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HFO - Statute Barred


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Hi folks, hoping you may be able to offer advice please? I've been reading the forums trying to understand my position but not sure exactly so am posting this thread. I've also seen a lot about HFO on here so it seems they are on a debt collection push/threat/annoy at the mo?

 

Do we reckon they read these threads? I imagine they do to work out their next move...

 

Anyways, my position is:

 

I've recieved a letter from them stating I owe a debt from Welcome Finance, I'ce checked my credit file with Experian and this is showing on there as a credit agreement started in spring 2003 and defaulted in Autumn 2006.

 

I have made no contact with WF or HFO since at the very latest Summer 2005, by contact I mean payment. I have never written and acknowledged the debt but I may have made a payment back then.

 

So, I sent an email explaing I do not acknowledge this debt and believe it to be statute barred, I set out the reasons why using one of the template letters.

 

I then called them today too after sending the email (which they advised they had already looked at), to state the same thing - it is statute barred. I was told on the phone it isn't statute barred due to the last cause of action being the default date of Autumn 2006 which would mean it is statute barred next Autumn. I argued I do not believe that to be the case and more or less repeated the lines from the letter that I have made no contact or made payment within the last six years and they need to prove otherwise. They stated again it is not statute barred and will be pursuing me for this due to the default date. I then suggested that WF did not adhere to guidelines about managing debt if it was only defaulted in Autumn 2006 when no payment or contact was made since Summer 2005, but regardless, I still believe it is statute barred and I do not acknowledge it. I advised if they are going to pursue me for it then I am willing to let this go further and argue that is is statute barred. They advised they would send an email to me immediately stating it will be pursued and I left the conversation.

 

I have not recieved an email they said they would send saying they will pursue it since I had the conv about 4pm today.

 

So basically, I'm wondering what to do next. I can see from reading the various threads that they probably aren't likely to drop it but, after speaking to the National Debtline am wondering whether they have a leg to stand on. The NDL said it is more likely because of the dates that a court would see in my favour but whether I am willing to let it get that far. I am more than willing to get that far so, should I await a further letter or email from them?

 

After reading a few threads, are they now likely to try and push for a CCJ before I do anything to try and prevent that from happening? Or am I already in a position to prevent that by stating it is statute barred going on the dates I have etc?

 

I guess even if they did try and push for CCJ then the court SHOULD see in my favour?

 

Oh, also I noticed that debt now has a few more grand added to it? Which I imagine is charges??

 

Thanks for your help in advance...

Edited by debtstressed
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Hi there.

 

Forget what they've listed as the default date. With credit agreements the cause of action begins at the point where contractually they could first bring action against you. For credit agreements this is usually either once two or three missed payments have occurred. *IF* the limitation period was when a credit states an agreement has defaulted no-one would ever default people. The OFT agree with this view, the whole default argument raised by creditors is known as a 'procedural bar'. My suggestion? keep disputing the debt and consider a CCA request to obtain a statement of account. Hope this helps.

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Hi there.

 

Forget what they've listed as the default date. With credit agreements the cause of action begins at the point where contractually they could first bring action against you. For credit agreements this is usually either once two or three missed payments have occurred. *IF* the limitation period was when a credit states an agreement has defaulted no-one would ever default people. The OFT agree with this view, the whole default argument raised by creditors is known as a 'procedural bar'. My suggestion? keep disputing the debt and consider a CCA request to obtain a statement of account. Hope this helps.

 

Hi sequenci, thanks for your reply.

 

So just keep along the lines of statute barred then? I was thinking that be the case as I am SURE it is classed as that. Should I put in a CCA request tomorrow do you think or wait for their response?

Many thanks

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Forget a CCA request.

 

HFO are lying. Simple as that. They’re telling lots of fibs about default dates being the cause of action recently.

 

If they dare to send an email or letter reiterating that falsehood, you must immediately invoke their complaints procedure, and also contact the OFT and Trading Standards.

 

I suggest you demand a copy of their complaints procedure now, and make a formal complaint.

 

Contact the OFT anyway about this.

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time to ignore them

 

 

you MUST neve ever phone a DCA !!!

 

dx

  • Confused 1

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Thanks for this DB, I was going to just post and ask if they today were telling me a lie by saying the cause of action is the default date.

Maybe that is why they didn't immediately reply to my email like they said they would?

 

I more than ever want to and am inclined to pursue them now as it looks like they just keep doing this to loads of people?

