Limitation act 1980 & bankruptcy petition

[KVF]

Hi

 

I have been reading various threads on this forum with interest but need to know if anyone can clarify dates for me with regards to the limitations act and statute barred debts.

 

I know if a County Court Claim is issued within 6 years then it is valid. However the creditor (Lowell Portfolio 1 Ltd) has jumped straight to a Bankruptcy Petition.

 

My last payment for the debt was in July or August of 2006 and since then I have not paid towards or admitted the debt.

 

In June 2012 a Statutory Notice was served on me personally, though I was asked for no id and no signature. I did not respond. This was served it appears (though records are fuzzy going back 6 years) just within the 6 year period of when I last paid/admitted the debt.

 

In September 2012 the petition was presented to the court which is outside of the 6 years.

 

The hearing date is in December.

 

National Debtline believe the 6 year limitation is from the date I last paid/admitted the debt to the date of the hearing which is outside of the 6 year period.

 

The date the petition was presented in September was outside of the 6 years.

 

But the date the statutory demand was personally served was within. So is the debt Statute Barred???

 

Interestingly the Petition itself was posted and served personally, but the Statutory Demand was only served personally, no letter.

[KVF]

I'm hoping to fight it. I can't afford to go bankrupt - too much to loose. I had issues going back to 2002 when the finance was taken out and after 4 years the finance company did nothing so I stopped paying when I felt I'd paid more than enough and wrote to them to tell them why I'd stopped paying.

 

Now 6 years on it's being pursued. The hearing is on the 4th December so I don't think there's the time to request any information. I've emailed (and filed a copy with the court) to the firm handling the petition 14 days ago stating it was statute barred and that they should provide proof of payment/acknowledgement of debt within the last 6 years within 7days - no reply. So 7 days ago I sent a further communication via fax (and filed a copy with the court) again stating that it's statute barred, they should cease harrassing me, withdraw the petition and write to me within 7 days to that effect. Again no reply.

 

I have a form 6.19 to complete and file and serve 7 days prior to the hearing which I've been told to write 'without prejudice I've advised the petitioner that the debt is statute barred and they haven't proved otherwise'. I've been told the onus is on them to prove otherwise. I have some letters from outside of 6 years ago from the original creditor which show the account has a missed payment - i.e. I stopped paying and the date they wrote to me about it.

 

It does worry me what might happen on the day though and I wonder if I can get them to withdraw the petition. Any advice much appreciated.

[KVF]

Have you sent off a CCA request ?

 

What's a CCA? And what costs would I be claiming and how?

[KVF]

The CCA request is here - CCA-request-letter it only applies to credit cards / loans / hp credit - you need to send it recorded delivery with a £1 postal order. It goes to Lowells and they cannot avoid their durties under the Consumer Credit Act to provide this agreement, if they don't then the debt is unenforceable whilst in default.

 

I already have a copy of the agreement, or is this simply a £1 gamble to see whether they can produce it or not within the timeframe?

[KVF]

I have made no requests for info other than a letter to the legal people handling the petition asking them to provide proof that payment or acknowledgement was made in the last 6 years.

 

The copy I have is the original from 2002.

[KVF]

How would a CCA request stop any worried re statute barred? Or is it simply the hope they can't produce it in time?

The court date is 4th December so a little time but not the 40 days for the other info.

I have letters from the original creditor dated over 6 years ago showing the account in arrears when I ceased paying.

[KVF]

Ok, so then I should leave it a little later so they have a clear 14 days but nothing extra prior to the hearing to produce this at which point that my defence along with being statute barred, or since I and they have to file any documents with the court and the other party 7 days prior to the hearing should I issue this request 14 days prior to that, i.e. in about a weeks time?

[KVF]

Those letters are proof it is statute barred and should form your defence, no point in doing any complicated one, just a simple

 

DEBT IS STATUTE BARRED - ABUSE OF PROCESSES

 

type defence should be more than sufficient.

 

Lowells own the debt, but BW Legal are handling it - who should I send the request to?

[KVF]

Just to clarify, Blackhorse Finance are the original creditors, they sold it to Lowell Portfolio 1 Ltd whom are using BW Legal to handle the petition. So the request is sent to Lowell?

[KVF]

Or send copies to both. My previous experience of Lowell is that they don't appear to deal with correspondence, so BW Legal may be none the wiser, just continuing on.

 

My understanding is that they cannot enforce whilst they are in default of supplying a copy of the original contract, so writing to Lowell's seems the best option. If they fail to produce then BW Legal can't enforce.

[KVF]

Ok an update. Was in court and their rep came to see me before we went in, referred to my communication back in October that the debt was Statute Barred and wanted to request a 56 day adjournment so they could access the information from the original creditor.

