santander - strange response to SB letter for debt 11yrs old - **WON COMPO**

[renegotiation]

I have a query, which I hope someone can help me with.

 

 

In the Consumer Credit Sourcebook, under Section 7.15 about 'Statute barred debts',

there are numerous references to paragraphs and annexes in the DCG.

I am nigh on certain that this pertains to the 'Debt Collection Guidelines' formerly issued by the now defunct OFT.

Unfortunately, the old OFT website is now completely dead, so I can't check this out there.

 

I have searched elsewhere online, but any copies I have found don't fit with the paragraph numbers quoted in the Consumer Credit Sourcebook. I am assuming that I just can't find the last version of the DCG the OFT issued;

rather than it being a case of wrong paragraph numbers being listed.

 

 

I have reason to want to see the last version of the DCG the OFT issued,

so if anyone can point me in the right direction I would greatly appreciate it.

Thank you.

Edited September 12, 2015 by renegotiation
Formatting.

[citizenB]

You should be able to obtain archived copies from the internet !

[WindySock]

Archived OFT site with their last version http://webarchive.nationalarchives.gov.uk/20140402141250/http://www.oft.gov.uk/about-the-oft/legal-powers/legal/cca/debt-collection

 

All matches up as far as I can see.

[citizenB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?84273-OFT-debt-collection-guidance&highlight=OFT+Debt+Collection+Guidelines

 

Clicking on the links in the thread above should take you to their archives..

 

Aha.. see WindySock has already provided you with a link..

[mikeymack2002]

You should now be reading the FCA handbook and the CONC rules here https://www.handbook.fca.org.uk/handbook/CONC/

[renegotiation]

You should be able to obtain archived copies from the internet!

 

Yes, exactly what I thought before I looked. Moreover, 99 times out of 100 I will find exactly what I am searching for when I look online. However, after searching for 10 minutes or so, I couldn't find what I thought was the last version. What I did find were some older versions, as mentioned, and a lot of material discussing the said guidelines. As this all involves an official complaint that might have to go to the F.O.S., then I thought I should ask, as it's always better to be safe than sorry.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?84273-OFT-debt-collection-guidance&highlight=OFT+Debt+Collection+Guidelines

 

Clicking on the links in the thread above should take you to their archives. Aha.. see WindySock has already provided you with a link..

 

Thank you.

 

 

 

Archived OFT site with their last version. All matches up as far as I can see.

 

http://webarchive.nationalarchives.gov.uk/20140402141250/http://www.oft.gov.uk/about-the-oft/legal-powers/legal/cca/debt-collection

 

Yes, that does all match up. Thank you.

 

 

 

You should now be reading the FCA handbook and the CONC rules here https://www.handbook.fca.org.uk/handbook/CONC/

 

What baffles me is why the F.C.A. didn't just incorporate everything from the DCG into the CONC. There didn't seem to be much more left for them to transfer over from what I could make out. I think that they have just complicated matters unnecessarily here. Anyone else have any thoughts on this?

[olihardy]

remember FCA and therefore CONC only relates to FCA regulated debt - other debt such as utilities and telecoms is now pretty much unregulated, can't believe the FCA didn't take control of the whole piece

[renegotiation]

Crikey, how time flies! I advised the person concerned with this issue to go to the FOS, but they asked me to check on this forum first for some suitable advice as well. The person concerned is now 82 years old and recently went over a lot of paperwork involving a whole host of old debts. It was all well statute barred and, although they weren't hearing much from any of the companies concerned, decided it would be best to send out statute barred letters en masse. What occurred afterwards was quite remarkable in my opinion.

 

Now, most of the debt had been bought by DCA's, but there were a few instances where credit card companies still owned the debts. Every single one of the DCA's concerned, even the ones that had never gone 6 years without sending a letter, duly wrote back and said they were permanently closing the relevant accounts. I would add that I am suspicious 1st Credit tried to be a bit sneaky, by not doing so to begin with though, as when we phoned them up chasing the matter, on 3 separate occasions, they tried to fob us with verbal assurances. All the credit card companies said they were permanently closing the relevant accounts too, apart from just one.