 

What should I do now to take control of this do you think? Contact them tomorrow to make a formal complaint and stat the ball rolling to refer them to the OFT? How long should I wait for them to reply to my email and tel conv I had with them today?

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Hi DX, yeah - :oops: I stumbled across CAG after sending the email and call unfortunately but am very confident that I more or less re-iterated what I put in the email. All correspondance will be email and letter from now on.

 

time to ignore them

 

 

you MUST neve ever phone a DCA !!!

 

dx

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OFT Contact http://www.oft.gov.uk/contactus for the attention of Polly Ashford

 

Might be worth you contacting Welcome to see if you can get proof of the last payment date, just to make sure. You can send a CCA request if you like - this would effectively put the account in dispute and they should send statements in response to this but I would not panic and certainly do not speak to them on the phone

Please support CAG and they will support you.

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You must complain to the OFT about this as they are deliberatley trying to mislead into paying.

 

There are a number of reasons why HFO could not enforce this debt - but for now the main one is the stat barred status.

 

The OFT guidelines are clear - once you have informed them that the debt is stat barred they must stop all collection activity - as you have informed them that it is stat barred - and they still insist that they are going to continue with collection activity they are in clear breach. This must be reported.

 

Them telling you that the cause of action is the date of the default - when they know that his is not true - is a clear attempt to gain monetary advantage by deception - contrary to the fraud act 2006.

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I've recieved their email response as they said they would send out yesterday...

 

Dear

 

Account Number :

Original Creditor : Welcome Financial Services

HFO Case No :

Amount Owing :

Thank you for your e-mail dated 23 November 2011, the contents of which have been duly noted.

 

We note that you refer to the Limitations Act 1980, section 5 which provides that “an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued".

 

I am delighted to confirm that this account is not statute barred based on the following facts:

 

The debt was registered as a default on your Credit Bureau Report on 01-10-06 which is well within the 6 year time frame as Statute Barred is also calculated from the “Default Date”

 

I would also like to draw your attention to the statement made by the Office of Fair Trading on the 16 October 2010 regarding issues such as this.

 

Please see exact text from the Financial Ombudsman below:

 

“The statute barring can only be applied where no contact has been made between a debtor and a creditor in a given time period. If a creditor fails to maintain contact with a debtor for a period of 6 years or more it is possible to claim that the debt is statute barred under the Limitation Act 1980”

 

The limitations do not stand valid here as we had sent you letters in the past, within the period of 6 years. Please find below, the required information about the communication:

 

They then go on to detail the dates they suggest they have sent out 9 letters over a period 2007 - 2011.

As you are aware, under any credit agreement, you are duty bound to provide your new address to your creditors. On reviewing the matter, we can ascertain that at no point did you notify either ourselves or Welcome Financial of your new address. This alone places you in further breach of the agreement and annuls your view that this account is statute barred.

 

Our main concern is that you failed to respond to 9 letters we have sent to you and only responded on a date after which you deemed the account to be statute barred.

 

We trust that this has allayed any concern you hold.

 

We shall now afford you the opportunity to negotiate payment on this account as this debt will not dissipate. We shall dedicate all our commercial resources to recover the balance owed.

 

At this juncture, you need to decide to cooperate (in which case we shall work amicably with you to resolve this and come to a payment plan you can afford) or seek to evade (in which case, the probability of us passing this to our solicitors to obtain a County Court Judgment against you is high).

 

We look forward to your informed response.

 

Yours faithfully

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OFT Contact http://www.oft.gov.uk/contactus for the attention of Polly Ashford

 

Might be worth you contacting Welcome to see if you can get proof of the last payment date, just to make sure. You can send a CCA request if you like - this would effectively put the account in dispute and they should send statements in response to this but I would not panic and certainly do not speak to them on the phone

 

By phone or letter? If I contact WF, what do I say to find out the date of the last payment? I have a feeling now it was even before Summer 2005...

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Simple response: see you in court.

 

Who sent that? Please name them.

 

Get that straight to the OFT. Its contents are total lies.

 

I visited the PFT contact page Donkey but couldn't find how to email them? Its says I should contact Consumer Direct?

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wow what a crap letter

 

and not one point is correct!!

 

that will really get them in trouble frame it!

 

and yes go thru CD website, wont hurt.

 

dx

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Am just about to send this - do we think it is ok?

 

Dear HFO,

 

Thank you for your correspondance below.

