dca chasing nationwide debt - what to do?

[Chrissie1980]

Ok hi everyone been a while since I have been on here, so here's what has happened I got a letter back in April from Aktiv Kapital about a debt from Nationwide which I have not made a payment according to my credit report since April 2008.....

 

The account is now 9 months from being statute barred.I have heard nothing from Nationwide since 2008 and now I have this letter from Aktiv Kapital saying the account had gone into default in 2009.

 

As I was moving I sent the letter back saying no longer at this address and I have not had any further correspondence, I did put a redirection on our mail. I checked my credit file this morning and there plain as day is a default from Aktiv Kapital.

 

What should I do? If I send them a CCA and they send me the argeement then the counter will go back to zero won't it? Please help I need some advice on what to do next. Tnx

Edited July 18, 2013 by citizenB
formatting

[Peterbard]

Are you in England or Scotland ?

[maroondevo52]

If I send them a CCA and they send me the argeement then the counter will go back to zero won't it? Please help I need some advice on what to do next. Tnx

 

Hi,

 

The CCA request would not count as acknowledgement of any debt, the £1 payment is not a 'payment in respect of a debt' it is the statutory payment for your information request under the Consumer Credit Act. Therefore it cannot be considered a payment in relation to the statute of limitations.

 

What was the debt ?

 

What dates the default on your CRA file ?

[Chrissie1980]

Hi thanks for your replies, I am in England and the default on my cra is Feb 2009 but the last payment on the account was April 2008

[maroondevo52]

So the default will drop off in Feb 2015, think you'd have problems getting it removed.

[Peterbard]

The statute bar "clock" will commence at the termination of the agreement which would be presumably 14 days after the default notice was sent.

[renegadeimp]

Sb starts at the time of the last payment towards the debt or written acknowledgement. The date of sb can be around 6 months before the date of default. Sometimes longer.

[Chrissie1980]

SO it won't be next year? It will be 2015? Even though the debt has not been acknowledged since 2008?

[renegadeimp]

What was the actual date of the last payment and written ack of the debt? If it was 2008 then you have to wait till 2014 in any case.

[renegadeimp]

SO it won't be next year? It will be 2015? Even though the debt has not been acknowledged since 2008?

 

 

If your last payment /ack was in 2008 then it is sb next year.

[Peterbard]

If your last payment /ack was in 2008 then it is sb next year.

 

 

This is incorrect I am afraid see BMW vs Hart, the bar runs from the point at which the agreement was terminated and the creditor was entitled to recover all sums due under it.

 

Once this date had past it would be the last payment or acknowledgement of the account.

 

Dodge

[renegadeimp]

We are talking about the ops issue. We know that if payment was never made to the account since inception it would be the date of termination. Provided they terminated the account within a decent timeframe. The default notice date has no bearing on sb status as it can be issued at any time.

[Peterbard]

Further reference

 

http://www.lexology.com/library/detail.aspx?g=cab5d9c5-7731-4047-8dd7-21b6701a273e&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2012-10-23&utm_term=

 

Timing is everything: Court of Appeal hands down decision on when claims under hire purchase agreements are time-barred

 

 

 

On 10 October 2012, the Court of Appeal handed down an extempore judgment in BMW Financial Services (GB) Limited v Hart (2012) on an issue which will be of considerable interest to consumer and asset finance providers: when does the limitation period for bringing a claim for the unpaid balance expire? In a pragmatic and sensible decision, the Court of Appeal decided that the cause of action to recover the unpaid balance did not start until the lender had served a termination letter or accepted the debtor’s repudiation of the agreement.

 

 

The Facts

BMW Financial Services (GB) Limited ("BMWFS") entered into a hire purchase agreement (the "Agreement") with Mr Hart. It does not appear that the Agreement was regulated by the Consumer Credit Act 1974 (the "CCA"). In July and August 1999, Mr Hart failed to pay two monthly instalments. By a letter dated 26 August 1999, BMWFS accepted Mr Hart’s repudiation of the Agreement and terminated it. BMWFS demanded payment of the unpaid balance.

 

 

Mr Hart left the UK without paying. BMWFS issued a claim on 26 August 2005. Default judgment was obtained. On returning to the UK, Mr Hart became aware of the judgment. He successfully applied to have it set-aside by arguing that the claim had been issued outside of the limitation period. His Honour Judge Halbert, sitting in the Chester County Court, decided, following Reeves v Butcher [1891] 2 QB 509, that the limitation period started when Mr Hart did not pay the instalment in July 1999 and that the claim was time-barred.

 

 

Court of Appeal

BMWFS appealed to the Court of Appeal arguing that HHJ Halbert had erred in his interpretation of Reeves and the terms of the Agreement. After hearing submissions, the Court of Appeal allowed the appeal and decided:

In Reeves, the agreement stated that the monies would not be called in so long as the borrower regularly paid interest. If, however, the borrower missed a payment, the balance of the loan (including interest) would become due 21 days after default.