 

What I found incredible was that this company hadn't written to the person concerned in any form since 2004, when a default notice was sent out, which was made very clear in the statute barred letter that was sent to them. The person concerned never heard from any DCA either. Their response stated that they wouldn't be taking legal action, but that they were still entitled to send annual statements, had been sending annual statements and would continue to send annual statements. We found this quite amusing, as the odds of not receiving an annual statement for 11 consecutive years are probably greater than winning the revamped national lottery. However, we knew full well how companies can lose the plot some times and didn't take it too seriously.

 

The person concerned then wrote back and emphasised that they hadn't changed address for over 30 years and had never received any correspondence from them since 2004. They questioned what motive they had for still wanting to write, especially when they were now over 80 years old, when they hadn't done so for over 11 years. We expected to finally get some common sense from them. They responded by totally ignoring everything we said, especially about them not having sent anything in writing since 2004, and insisted that they would still be writing to the person concerned about the debt. So, aside from feeling gobsmacked, my questions are am I right in thinking this should go to the FOS and, if so, is it still worth sending the numpties one final letter beforehand? Thank you.

[renegotiation]

Well, no one seemed to have any further ideas, so this did get sent off to the FOS in the end. I will update the thread after the case is concluded.

[citizenB]

I would say yes, escalate a complaint to the FOS - it is my understanding that once a "debtor" has advised the Creditor that a debt is statute barred and will no longer be making payments - to then continue demanding payments would amount to harassment, I would have thought ?

[silverfox1961]

CitizenB is correct. Once a creditor has been told that the debt is Statute Barred and they accept it as so, they MUST cease collection activities

 

The proof

 

http://tinyurl.com/j67m38k

 

see 7.15.8

[mikeymack2002]

Other information is available in CONC rules in s2 s7 s9

Link on the front pages..

 

If you intend on making complaints you should exhaust the DCA'S own complaints procedure. You then get a final resolution letter then escalate up.

[renegotiation]

As I saw it, a company was still allowed to pursue a statute barred debt, if they hadn't lapsed in requesting repayment from the debtor for a period of longer than 6 years. Anyhow, it's all irrelevant when it comes to this case, as the creditor never made any contact with the debtor for a whopping 11 years, which only changed after the debtor made contact with the creditor. At the very least, we did have a good, hearty laugh after reading all of their rubbish.

 

I am still a bit miffed as to why they are behaving like this. We put it to the Ombudsman that perhaps they totally lost track of everything, then simply adopted the policy of chasing anyone that contacted them first? I know this sounds a tad outlandish, but does anyone else think it might be a possibility? It is all incredibly bizarre. I have decided, with full authority from the account holder, to copy and paste all of the correspondence below. Enjoy...

 

 

 

Dear Sir/Madam,

I do not acknowledge the above debt to you or any other company or organisation that you claim to be representing. You did actually last write to me way back on 27th July 2004, some 11 years ago, but just for the avoidance of any doubt I am now formally declaring the said debt statute barred. I would point out that under the Limitation Act 1980 Section 5:

 

"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 would also point out that in their Consumer Credit sourcebook the Financial Conduct Authority states the following rules: "...a firm must not attempt to recover a statute barred debt in England, Wales or Northern Ireland if the lender or owner has not been in contact with the customer during the limitation period." 7.15.4

 

"A firm must not continue to demand payment from a customer after the customer has stated that he will not be paying the debt because it is statute barred." 7.15.8

 

The last payment or acknowledgement of this debt was made over six years ago and no further acknowledgement or payment has been made since that time. Unless you.can provide evidence of payment or written acknowledgement from me in the relevant period under Section 5 of the Limitation Act, I suggest that you are no longer able to take any court action against me to recover the alleged amount claimed. I am genuinely sorry about this, it's very unfortunate, but I honestly don't have a penny spare. I needed to ensure total closure on a few matters too. I await your written confirmation that no further contact will be made concerning the above account and, just for the avoidance of any doubt, confirmation that this matter is now permanently closed. A copy of this letter is being retained and will be carefully filed. It is being sent recorded delivery as well, so that proof of receipt by your company can also be obtained and retained. I look forward to hearing from you.

Yours faithfully,

Mr. ****.

 

 

Dear Mr. ****,

thank you for your letter dated ****, in relation to your Cahoot Credit Card.

