dca chasing nationwide debt - what to do?

[Peterbard]

Keywords there being asset finance. It has no bearing on what we are discussing.

 

Keywords being consumer finance lol - it mentions both!

[renegadeimp]

Except it doesnt have a bearing on what we are discussing. Those words were written by the article writer, and not the judge. SInce the article writer is heavily biased towards debt and finance companies, it makes sense she would generalise. Im willing to be proven wrong if you can find the wording in the court of appeal docs that specifically state that unsecured loans can make use of this judgement.

 

Reading through it, it looks very much like only SECURED consumer finance or General asset finance is covered, and not UNSECURED consumer finance.

 

Remember, this entire case and judgement was to deal with finance that was secured in one way or another. In this case, it being HP. If it was otherwise, then the OFT, FCA and CAB plus all debt charities would have been forced to update all their documents. They havent, it hasnt changed.

[Peterbard]

I think we'll agree to disagree on this. I just think it prudent (especially doing what I do) to take account of implications of decisions like this.

 

On a slightly different tack, I've always taken the approach with SB debts that it's best, if at all possible, to keep quiet and don't say anything at all for as long as possible. Specific dates are less likely to be relevant then.

[renegadeimp]

I agree, it pays to be prudent, but that case clearly states that it was geared towards secured debt, and not generic consumer finance.

[BRIGADIER2JCS]

Fortunately the case applied to an 'hire purchase contract' somewhat different to a simple contract. I am sure the OFT would have modified the Guidance on SB if it felt there was relevance here.

 

Also as the vast majority of the matters we see here are quickly defaulted and terminated the 'case law' will have a very minimal effect any way if it is applied.

 

So far since that Appeal Court judgement I have not seen one single instance of a DCA refuting a statute barred declaration based upon it.

 

This applies to what I've seen on CAG and elsewhere.

Edited July 19, 2013 by BRIGADIER2JCS

[citizenB]

IMHO, I think hijacking someone's thread to argue between yourselves is a breach of forum rules. So I suggest one or the other of you start a thread of your own to discuss this, which again IMHO has no bearing on the OPs question.

 

Please do NOT respond do this post, I will simply remove it.

[Peterbard]

Yes the decision was a HP agreement,but the judge used common law precepts to make the decision and thus they apply to all contracts.

 

HP agreements incidentally are regarded as fixed sum contracts for the purposes of the CCA and all associated regulation.

 

More recent legislation is clearer on this definition of the start date for the statue barr, if you look at the Northern Ireland legislation for instances it states that the bar commences when the request for payment is sent, as stated this can only occur post termination, for reasons stated.

 

This is now the accepted practice for determining the start date for SB's like it or not, I am not espousing some theory here, the data sheets downloaded on this thread illustrate this, when they say for instance that open ended agreements are difficult to estimate, this is because you do not know when the termination date occurs.

 

If you think about this , if it were not true the SB date would start whenever a payment is missed on say a fixed sum loan, then be repeatedly started and stopped every-time a payment was made, even though the loan was still active, this is patently and obviously wrong.

 

I may start an information thread to explain the process more fully.

 

Dodge

Edited July 19, 2013 by Dodgeball

[Peterbard]

duplicated post

 

Dodge

[Peterbard]

 

It is extremely clear and cannot really be argued with. I am sure Dodgeball would not gloat over his victory proving us all wrong.

 

LOL no not interested in gloating, just want to ensure the OP does not depend on a SB when it is not yet due.

 

Dodge

[unclebulgaria67]

Dodgeball.

 

It would be simpler to say that each case will be different, as you have to look at the agreement to see what it says about the debt being in default and that court proceedings can begin to start recovery.

 

It is pretty pointless on either side of this debate to just add more information, as it just becomes confusing. It does not help, because each particular individual case would need to be looked at individually. Hence the advice by National Debtline is just general advice and that they say people should call them to go through the debt information in more detail.

[Peterbard]

Dodgeball.

 

It would be simpler to say that each case will be different, as you have to look at the agreement to see what it says about the debt being in default and that court proceedings can begin to start recovery.

 

It is pretty pointless on either side of this debate to just add more information, as it just becomes confusing. It does not help, because each particular individual case would need to be looked at individually. Hence the advice by National Debtline is just general advice and that they say people should call them to go through the debt information in more detail.

 

It really is not confusing, the court case clarified the position quite elegantly.

 

Simply the cause of action can only occur when all sums due are reclaimable, that is it. On any consumer agreement regulated, unregulated, hire purchase or whatever this can only be post termination, as before this the terms of the agreement apply and the creditor cannot demand full payment.

 

In A cca agreement(any cca agreement) there has to be a DN issued before this.

 

As far as the OP is concerned, she had a fixed sum loan, now it does depend on how the DMP was set up, was the agreement terminated and then the repayment plan made as a new arrangement, or was the original agreement left running and the repayments amended.

