Help! Husband's 18year old mortgage debt landed on our doorstep today. I'm terrified.

[unclebulgaria67]

Oh well, at least you have had some peace. So if the FOS can only see evidence of payment up to 2000, being that we are now in April 2013 - the debt is now statute barred, so cannot be enforced in court. For Halifax/Shoosmiths to now proceed, they would have to provide evidence of payment or acknowledgement within the last 12 years.

 

So not all is lost. Think you need to get expert legal opinion now about the debt being statute barred. I think this can be argued, but I think you need a proper legal opinion.

 

If I am right then this period of FOS review has meant that it has taken the debt over the 12 year statute barred finish line and that would be a result, if this is the case.

[Bazooka Boo]

IMO I certainly would not be accepting their biased decision.

[perplexedofdorset]

Hi Uncle B,

 

'made payments in respect of the shortfall up to June 2000'

 

is what they said......

 

but I thought that IF the H makes contact with you or you make any payments within 6 years of the debt, ie when you default on the mortgage....

 

you're stuffed!!!

 

?????

 

Also H had 'evidence' of emails and more importantly an (apparently unsigned) letter offering to pay £1k in full and final from my OH in Sept/Oct 2004....

 

This was not mentioned at all in the decision, only what I quoted in my previous post........

 

Q: Do they send the response card to the H as well as us, asking then to agree or disagree with their decision???

and what are the connotations of accepting or rejecting???

 

I know which we are thinking at the moment.....Can you tell what it is yet??? (said in my best Rolf Harris)

[unclebulgaria67]

The 6 years thingy was about CML handbook agreeement, that the mortgage company had to make contact about the shortfall within 6 years. The FOS has decided that this was done and your OH made payments up to June 2000.

 

Perhaps for this reason, it was not necessary to look at emails and unsigned letters.

 

Next step, is that you need to seek legal advice about whether the emails and unsigned letters are sufficient acknowledgement of the debt, so that it is not statute barred. I would suggest that you do see a Solicitor about this and don't just go by an internet opinion.

 

Get the opinion, before you respond to the FOS.

[Ell-enn]

Have a look at your home insurance schedule - you may find that you have legal cover included (most policies do these days) in which case the insurance co would put you in touch with a solicitor. Alternatively look for a local solicitor who offers free initial consultations - many law firms do this, usually one evening a week.

[perplexedofdorset]

in which case the insurance co would put you in touch with a solicitor

 

But not pay for them????

 

Just say something like...'Oh Blogs, Dash*t and Doneuplikeakipper. cover your area' .????

 

We can find solicitors ourselves...i'ts finding a good one who knows his stuff and being able to pay for it that we can't do.

 

After all the problems I had last year with solicitors (of the inept and expensive variety) trying to claim a few childhood mementoes off my fathers witch...sorry I meant widow.... A cool K down the tubes and still nothing out of her!

 

The bits and bobs are only sentimental not worth a bean....I should have just offered the old bag £500 for it, the covetous cow.

[perplexedofdorset]

Sorry...Rant over!

[Ell-enn]

If you have legal cover on your home insurance then you don't pay for the solicitor they put you in touch with - the insurance company pay

[dx100uk]

brig is good on this stuff

 

give him a shout

 

dx

[unclebulgaria67]

If you have legal cover on your home insurance then you don't pay for the solicitor they put you in touch with - the insurance company pay

 

From my Insurance background, I would say that most Home Insurances will not cover such a situation. Also you would have to read the terms of any legal expenses cover in regard to when the dispute occured. This issue has been going on for years and therefore any current Insurance is unlikely to pick this up. BUT it is worth enquiring.

 

As your last experience of with a Solicitor does not sound positive, it may be worth going through your local CAB, to see if they know of a local Solicitor who deals with debt issues.

 

The advice you need is about the emails and unsigned letters, as to whether these came from your OH and acknowledge the debt. Also a Solicitor may also comment on the conclusion of the FOS, that on the balance of probability that the payments up to June 2000 came from your OH.

 

Just because the FOS have accepted that the payments up to June 2000 came from your OH, does not mean a Judge would come to the same conclusion.

[perplexedofdorset]

BTW....