 

Summary of your complaint

 

You let us know that you do not acknowledge the debt in relation to the above account. You state that the debt is statute barred and under the Consumer Credit sourcebook, you are no longer liable for the debt as we have not contacted you.

 

Summary of my resolution

 

I agree that if a debt is statute barred the debt cannot be enforced through the courts. I would like to assure you that we are not going to take legal action to enforce this debt. However, even if a debt is statute barred it does not mean the debt no longer exists (with the exception of agreements made under Scottish law) and we are entitled to send statements to the customer to inform him of the current balance of the account.

 

If I can refer you to the consumer credit sourcebook (17.5.4) which you mention in your correspondence, which states "...a firm must not attempt to recover a statute barred debt in England, Wales or Northern Ireland if the lender or owner has not been in contact with the customer during the limitation period." I can confirm that we sent annual statements to you informing of the balance owed. These letters have been sent to the address that we hold on file and I must advise that if you have moved address since the account has been closed; it is the customer's full responsibility to update us with the relevant address.

 

I also add that the consumer credit sourcebook states under section 7.15.2 "In England, Wales and Northern Ireland, a statute barred debt still exists and is recoverable" and 7.15.5 "If the lender or owner has been in regular contact with the customer during the limitation period, the firm may continue to attempt to recover the debt".

 

Due to the information I have provided, I am unable to uphold your complaint. We will continue sending our correspondence in relation to the debt as the balance of £**** is still owed. I hope you'll be happy with this outcome but if not you have the right to refer your complaint to the Financial Ombudsman Service free of charge - but you must do so within six months of the date of this letter.

 

If you do not refer your complaint in time, the Ombudsman will not have our permission to consider your complaint and so will only be able to do so in very limited circumstances. For example, if the Ombudsman believes that the delay was as a result of exceptional circumstances. the enclosed leaflet has more information about the Financial Ombudsman Service, alternatively you can visit their website www.financial-ombudsman.org.uk

 

Want to talk to us again?

 

If you'd like to discuss any of the above points, please give us a call on 0345 609 3969. Thank you for raising your concerns with us, they will help us to improve and meet our aim to deliver the highest level of customer service.

Yours sincerely,

Mr. ****.

Complaints Handler

C & R Complaints

Enc. Financial Ombudsman Service Leaflet

 

 

Dear Mr. ****,

I am writing in relation to your letter of ****. I would like to draw your attention to where you erroneously stated the following:

 

'l can confirm that we sent annual statements to you informing of the balance owed. These letters have been sent to the address that we hold on file and I must advise that if you have moved address since the account has been closed; it is the customer's responsibility to update us with the relevant address.'

 

Well, this is very strange Mr. ****, but I have been at this address since 1982. This is the same address Cahoot had when I opened the account and the same address Cahoot had when I last got a letter, dated 27th July 2004, about this debt. The letter, a default notice and I have attached a copy to this letter for your perusal, was sent from the following address:

 

[renegotiation]

Cahoot

Debt Management Operations

P.O. Box 398

Sheffield

S9 2GQ.

 

I am sure you will agree, I am sure anyone would agree, that it is beyond the realms of possibility I was sent an annual statement in the post for 11 years running that somehow got lost. I was a chartered account in my working life, auditing firms for the government, and I scrupulously file away all correspondence I receive. Moreover, I often said to my family that I had never heard anything further from Cahoot about the credit card when I periodically reviewed my financial affairs. Now, why Cahoot never once contacted me, after I received the said letter, I don't know and it's not my problem. This is your problem and the variety of technical issues that have dogged Cahoot over the years are well documented. I trust you weren't resorting to blatant lying, but you really should have politely queried this matter with me before making a false allegation, even if it was only an innocent mistake. I accept a lot of people, no doubt, do print off template statute barred letters from consumer websites and might not edit them to suit their specific circumstances. Still, I reiterate, you should have checked with me first, even if you thought that was what might have happened with my letter.