 

Please could you inform me of your official complaints procedure as soon as possible.

 

I have sought independant advice from various sources and I will be making an official complaint to your head office and to the Office of Fair Trading about your practice in regard to this matter.

 

You are in clear breach of the OFT Debt Collection Guidelines section 2.14 (b) which states:

  • it is unfair to mislead debtors as to their rights and obligations, for example, falsely stating or implying that the debt is still legally recoverable and relying on consumers not knowing the relevant legal provisions,

You are falsely stating this debt is still legally recoverable by stating "The debt was registered as a default on your Credit Bureau Report on 01-10-06 which is well within the 6 year time frame as Statute Barred is also calculated from the “Default Date." and "(in which case, the probability of us passing this to our solicitors to obtain a County Court Judgment against you is high)."

 

I again refer you to the Limitations Act 1980 section 5 which states:an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued."

The cause of action is not the date a default was registered on my file, the cause of action is the day after the last payment was made on this account.

You are also in breach of the OFT Debt Collection Guidelines section 2.14 (b) which states:

  • continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred could amount to harassment contrary to section 40 (1) of the Administration of Justice Act 1970.

I informed you on the 23rd of November and again inform you now that I do not acknowledge any debt to you or any other company or organisation that you claim to be representing. This debt is Statute Barred.

The Limitations Act 1980 will only not apply if you can prove that I have contacted you to acknowledge this debt or I have made a payment towards this debt in the last six years. Neither of which I have done.

I inform you now that I will not be wasting anymore of my time in regard to this matter. I have seen and heard from various sources that your business practice appears to be tantamount to harrassment and I will not tolerate this any longer than necessary. I will do my best to defend myself and my rights using the powers of English law if you continue to fail to adhere to the Guidelines that govern how HFO Services conduct themselves as a Consumer Credit License holder.

I again advise that I await your written confirmation that no further contact will be made concerning the above account and confirmation that this matter is now closed.

I look forward to your reply.

 

Yours faithfully

Edited by debtstressed
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Are you certain of the last payment date? Have you rung Welcome? Actually the date that you should use is ONE MONTH after the last payment i.e. date of first missed payment as this is the 'Cause of Action', I believe. I would get all the facts before responding. Do get that email to OFT - Contact OFT through http://www.oft.gov.uk/contactus for the attention of Polly Ashford or direct to her email address.

Please support CAG and they will support you.

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Are you certain of the last payment date? Have you rung Welcome? Actually the date that you should use is ONE MONTH after the last payment i.e. date of first missed payment as this is the 'Cause of Action', I believe. I would get all the facts before responding. Do get that email to OFT - Contact OFT through http://www.oft.gov.uk/contactus for the attention of Polly Ashford or direct to her email address.

Yeah, I am sure it is well over 6 years ago CD, maybe more. I haven't rung Welcome. I'll change it to one month then but otherwise do we think it is ok? Thanks

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Are you certain of the last payment date? Have you rung Welcome? Actually the date that you should use is ONE MONTH after the last payment i.e. date of first missed payment as this is the 'Cause of Action', I believe. I would get all the facts before responding. Do get that email to OFT - Contact OFT through http://www.oft.gov.uk/contactus for the attention of Polly Ashford or direct to her email address.

 

Cause of action would be the point in which action could be brought as per the terms adn conditions, e.g. a few missed payments then the prescribed time for when a default notice can be served and expire - so 7 or 14 days depending on when the agreement was taken out.

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To be safe calculate SB date as date of last delinquent payment + 1 month.

 

Sorry Brig, but I have to disagree with that. Action wouldn't be possible on a regulated agreement that quickly. The limitation period would always run from the point in which action could first be brought (see Reeves v Butcher). It may actually be a little later than that, in fact it's likely to be.

 

However, this is pretty academic as once a limitation argument is raised it is down to the claimant to prove that a debt is NOT stat barred - clearly something they are finding very difficult to demonstrate (Congregation Union Inc v Harriss and Harriss).

 

My personal view is that HFO are trying it on. Big time.

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Of course they are trying it on the default date is irrelevant to SB.

If I fail to pay an ''installment'' today and do not make another

payment or acknowledgement in 6 clear years it matters not if the

creditor places a default in one day one month or 5 years the SB date

is the last delinquent payment.

Never be sorry to disagree.

Any Letters I Draft are N0T approved by CAG and no personal liability is accepted.

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