 

Sorry guys I'm so stupid there's a bit on the back......(I never get past the 'Congratulations for choosing a Suckalot vacuum cleaner or Crash, bang, wallop DVD player', part of destructions either!!)

 

It doesn't alter the outcome I'm afraid but it is about the whole point of our appeal

 

The FOS wrote in the ombudsman notes section......

 

that we ' referred to the fact that the H was unable to provide details of the account payments were made from and discrepancies between H' list of Payments and the DCAs list'...

 

and the FOS.....

' do think it is unreasonable for H not to have kept a record of the account that payments were made from'

 

but that....

'discrepancies could be accounted for by delays in transfer of payments and deduction of commission'

 

But tha'ts it...

 

Apparently, it is unreasonable that the H suck at keeping records but we'll just take their word for it and put

another hard-working couple through the mincer and into deep doo doo debt or possibly even cause them to lose their home!

 

Jeez Louize

[perplexedofdorset]

If you have legal cover on your home insurance then you don't pay for the solicitor they put you in touch with - the insurance company pay

 

Really????

[perplexedofdorset]

From my Insurance background, I would say that most Home Insurances will not cover such a situation. Also you would have to read the terms of any legal expenses cover in regard to when the dispute occurred. This issue has been going on for years and therefore any current Insurance is unlikely to pick this up. BUT it is worth enquiring.

 

But we only have known about this since July 2011....we've had home contents since we moved 5 years previous to that????

 

The advice you need is about the emails and unsigned letters as to whether these came from your OH and acknowledge the debt,

 

But these came in 2004 (definitely the letter and I think the emails too, so would they not be after the 6 year time frame???.

 

Also a Solicitor may also comment on the conclusion of the FOS, that on the balance of probability that the payments up to June 2000 came from your OH.

 

Just because the FOS have accepted that the payments up to June 2000 came from your OH, does not mean a Judge would come to the same conclusion.

 

The thought is just tooo scary Uncle B.....

[unclebulgaria67]

If you get legal advice that the payments will on the balance of probability be accepted to have come from your OH and that the emails/letter were from your OH, then Halifax will have 12 years from the last written acknowledgement to enforce in court. So this will be sometime in 2016. You do remember that the statute barred time period for mortgage debts is 12 years and not 6 years.

 

Is it possible that your OH can obtain any bank statements from 2000 that shows he did not make any payments. If he can obtain statements that don't show any payments, then this would help in regard to balance of probability. Perhaps he could then write to Halifax/shoosmiths saying that since the FOS decision he has obtained bank statements that show no payments were made and he is willing to make the argument in court if necessary.

[BRIGADIER2JCS]

The council of Mortgage Lenders states that it members should not pursue shortfalls etc after 6 years has elapsed, question is the lender CML member.?

[Ell-enn]

From the CML website :

Lenders who are members of the Council of Mortgage Lenders voluntarily agreed from 11 February 2000 to begin all recovery action for a shortfall within six years of the sale of a repossessed property. If your property was taken into possession and sold more than six years ago, and you have not been contacted by your lender to recover any outstanding debt, you will not now be asked to pay the shortfall. In Scotland, lenders will begin recovery action within five years.

[BRIGADIER2JCS]

From the CML website :

Lenders who are members of the Council of Mortgage Lenders voluntarily agreed from 11 February 2000 to begin all recovery action for a shortfall within six years of the sale of a repossessed property. If your property was taken into possession and sold more than six years ago, and you have not been contacted by your lender to recover any outstanding debt, you will not now be asked to pay the shortfall. In Scotland, lenders will begin recovery action within five years.

 

Thank you ma'am !!!

[perplexedofdorset]

But that code does not stop them (in our case a company that now no longer exists, RBS) saying they did contact you before the 6 years and hounding you for years after on a 'probability' that it was the mortgage holder they were dealing with!

[sillygirl1]

I would appeal, the FOS decision

 

I would ignore the shortfall and carry on with your lives.

 

I've now had a couple of 'we have been forced to trace you to xxx' where I have lived for over 4 1/2 years from another company and I am ignoring them. The company seem to have forgotten that they repossessed me, so I can hit them with a large pile of paperwork in return to their silly letters.

 

I can't pay, have no assets and no savings so should they choose court they would be very very sorry for themselves as I will simply go bankrupt.

