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

[irate-wife]

Ok... that does tie in with what you've said as well. If they have a Deed of Assignment, then it implies that the debt's been sold by Absolute Assignment. I can't see how they'd have a D of A unless they'd bought it in their own right... or, are acting on behalf of someone else (Phoenix) who bought it... in which case, Aruk won't be able to take court action themselves anyway.

 

Looks like they might have a job producing the kind of paperwork we want to see in any case...

This is the paragraph from the letter

 

The outstanding debt of £xxxxxxx representing the balance of the shortfall loss on the sale of the mortgaged property, was assigned to our client together with all rights vested in TMT under the documents giving rise to the shortfall debt, persuant to a Deed of Assignment dated X August 2007, notice of which assignment was given to you as required by section 136 Law of Property Act 1925, and accordingly our client now seeks repayment of all monies due and owing.

[irate-wife]

they then go on to say in another paragraph that it wont become statute barred until June 2011.

[humbleman]

When was the last payment you made to them.

[irate-wife]

I am sorry humbleman I cant remember. My husband and I had split, I had 3 children to bring up and my head was all over the place.

[PriorityOne]

This is the paragraph from the letter

 

The outstanding debt of £xxxxxxx representing the balance of the shortfall loss on the sale of the mortgaged property, was assigned to our client together with all rights vested in TMT under the documents giving rise to the shortfall debt, persuant to a Deed of Assignment dated X August 2007, notice of which assignment was given to you as required by section 136 Law of Property Act 1925, and accordingly our client now seeks repayment of all monies due and owing.

 

Sold by Absolute Assignment (under the Law of Property Act, 1925). So their "client" does own it.... and it's got nothing to do with your original mortgage provider at all.

 

They still have to prove their claim to collect though... and so far, haven't produced anything under a SAR.

[irate-wife]

so p1, is it not looking good

[irate-wife]

you know what makes me sick is the fact that you go through a bad time at some point in your life. You struggle for years with no help from anyone and you just start to get yourself back on your feet and lowlife people just want to take your happiness away from you. I have no debt, I live in rented accomodation. I have a job now cos all my kids up and gone. I am just starting to put a small amount away each week from my wages in the hope of a holiday this year. (only to local caravan park mind, curtisy of the sun £9.50 holidays) and this lands. No wonder people are more stressed now than ever before.

[PriorityOne]

so p1, is it not looking good

 

The stat-barred angle is a bit iffy, IMO.... but until you get some kind of confirmation re. dates from whoever's claiming the "right" to pursue you, we won't know anything for sure and/or which way to go.

[irate-wife]

ok all, I got to get away from my pc for a while, feeling a bit low. Thanks very much for advise.

[PriorityOne]

you know what makes me sick is the fact that you go through a bad time at some point in your life. You struggle for years with no help from anyone and you just start to get yourself back on your feet and lowlife people just want to take your happiness away from you. I have no debt, I live in rented accomodation. I have a job now cos all my kids up and gone. I am just starting to put a small amount away each week from my wages in the hope of a holiday this year. (only to local caravan park mind, curtisy of the sun £9.50 holidays) and this lands. No wonder people are more stressed now than ever before.

 

Please try not to lose heart with all this IW.... I realise that it's overwhelming at times.

 

Reality check though.... you're in rented accomodation now with no assets. What's the worst they can do to you? There are no debtors' jails, they cannot torture you, they cannot remove items from your home because they're not bailiffs. If... and I say if.... this was to go to court and you were ordered to pay an amount towards a debt, it would be based upon what you could genuinely afford and no more.

 

My own situation was a lot more precarious than yours. Mine was a joint liability shortfall debt of £52K, which I got them to cut in half to £26K (not that it helped, but I was angry about paying for the ex because he was a violent man). What they didn't realise is that I'd gone on to buy another property by the time they made contact but the shortfall debt was not stat-barred. Mine was still with the original lender and because I was on Benefits at the time, they accepted £5 a month for a period of time before accepting a F&F settlement of £500 (five hundred pounds); an incredibly low F&F, I know.... and without ever going to court.

 

They could have done me a lot of damage. I knew it and the solicitor I saw knew it.... so I handled it alone. There are ways forward with this.... but you need to take one step at a time. There really is nothing much they can do to you though...

 

These people are not bailiffs, as already said. They are debt collectors. Debt collectors are not bailiffs. The only time bailiffs get involved is after a CCJ and Aruk/Phoenix are nowhere near getting a CCJ on you for this. If they had one, they would have said so.

 

[gh2008]

so p1, is it not looking good

 

I don't see what's changed :?

 

you have got a letter from a 'random company' purporting to represent a 'random foreign company' trying without any evidence to get money out of you.

 

As soon as ARUK's 40 days are up get your complaint in - as soon as the Phoenix letter comes back - again complain.

 

From what I have read this evening the statute barred timer starts from when you default on your payments - that has been accepted (and there is precedent for it) as being 2 months payments missed.

 

I will dig out the reference and the cases - should have bookmarked it when I read it

[angry cat]

Looks like this is statute barred;

the onus is on them to prove that the alleged debt is not, statute barred.

 

IMO, there is much of interest here and;

sorry guys but this case is reminiscent of matters relating to National Home Loans and then GMAC (who were fined).

 

IW, please bear in mind that ARUK/phoenix will spin any yarn, in order to make you believe that they are right and you, are wrong.

 

At the end of the day, they will have to prove it!

[MandM]

: The question of when the mortgage debt actually became due has been argued at some length in the courts. The starting point is that the mortgage debt became due at the point when the lender was first entitled to repossess.