 

These are questions that have not been asked or answered and are the ones that will decide when the SB period commenced.

 

But in either case and until this is known the OP should not depend on the agreement being statute bared in 2014

[Chrissie1980]

As far as I am aware the agreement was never terminated, it was just adjusted under the same contract

[BRIGADIER2JCS]

As far as I am aware the agreement was never terminated, it was just adjusted under the same contract

 

That's what I thought!!

[Peterbard]

As far as I am aware the agreement was never terminated, it was just adjusted under the same contract

 

In that case I would be prepared for them to say that the stat barr date was well past the one you would like it to be.

 

If they are now demanding full payment the agreement must have been terminated at some point, otherwise they would not be able to pursue payment.

It may be that it was when you defaulted on the payment plan, in which case this is when the SB term would commence, does this fit with the 2009 credit file entry ? this does not have to represent the termination date but often they do both procedures together.(enter the credit default marker, and default/ terminate the account)

[Peterbard]

Sorry in addition, if they did not terminate the account they may have let it run until its full term, which was I think you said 2010. If this is the case this is when the SB clock would start, and the account would be SB in 2016

 

Dodge

[Chrissie1980]

How can it be if a new contract was never made and the last payment was made in April 2008 and nothing since? All I thought Nationwide had done passed it onto a dca..... The DMP was cancelled when the last payment was made

[Peterbard]

Fortunately the case applied to an 'hire purchase contract' somewhat different to a simple contract. I am sure the OFT would have modified the Guidance on SB if it felt there was relevance here.

 

Also as the vast majority of the matters we see here are quickly defaulted and terminated the 'case law' will have a very minimal effect any way if it is applied.

 

So far since that Appeal Court judgement I have not seen one single instance of a DCA refuting a statute barred declaration based upon it.

 

This applies to what I've seen on CAG and elsewhere.

 

It is hard for me to comment on that as I'm new to CAG. Do you mind me asking, as you keep mentioning it, what other experience you have within debt management? Apologies if this is in the wrong place, but it's the only way I know, so I've asked! I looked at your profile, and it refers to an event in recent times, so I assume your experience outside CAG comes from that?

[Peterbard]

How can it be if a new contract was never made and the last payment was made in April 2008 and nothing since? All I thought Nationwide had done passed it onto a dca..... The DMP was cancelled when the last payment was made[/QUOT]

 

It is not so much a matter of a new contract being made, as the old one not being ended.

There is nothing wrong with you contending that the agreement is statute barred, as said it is for them to show that it is not. However if they have not demanded full payment until recently they may contend that the cause of action was the termination date of the contract.

 

Dodge

[Peterbard]

Dodge - if the OP contends the debt is SB, and is proven wrong, would this be seen as acknowledgement of the debt, as it would in writing and signed by the debtor as required by the act? This would then reset the 6 years. I may well be wrong - just asking.

[Peterbard]

It depends on how the reply is stated, "I deny knowledge of any actionable debt", would probably do. Acknowledgments have to be pretty black and white fortunately, earlier case law has it that an acknowledgement must contain proof of intention to pay, later cases have diluted this, but there must be a real admission of liability.

[BRIGADIER2JCS]

Dodge - if the OP contends the debt is SB, and is proven wrong, would this be seen as acknowledgement of the debt, as it would in writing and signed by the debtor as required by the act? This would then reset the 6 years. I may well be wrong - just asking.

 

No a properly worded SB declaration cannot be seen to affect the SB 'clock'.

 

Acknowledgments MUST be an Unequivocal Admission the A Liability Subsists

.

OFT Guidance 2003/2006 updated Nov.2012.

[Peterbard]

Rhetorical question! Just ensuring we understood the need for correct wording on the SB letters. The act states Acknowldgement of the debt signed by the debtor I believe. Case law was black and white, and is now grey.

[Peterbard]

I think the key is acknowledgement of the debt, rather than acknowledgement of an agreement, which may or may not encapsulate a debt.

 

Sorry answered your rhetorical question

[BRIGADIER2JCS]

Rhetorical question! Just ensuring we understood the need for correct wording on the SB letters. The act states Acknowldgement of the debt signed by the debtor I believe. Case law was black and white, and is now grey.

Refer to the debt the amount and the original creditor

 

I do not acknowledge any debt to xxxxxx or any company it may claim to represent.

 

I have concluded that the alleged debt is statute barred and I will therefore not make any payment or offer of payment now or in the future

I remind xxxxxxx that if it should dispute the status the alleged debt, the onus of providing unequivocal proof falls entirely upon xxxxxx.

 

You can also remind them of annexe B OFT Guidance on Debt Collection.

 

Only one known so far to need a 2nd hit.

[Peterbard]

As long as things are clear, none should need a second hit. If they do, it's because the DCA is at fault.