 

At the end of the day, I am fast approaching 82 years old, not in the best of health either, and I am a bit confused as to why you would want to still send me annual statements anyway. You have accepted that I have declared the debt statute barred and I know this doesn't change when I die. My family are well aware of where I store copies of all my correspondence as well. You will ultimately have to write the debt off sooner or later, probably sooner, regardless. So, what motive can you have then? There can't possibly be one; other than wanting to bother someone in their last days for no good reason. For my part, I am genuinely very sorry about not paying this debt, but I suffered a serious debt crisis about10 years ago and have never recovered from it. I give you permission to look at my credit file, just the once, and you will see that I am in more than 3 months of remortgage arrears and that my general situation is very dire.

 

It is only recently that I went over some old debts, putting my affairs in order so to speak, and sent out a few statute barred letters. All of the other letters, aside from the one I sent to Cahoot, were to debt collection agencies. Every single one of them, some without the best reputation let's say, agreed to totally and permanently shut down the account they held on their system. This was despite the fact that a few of them had still been writing to me in recent years. To be frank, I was very shocked that Santander, even if they mistakenly thought that they had been sending me annual statements, were the only ones to not do exactly the same.

 

Now, Santander doesn't.really have a bad name, unlike some of the other High Street banks, so I hope that you will swiftly rectify this unfortunate matter before I resort to publicising this correspondence on all the consumer forums and taking this further with the Ombudsman. Just acknowledge you made an innocent mistake, confirm you are not going to be making any further contact about this debt and we can leave it at that. This is clearly the correct thing to do and there is no need to bring the name of Santander into disrepute. I reiterate, I am shocked this wasn't already done, even allowing for the misconception about annual statements being sent when they weren't. I look forward to hearing from you soon then.

Yours faithfully,

Mr. ****.

 

 

 

Dear Mr. ****,

thank you for contacting us after you received our original response to your complaint dated ****. I am sorry you are unhappy with the decision we previously made about the outstanding balance on your Cahoot Credit Card account.

 

Review of your complaint

 

I've had a look at the details of your complaint and want to let you know that our original decision remains unchanged. Statute barred does not mean that we cannot collect on the debt, it means we cannot take legal action to enforce the debt. Due to this we will continue sending our correspondence in relation to the debt as the balance of £**** is still owed.

 

What happens next

 

This is our final response to your complaint. If you are still unhappy and feel I have not fixed your complaint as you would like, you have the right to refer your complaint to the Financial Ombudsman Service free of charge - but you must do so within six months of the date of our previous letter dated ****.

 

If you do not refer your complaint in time, the Ombudsman will not have our permission to consider your complaint and so will only be able to do so in very limited circumstances. For example, if the Ombudsman believes that the delay was as a result of exceptional circumstances. the enclosed leaflet has more information about the Financial Ombudsman Service, alternatively you can visit their website www.financial-ombudsman.org.uk

 

I'm sorry this is not the outcome you wanted but I hope my letter explains my decision.

Yours sincerely,

Mr. ****.

Customer Resolutions Manager

Enc. Financial Ombudsman Service Leaflet

[citizenB]

TBH, engaging them in lengthy correspondence, which they will most unlikely be unable to understand, even if they bother to read it, is not a good idea. Statute barring occurs when there has been no payment from the 'debtor' or acknowledgement of liability - in writing - for 6 years from the cause of action. It has nothing to do with the Creditor sending statements or keeping in contact.

 

Once you have told the creditor that you will not be paying because the debt is statute barred - there is no longer any requirement for you to continue communicating. Just open the letters to ensure they have not decided to foolishly issue a claim - at which point if they were to do so, you would have an absolute defence.

[renegotiation]

TBH, engaging them in lengthy correspondence, which they will most unlikely be unable to understand, even if they bother to read it, is not a good idea.

 

Yes, but if one is to ultimately go to the FOS, the it is surely best to at least try to lay out everything for them beforehand. The first letter was pretty much a template letter, though it was of course edited to suit. We definitely thought it was appropriate to at least send one further letter. Furthermore, from experience, we have usually avoided going to regulators, whatever the company and industry might be, by persevering a little bit. It can save a lot of time and doesn't often waste much time.

 

 

 

Statute barring occurs when there has been no payment from the 'debtor' or acknowledgement of liability - in writing - for 6 years from the cause of action. It has nothing to do with the Creditor sending statements or keeping in contact.