 

The judge certainly paid attention to the fact that no information had been provided in almost two months, and confirmed that a statute defence was worthy, and that I shouldn't be subjected to this sort of action, however because I hadn't replied to the original Statutory Demand, he was minded to allow the petitioner time to get the records from the original creditor. He was not minded to give them 56 days however and it's set for the first available date in the new year (mind that might well be 56 days anyway by the time it comes up). He also told them to 'get their act together' and either produce the documents for the next date or withdraw the application.

 

With hindsight I perhaps should have argued that the petition should be dismissed regardless, since even if it turns out it's not statute barred, the debt was substantially disputed going back to 2002 on a number of grounds and this would require a trial (county court claim) to resolve. My understanding is insolvency procedures are for people who can't or won't pay. My refusal to pay originally stemmed from the original dispute and until a court orders in their favour i'm standing my ground. But the judge was summing up at that point and hindsight is a wonderful thing.

 

I have today however received a letter from Hampton's regarding my CCA request to Lowells's using the template request on this forum. This is dated the same date as the court hearing I just attended and reads:

 

We acknowledge receipt of your recent correspondence (9th November - not very recent) the contents of which have been duly noted.

 

We can confirm that we have contacted the original lender for copies of the agreement and statements for your account.

 

Please note there is no legal obligation that states we must send this information within a certain period and we advise that as we do not hold copies of these documents within our offices we cannot state a time period in which these will be received.

 

Your account is currently held with BW Legal. Please be assured we have contacted them to hold any further action on your account until the requested documents have been provided.

 

We trust this is satisfactory.

 

Any advice in the meantime or simply await the next date and see what they produce?

[KVF]

Can I urge you to report this to the OFT too....they are collating information on anything associated with Lowells....it is REALLY important you do report this...

 

How do I report that?

[KVF]

I've sent the OFT an email.

[KVF]

Your account is currently held with BW Legal. Please be assured we have contacted them to hold any further action on your account until the requested documents have been provided.

 

We trust this is satisfactory.

 

Any suggestion what this might mean? Petition hearing was adjourned until the first date after 4th January but this letter is dated the same date as the hearing...

[KVF]

Think this relates to your CCA req to Lowell.

 

Yes it does I believe, however they have said '...to hold any further action on your account until the requested documents have been provided' - now 'action' is in my mind ongoing since I have a bankruptcy petition against me for which the next hearing is January, so should they withdraw the petition in order to hold further action?

[KVF]

You should continue (report the latest letter from Hamptons to the OFT as it could mislead the uninformed that court action WILL cease) and claim your costs in court.

 

Can you rephrase that please - not sure what you mean. I have reported the letter to the OFT but should I advise the court of the letter or simply await the next hearing when they may then produce something...

[KVF]

Consumer Credit Act 1974 (the Act)

Complaint Against: Lowell Portfolia I Ltd

Licence No: 544015

 

Thank you for your email received on 11 December 2012.

 

I can confirm that the business you mention holds a consumer credit licence. Under the

Consumer Credit Act, holders of consumer credit licences must be fit and competent

to do so and the Office of Fair Trading (OFT) has a duty to monitor the fitness and

conduct of all traders who hold such a licence.

 

The OFT has issued guidance to consumer credit licence holders engaged in the debt

collection industry. The guidance is intended to ensure that debt collectors treat

individuals fairly. Non-compliance with this guidance will call into question the fitness

of licence holders and applicants. You can view our guidance at:

http://www.oft.gov.uk/advice_and_resources/resource_base/legal/cca/debt-collection

 

We have therefore recorded the details of your complaint, and we will consider this

alongside any other complaints we have received with a view to any consumer credit

licensing or other action we may decide to take. If we do take any action against this

trader we may need to contact you again in the future. Unfortunately, we cannot

disclose any details about any action we may take, due to legal restrictions on the OFT

relating to disclosure of information.

 

While we are very sorry to hear about the difficulties you have been experiencing, the

OFT has no authority to become involved in individual disputes between consumers

and traders so we cannot advise you directly in this matter.

 

The Financial Ombudsman Service can help with most complaints about consumer

credit products and services if the consumer has failed to satisfactorily resolve the

matter directly with the consumer credit licensee itself. The Financial Ombudsman

Service can be contacted at:

 

The Financial Ombudsman Service

South Quay Plaza

183 Marsh Wall

London

E14 9SR

 

Telephone: 0800 0234 567

 

The OFT has published a consumer guide about debt collection which you may find

helpful. The guide can be viewed on the OFT’s website:

http://www.oft.gov.uk/shared_oft/consumer_leaflets/credit/oft1299.pdf

 

Thank you again for writing to us and bringing this matter to our attention.

 

Yours sincerely

 

 

 

 

 

Danny O’ Sullivan

Enquiries and Reporting Centre

Office of Fair Trading