Under the terms of the Agreement, BMWFS had no right to make a claim for the unpaid balance until it had given notice of termination or accepted Mr Hart’s repudiation of the Agreement.

It was only when BMWFS had given notice of termination or accepted Mr Hart’s repudiation that the sums due under the Agreement became due. Until that point the only sums Mr Hart had to pay were the outstanding instalments.

Mr Hart’s failure to pay the instalment did not, on its own, accelerate the obligation to pay the whole amount due under the Agreement.

The Court of Appeal therefore distinguished the earlier decisions of Reeves and Hemp v Gardland 114 E.R. 994 (which Reeves followed).

Comment

The Court of Appeal’s decision is both pragmatic and commercially sound. The Agreement, like many others, stated that the balance became due upon termination. If the Agreement had been regulated by the CCA, termination is subject to the lender serving (where appropriate) a notice under the CCA (most commonly a default notice or, for non-default cases, a combined enforcement and termination notice). Notice is specifically required before a lender can become entitled to (amongst other things) demand "earlier payment of any sum".

 

 

If the Court of Appeal had come to any other conclusion it would have been contrary to the wording of the CCA. This envisages that the balance does not become due (and cannot be demanded as being due) until after the expiry of the notice period. The Court of Appeal’s decision can also be used in appropriate circumstances by lenders wanting to stop the limitation period running. It seems clear that, subject to an argument that the lender has affirmed the agreement by not taking steps to accept a debtor’s repudiation, termination could be delayed until the end of the term of the agreement. This would allow lenders to delay (most obviously where the debtor is in a difficult financial position or cannot be located) issuing proceedings until the last moment, like BMWFS did, and avoid being time-barred

[Peterbard]

We are talking about the ops issue. We know that if payment was never made to the account since inception it would be the date of termination. Provided they terminated the account within a decent timeframe. The default notice date has no bearing on sb status as it can be issued at any time.

 

The OP said"the account had gone into default in 2009" ?

Edited July 18, 2013 by Dodgeball
clarity

[renegadeimp]

The default was placed in 2009 which is why he stated 2008 as the last date of payment/ack. Never EVER believe a dca when it comes to dates.

[unclebulgaria67]

The OP said"the account entered default in 2009" ?

 

That BMW v Hart case has nothing to do with agreements subject to the CCA. I don't remember seeing any case quoted where the limitations act for a CCA debt has been successfully argued as being from the default or termination date. Limitation runs from the last date of payment or written acknowledgement.

[Peterbard]

Was this a current account overdraft, or a loan ?

[Peterbard]

That BMW v Hart case has nothing to do with agreements subject to the CCA. I don't remember seeing any case quoted where the limitations act for a CCA debt has been successfully argued as being from the default or termination date. Limitation runs from the last date of payment or written acknowledgement.

 

Please read my earlier post where I believe CCA agreements are specifically mentioned

 

"The Court of Appeal’s decision is both pragmatic and commercially sound. The Agreement, like many others, stated that the balance became due upon termination. If the Agreement had been regulated by the CCA, termination is subject to the lender serving (where appropriate) a notice under the CCA (most commonly a default notice or, for non-default cases, a combined enforcement and termination notice). Notice is specifically required before a lender can become entitled to (amongst other things) demand "earlier payment of any sum""

[Chrissie1980]

Hi thanks for the information it was a loan

[renegadeimp]

Find out your last payment date and written acknowledgement. Add on 6 years. Thats your sb date.

[Peterbard]

Hi thanks for the information it was a loan

 

Hi Chrissie

 

Did you recieve a default notice ? When was the repayment date on the loan originally set to expire. Can you remember the terms ?

[Chrissie1980]

I don't remember receiving a default notice and the loan was over 4 years so would have been up in 2010 I think..... Don't remember any of the terms as it was taken out in 2006

[BRIGADIER2JCS]

For clarification the statute barred date = the date a payment was due and not made after which no further payment was ever made, so

So disregard other dates, default dates and SB dates are not connected, nor has the sending of a default notice (which is not in its self a default only notice that a default may be placed if the conditions set out in the DN are not complied with).

 

A default according to the ICO should NORMALLY be placed within 6 months of the cause of action i.e. the last delinquent payment.

Edited July 18, 2013 by BRIGADIER2JCS

[Peterbard]

Yes the start of the SB would be when the agreement was terminated as per the case law provided, so it really depends on when they issued the DN and terminated your agreement.

 

When was the account passed to the DCA ?

 

Dodge

[Peterbard]

 

A default according to the ICO should NORMALLY be placed within 6 months of the cause of action i.e. the last delinquent payment.

 

A default notice recording on your credit file has absolutely nothing to do with the SB date, this advice should be ignored, it merely records when the account was considered to be in the default condition,

A default notice should have been issued under consumer credit act prior to the account being terminated(this is a different procedure), have you received any notifications of arrears or a statement to say when the account was closed?