 

Yes, Santander aren't disputing that though. We are simply saying that they should no longer be making any further contact, due to them not writing to the debtor since 2004, and they are insisting that they will do so. We don't want to have them start writing again after 11 years. For me everything hinges on this bit of the CONC:

 

"...a firm must not attempt to recover a statute barred debt in England, Wales or Northern Ireland if the lender or owner has not been in contact with the customer during the limitation period." 7.15.4

As long as the FOS accept that they haven't been sending annual statements, then they don't have a leg to stand on and should be ordered to go forth and multiply. We really don't believe that Santander are confused here and feel that they have resorted to blatant lying. We don't feel that the letters sent to Santander were cocky at all and it was made clear that the debtor regretted the whole situation. Santander really should have gone away graciously, especially given the age of the debtor.

 

It such a cop out on their part to come up with this 'annual statements' garbage. They don't have to falsify any letters and can insist the system sent the statements out. Still, they never sent us any copies of these mysterious annual statements. Let us see what the FOS adjudicator says then. I can see it all now:

 

'Hear ye, hear ye. I find that on the balance of probability, millions to one, that Santander/Cahoot did send you annual statements for 11 years running. Your postman must have nicked them all.'

 

 

 

Once you have told the creditor that you will not be paying because the debt is statute barred - there is no longer any requirement for you to continue communicating. Just open the letters to ensure they have not decided to foolishly issue a claim - at which point if they were to do so, you would have an absolute defence.

 

Yes, we certainly won't be communicating with Santander any more, especially after having gone to the FOS with everything. We will of course open all further letters, assuming that they do send any more. As long as the FOS do their job, then there shouldn't be any further letters though. I still find the whole situation so bizarre.

[renegotiation]

Well, after being assigned an adjudicator by the FOS, exchanging some explanatory emails too, we eventually got this email through.

 

 

Dear Mr. ****,

I apologise for my delayed response, I was out sick last week. Thank you for your detailed email, I’ve received some information from Santander but not enough to help me form an opinion on how to put things right.

 

However, I’d like the opportunity to investigate whether Santander has sent you annual statements for the last 11 years and if it can evidence this. Therefore, I’ve asked for evidence of all the correspondence that was sent to you about this debt. As I believe a part of your complaint is that you want Santander to admit it hasn’t contacted you about this debt. I understand you want your complaint to be resolved as quickly as possible. I believe, I should be able to contact you with an update by Monday 7 March 2016. If for any reason this will be delayed I’ll let you know.

Yours sincerely

Adjudicator|Financial Ombudsman Service

We then got the following email through about a week later.

 

Dear Mr. ****,

 

your complaint about Santander UK Plc

 

Thank you for waiting while I’ve been looking into your complaint. I’ve now looked at all the information that you and Santander have given me. I’m writing to let you know how I think the situation could be sorted out.

You wrote to Santander to formally declare a Cahoot credit card as statute barred as you had no contact about the debt since 2004. You’re unhappy as Santander said that it had sent you annual statements and that it would still pursue the debt.

 

Santander has said that it would like to sincerely apologise for not taking the time to address your concerns in your letter dated 20 June 2015. Instead it treaded it as a complaint and gave you incorrect information, it recognises that it could’ve been handled better. The credit card defaulted in 2004 however, it was never passed to a debt collection agency. In 2010 it was moved to Moorcroft who act as agents on behalf of Santander. However, no action was taken on the debt. Santander has confirmed the debt is no longer recording on your credit file.

 

Santander has said that it would like to confirm that it hasn’t contacted you since 2004, and agrees that the debt is statute barred in time. Santander has confirmed it holds no claim over the debt and it will not contact you to collect it. For the distress and inconvenience caused Santander has offered to pay you £100 compensation as a way to apologise to you. I feel this is a fair and reasonable offer and in line with what this service would recommend.

 

what happens next

 

You now need to let me know if you agree with what I’ve suggested. If you do, then please sign and date the enclosed form and send it back to me by 18 March 2016. Alternatively you can let me know by confirming by email that you’re happy to accept the offer. I’ll then let Santander know so they can arrange to pay you £100. But if you don’t agree with what I’ve said – and you have any new information you’d like me to look at – then please let me know as soon as possible.

