am pretty sure Aruk have bought this one in the hope of getting money from you prior to it becoming stat-barred. Not sure what role Phoenix have in all of this at the moment, but as it is Aruk who are writing to you, then it is Aruk you should be dealing with for the time being at least. From what I've read so far, Phoenix have never made contact with you. Is that correct?

 

You've said that a SAR already went to Aruk some time ago? They replied with a letter that you've since deleted from the thread, but under a SAR.... they should provide you with everything that they have on you... but don't seem to have anything, as I see it.

 

So.... I've drafted up a letter of complaint that needs to go to Aruk by rec. delivery. As this has been put together rather quickly, I'd be grateful for any comments before you send it off..... but I think all of your points have been covered and the ball is now in their court.

 

 

Dear xxxxx

 

Your Ref xxxxxx

 

COMPLAINT

 

I do not acknowledge any debt to your company or to any company or “client” who you claim to represent. I refer to your most recent correspondence; the content of which has raised a number of concerns.

 

Firstly, your company has failed to establish any legal right to pursue me for payment towards an alleged debt, either by Equitable or Absolute Assignment and until such times as I am satisfied that I owe anybody any money at all, no payments will be forthcoming to anyone. I therefore require a full, written explanation as to the basis of your claim for payment.

 

Secondly, you appear to have used the threat of court proceedings to coerce me into providing you with information that you have no legal right to receive, yet as already stated, have been unable to furnish me with the requested documentation under my SAR. Notwithstanding the content of this letter, you now have X amount of time within which to comply.

 

As I am sure you are aware, your threat of legal action puts you in breach of the Consumer Protection from Unfair Trading Regulations 2008 and the Office of Fair Trading Guidance on debt collection. I therefore require a full, written explanation as to your reasoning behind these threats. I also require full, written details of the type of assignment that you claim to have; Equitable or Absolute; together with the date upon which you claim this took place and any Notice of Assignment that you sent out prior to making contact with me.

 

Thirdly, I am concerned with your apparent anxiety in urging for a written acknowledgement from me in relation to the ambiguous Mortgage Transaction History that you claim to have in your possession, but which has never materialized in any of your correspondence. I therefore require a full, written explanation as to where this document originated from, together with a full breakdown of the alleged balance that you claim to be outstanding.

 

Fourthly, should it be your intention to carry out your additional threat of a doorstep visit to my home, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I 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 me on my property without express permission; the postman and people asking for directions etc (Armstrong v Sheppard & Short Ltd [1959] 2 QB 384. per Lord Evershed M.R.).

 

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

 

Notwithstanding the above, at no time have I consented to the processing by you of my data in any way that would breach The Data Protection Act, 1998. If this alleged debt had been legally assigned to you, then any personal data held in the Mortgage Agreement allegedly entered into may only have been passed to you provided that my (the borrower's) authority was obtained in that Agreement. As this is not the case however, then I must point out that you have certainly not requested and I have not given any permission for my personal data to be passed/shared/received by you at all.

 

You may therefore consider this letter a statutory notice under Section 10 of the Data Protection Act, 1998 to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies (if applicable). Should you refuse to comply, you must within 14 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a legal right, you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

I look forward to a favourable response within 14 days of the date of this letter; informing me that on this occasion you have made a genuine mistake and that your files are now closed. Failure to respond favourably however, will result in me reporting this matter to Trading Standards, Office of Fair Trading, The Financial Crimes Branch of HM Treasury and any other authorities as I see fit.

 

Please also note that any further attempts to contact me by telephone will be duly logged by time and date before being rejected.

 

Yours faithfully,

 

Edited February 16, 2010 by PriorityOne

[PriorityOne]

Depends on the solicitor.

 

In any event, the most important issue is that the debt must NOT be acknowledged by word or payment.

 

AC... what advice do you think a solicitor could give that can't be given on here?

[PriorityOne]

You're doing well IW.... just take one step at a time and we'll get there with this. Aruk don't sound like the brightest sparks in the box anyway, so.... we have an advantage already

 

[PriorityOne]

Phoenix has told me that its only place of business is in Luxembourg, so it need not register in the UK. However, it did give a British address to the Office of Fair Trading, which issued its debt collector's licence.

 

And it did give a British address to the Information Commissioner, which registered it for data protection purposes.

 

That address, in Cobham, Surrey, belongs to Cargill plc, which describes itself as 'an international producer and marketer of food, agricultural, financial and industrial products and services'.

 

Cargill and Phoenix are certainly connected. The OFT's contact at Phoenix is an in-house lawyer at Cargill. Perhaps Companies House should take a close look at Phoenix and see whether, since it wishes to appear British, it should be registered in Britain, too.

 

Inland Revenue may be interested as well AC....

[PriorityOne]

 

I still maintain the first thing that needs to happen is a letter from Phoenix confirming ARUK are authorised to act for them,without this ARUK cant go anywhere and remember Phoenix also need to write to you,as well,and this does not appear to happen.I have written to ICO and OFT complaining about both companies,as usual it takes Eons to get a reply,,,,,,,,,,,,,,FS

 

Lots of things are supposed to happen.... but rarely do. Aruk are simply hoping that people know no better and will pay up on the mention of "clients" and "legal proceedings"

 

Aruk are not interested in doing things properly; only in making a fast buck. Once they realise that IW is not going to cave in, they will hopefully just b*gger off..... but time will tell.

 

[PriorityOne]

You won't get much out of ARUK, they are just acting as the collector.

 

Then they'll need to pass it back and b*gger off then....

[PriorityOne]

If it goes back to the OC, then it's not an Absolute Assignment.....

[PriorityOne]

The majority of assignments have a put-back clause written in!

 

Mine haven't.... and there's not way of telling what's gone on with this one at the moment until something/anything/nothing comes back from Aruk.

[PriorityOne]

this is starting to confuse me again

 

 

I'm not surprised...

 

Your SAR went to Aruk and Aruk have so far failed to comply. Therefore the onus is on Aruk (and no-one else for the time being) to establish any legal right to collect payments from you; either on their own behalf or on behalf of anyone else.

 

Personally, I wouldn't worry about sending a SAR to anyone else right now.... because no-one else is chasing you for payment at the moment AND... there is absolutely no point in prodding the original creditor for information so close to stat-barred status anyway. I realise that a SAR went to Phoenix, but when it comes back with no known address stamped on it or whatever.... leave it (for now at least). You have proof that you've tried to get to the bottome of this situation and have been blocked from doing so by Aruk failing to give you information upon request.

 

If/when Aruk wake up to the fact that you're no pushover and pass the account back to whoever.... then we can deal with whoever may have it then.

 

This needs to be handled one step at at time or the whole situation could swallow you up.

[PriorityOne]

just a rundown of what I have done up to now. Please tell me if I have done right up to now or if I have missed anything and any further suggestions. I sent access request to ARUK 30th jan. Got letter back stating i am just copying letters off internet and that I should take debts more seriously and have 7 days to return breakdown of finances or someone will call to my door. Then 8th february sent access request to phoenix lux via tracking but post couldnt deliver it, left card for them to collect. Sent letter of complaint to ARUK yesterday. that sums up what I have done up to now. I have got the letters recieved in my PC if you want me to I can put them back up for you to look at. many thanks.

 

That's absolutely great.... you've done all the right things, so please don't worry.

 

Just make sure you keep hold of everything received and keep a copy of everything received.... and all your rec. delivery slips. It's much easier to get a file so you know what's been sent/received and when. Tesco's do some good ones on the cheap :grin:.... I'd have been lost without mine!