In most cases that will be the first time in the history of the mortgage that the borrower was in arrears for the equivalent of two monthly instalments. This means that the 12 year period may have started many years before the property was actually sold."

 

Wow, that's a little gem AC. If it is at the point of 'entitlement' that could be a year or two knocked off the SB period for some.

 

Are you sure on your dates IW bearing in mind what it says above.

 

M

 

PS reading with interest IW

[angry cat]

As you all know, I loathe the: ****!

 

Looks like it could be Phoenix/ARUK are just about to be gently placed into a pittsburgh cauldron, nicely filled with boiling oil:

 

by IW: "And the price it was sold for was a silly price, no where near the market value."

 

To reiterate, GMAC were fined (securitization mortgage issues) for not treating customers fairly, as were kensington etc...mortgage trust?

[angry cat]

 

Wow, that's a little gem AC. If it is at the point of 'entitlement' that could be a year or two knocked off the SB period for some.

 

Are you sure on your dates IW bearing in mind what it says above.

 

M

 

PS reading with interest IW

 

Oh Yes!

 

:

"the mortgage debt became due at the point when the lender was first entitled to repossess."

[MandM]

"And the price it was sold for was a silly price, no where near the market value."

And this can work very well. The house I lost in the last recession went the same way - on the cheap! I used exactly that argument against Eversheds/Abbey and it worked for me.

[PriorityOne]

 

:

"the mortgage debt became due at the point when the lender was first entitled to repossess."

 

Yes.... providing there was no written acknowledgement in the meantime. IW has said that she told then to repossess in May 2000.... only 10 years ago.

[MandM]

"the mortgage debt became due at the point when the lender was first entitled to repossess.

Exactly - 2 full months in arrears.

[gh2008]

Yes.... providing there was no written acknowledgement in the meantime. IW has said that she told then to repossess in May 2000.... only 10 years ago.

 

Where do you get that from P1 - that the clock is 'restarted' in these cases?

[gh2008]

[url=http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1980/cukpga_19800058_en_3#pt1-pb10-l1g25][/url]http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1980/cukpga_19800058_en_3#pt1-pb10-l1g25

 

20 Time limit for actions to recover money secured by a mortgage or charge or to recover proceeds of the sale of land

 

(1)No action shall be brought to recover—

(a)any principal sum of money secured by a mortgage or other charge on property (whether real or personal); or

(b)proceeds of the sale of land;

after the expiration of twelve years from the date on which the right to receive the money accrued.

Edited February 18, 2010 by gh2008
got rid of teh stupid autolinker Grrrr

[PriorityOne]

Are you saying that any written acknowledgement after "the right to receive the money accrued" has no relevance?

[gh2008]

Well I was just quoting the Law

 

I've been reading through some judgements - they all say the same thing -

"twelve years from the date on which the right to receive the money accrued"

 

In none of the cases is there anything about acknowledgement. The Limitation Act actually singles out mortgage as special contracts and makes very specific points about them.

[PriorityOne]

Well I was just quoting the Law

 

I've been reading through some judgements - they all say the same thing -

"twelve years from the date on which the right to receive the money accrued"

 

In none of the cases is there anything about acknowledgement. The Limitation Act actually singles out mortgage as special contracts and makes very specific points about them.

 

Unfortunately, there is. I'll post it up in a bit...

[gh2008]

it does still apply

29(5)Subject to subsection (6) below, where any right of action has accrued to recover—

(a)any debt or other liquidated pecuniary claim; or

(b)any claim to the personal estate of a deceased person or to any share or interest in any such estate;

and the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it the right shall be treated as having accrued on and not before the date of the acknowledgment or payment.

 

So 12 years from the last payment made directly from the debtor (as opposed to the sale or endowments or anything like that)

Or an outright acknowledgement of liability

[PriorityOne]

This may refer to the gap between the issue of proceedings and the last payment under the mortgage... and if that's the case and there were in fact no proceedings from the OC (as it appears).... you may be right unless Aruk/Phoenix have managed/were hoping to sneak in just before the stat-barred status kicks in.

 

"In considering the question of acknowledgment, the adviser needs to review all documents that have passed between the parties since the last payment under the mortgage until the issue of proceedings, as one of those letters may amount to an acknowledgment of the indebtedness. It is for this reason that a borrower’s representative must be especially careful in responding to a letter before action if time has not yet expired. It is unnecessary to consider documents served after issue, such as a defence, because, if the claim was statute-barred before issue, the debt cannot be revived by any subsequent acknowledgement of it: s 29(7) LA 1980.

An acknowledgment need not quantify the debt due, it is sufficient that the amount owed may be ascertained by extrinsic evidence: Dungate v Dungate [1965] 1 WLR 1477. However, a document which admits all the facts necessary to give rise to liability, but in which the debtor denies that he is in fact liable, will not amount to an effective acknowledgement: Re Flynn [1969] 2 Ch 403. To be effective, the denial must amount to a denial of liability for all times and all purposes: Bank of Baroda v Mahomed [1999] Lloyds Rep Bank 14. A statement by the debtor that he is unable to pay the debt “at the moment” will constitute an acknowledgement because it amounts to an admission that the liability exists: Dungate." (Referring to communication between IW and the original creditor 10 years ago).

 

If we can ascertain whether acknowledgement only applies during the gap between last payment and legal proceedings, then it could be a stat-barred situation, yes. If acknowledgement also applies when legal proceedings have not taken place however, then we're not.