Edited April 17, 2013 by citizenB

[sillygirl1]

Brig, shouldn't the question be 'WAS the lender a member of the CML at the time the mortgage was taken out.....'

[unclebulgaria67]

I would appeal, the FOS decision.

 

I would ignore the shortfall and carry on with your lives.

 

I've now had a couple of 'we have been forced to trace you to xxx' where I have lived for over 4 1/2 years from another company and I am ignoring them. The company seem to have forgotten that they repossessed me, so I can hit them with a large pile of paperwork in return to their silly letters.

 

I can't pay, have no assets and no savings so should they choose court they would be very very sorry for themselves as I will simply go bankrupt.

 

This is the final FOS decision, which cannot be appealed. It is a case of either accepting to be legally bound by it or rejecting it.

 

In regard to the CML 6 year period, this relates to being contacted within 6 years of the repossession/shortfall. Halifax and their DCA did make contact, with the FOS accepting that on balance of probability that payment was made by the mortgage holder.

 

In my opinion, as Perplexed OH is working and has some assets, there is a risk that Halifax/Shoosmiths would be willing to take this to court. Perplexed and her OH, should therefore obtain legal advice about what to do next. As I said previously, it would help if evidence was available that showed a bank account which had not been used to make payments. If Perplexed OH was not living at the address where Halifax/DCA sent the letter to prior to June 2000, then it can be argued that payments may have been made by third parties.

 

My non expert opinion is to reject the FOS decision, as you don't agree that the balance of probability is that payments were made by the mortgage holder. There is no evidence to show who made the payments. Then you are not legally bound by the FOS decision and can fight on as necessary.

 

Perplexed get your OH to make enquiries with the bank he held his main account with, as to whether there are bank statements going back to prior to June 2000. If they can provide statements that show no payments that relate to what Halifax have on record, then the balance of probability is back in your favour.

 

Don't give up yet. Due to the amount involved, it is worth continuing to find out whether it is worth fighting this. If you get to a position, where it looks likely your OH did make payments and made offers of payment up to 2004, then see if you can negotiate a reduced settlement. A relative of mine negotiated a settlement of about £2k for a £30k mortgage debt.

Edited April 17, 2013 by citizenB

[perplexedofdorset]

A relative of mine negotiated a settlement of about £2k for a £30k mortgage debt.

 

If it gets to that Uncle B, can you show us how???

 

I'm in no doubt that as soon as the month is up we will be on the receiving end of an avalanche of nasty letters...

and am not looking forward to it

[unclebulgaria67]

A relative of mine negotiated a settlement of about £2k for a £30k mortgage debt.

 

If it gets to that Uncle B, can you show us how???

 

I'm in no doubt that as soon as the month is up we will be on the receiving end of an avalanche of nasty letters...

and am not looking forward to it

 

All my relative did was to get a Solicitor (family friend) to write to the debt company saying that due to their financial circumstances, to bring the matter to a conclusion, they were willing to borrow a sum of £2k from friend/relative, which they could offer as full and final settlement. Luckily it was accepted and they were able to move on. But each situation is different and you would have to find out whether Halifax were open to such an offer.

 

Don't be tempted to just sit on this now and wait for the letters. See whether you can find a better local Solicitor to get some advice from. Can your local CAB recommend someone ?

[perplexedofdorset]

I'm very much afraid Uncle B, Brig and the rest of you kind souls who have supported me (and my OH) through this so far...

 

that I am now doing a very passable impression of an ostrich!!!

 

I have completely frozen and can't think what to do or how to do it.

 

Solicitors, after our last experience and financially, are out and we both recognise that

 

on the balance of probability THEY will never believe US and will now hound us ....

 

HELP!!!!!!!!!

[BRIGADIER2JCS]

Good morning,

 

I really think the FOS decision is flawed there is a need here I think for provision of ''unequivocal'' proof that your OH made the payment imo the onus is entirely upon the ''creditor'' and it is not for your OH to prove he did not make payments.

 

It may well be an advantage if they did issue proceedings and you a were able to put your case to a judge.

 

There is a doubt placed in my mind that your OH made the payments because of the ''residential'' question which does suggest that a 3rd party or parties made payments to the account without your knowledge.

 

It is I think enough to give some hope of success if this was tested in court.