 

If we don’t hear from you by 18 March 2016, we might not be able to look at your complaint again. So if you want to reply but you think you’ll need longer, please tell me as soon as possible. In every case, both the business and their customer can ask an ombudsman to make a final decision. But I think it’s unlikely the outcome would be different – unless there’s any important information that you haven’t already given us.If you have any questions, please get in touch.

Yours sincerely

Adjudicator|Financial Ombudsman Service

 

 

Needless to say the offer was accepted, but I am still amazed how it all got this far. The second very thorough letter was sent to Santander at the time, right after the debt was first formally declared statute barred, to set them straight and to specifically prevent this situation from progressing any further than it needed to. However, they just talked rubbish and dug their heels in.

It then gets to the FOS and as soon as they are asked for 'evidence' of sending out any correspondence since 2004 they just caved in. Not only that, it seems they knew exactly what had happened all along! Just bonkers. What possible motive did they have for behaving for this? I still don't get it and, given the age of the debtor, I consider it very bad form on their part. Oh well, such is life... On reflection, maybe the thread title could be changed to something more relevant? Thank you to everyone who contributed.

 

P.S. I dearly would have liked to know what the adjudicator would have said if Santander hadn't caved in, as my faith in the FOS isn't that great to be honest. One can only speculate on that now though.

[dx100uk]

at the end of the day

if you don't enter or initiate pointless letter tennis

these situations would not be an issue.

 

satans bank are quite correct in stating that in E&W statute barring simply means

that any judgement that might be obtained via a court cannot be enforced

so thus such claims are not normally issued by the original creditors

nor can letters be sent relating to threats of court action.

 

[doesn't stop a dca from doing it though to an old address and hoping for a non contested default rubberstamped judgement

where nothing is checked mind - just for any future readers.!]

 

they can however ask for payment

and offset should the debtor be stupid enough

to allow funds to be held in other accounts with the same creditor

or 'group'..

 

you can equally ask them to go away

but better to not respond

 

good £100 compo though.

 

 

dx

[dx100uk]

I've retitled this as your suggested

and moved it to the satans bank forum

dx

[renegotiation]

at the end of the day if you don't enter or initiate pointless letter tennis

these situations would not be an issue.

 

I can well appreciate the principle of what you are saying there, but please bear in mind the age of the debtor and the fact that he wanted to have a sense of total closure on what he saw as outstanding issues. Moreover, apart from 1st Credit seemingly acting a bit silly for a little while, Santander were the only company to respond in the manner that they did. He never ever expected to encounter such obstinacy. .

 

they can however ask for payment and offset should the debtor be stupid enough to allow funds to be held in other accounts with the same creditor or 'group'.

 

Yes, but as I understand it, this is only if there wasn't a 6 year gap in them asking for payment. As per the CONC:

 

"...a firm must not attempt to recover a statute barred debt in England, Wales or Northern Ireland if the lender or owner has not been in contact with the customer during the limitation period." 7.15.4

 

So, a debt can be both statute barred with a company still entitled to ask for payment and statute barred with a company no longer entitled to ask for payment. This all hinges on whether the company concerned also ceased asking for payment, during the 6 years that the debtor never acknowledged or made payment towards the debt. If a company did resume asking for payment after such a hiatus, then they wouldn't be breaking the law, but breaching debt collection guidelines. It all seems pretty clear to me and I apologise if I have misunderstood anything..

 

If anyone has any interest in another bizarre case that has ended up with the FOS, where the FOS is now also being ridiculous in my view, then feast your eyes on this thread.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?466714-Paypal-Account-Can-NEVER-Be-Closed.-FOS-Adjudicator-Agrees.&p=4920315#post4920315

 

All of that, sadly, only reinforces this comment I made in my previous post:

 

I dearly would have liked to know what the adjudicator would have said if Santander hadn't caved in, as my faith in the FOS isn't that great to be honest. One can only speculate on that now though.

 

So, is it the case that the FOS would have probably found in Santander's favour, if they hadn't finally relented? I would humbly suggest that it is more likely to be true, than unlikely.

[dx100uk]

Its either or not both..

If the debtor makes no contact/payment in 6yrs its sb'd

Matters not what the owner does nor sends

Read it properly

 

As for your other thread

 

You seriously have gotten some weird ideas on things

Not sure what sites you read but ......

 

Dx

[citizenB]

Pleased to see that you have some compensation out of this hassle