Limitation Act 1980: Let's knock it on the head

[alanfromderby]

No...the First Right of Appropriation is that - it does not matter what position your account is in. The only stipulation is that you have to serve the FROP before the money is due to hit your account. It is nothing to do with your account T&C's, it goes back to the very beginning of banking law.

 

The other issues you raise I must leave to those with more knowledge of contract law.

[johnhn]

ok, interesting! Very interesting indeed! thanks!

 

is there a particular pro-forma for serving this?

[alanfromderby]

Not that I am aware of.

 

You would just need something along these lines - ideally about 7 days before the transaction:

 

 

I am writing to inform you that a payment of £xxxx, is being made into my account on xx/xx/xx, which relates to wages/benefit etc.

 

I hereby give notice that I wish to use my First Right of Appropriation in relation to this money, for the following:

 

[Give a breakdown of the how you wish to spend the money - ensuring it totals the amount you wish to withdraw]

 

The money will be withdrawn from the account on the day it is deposited at [insert branch or cash machine]. Please ensure that nothing interferes with the authorisation of this transaction.

 

 

I would probably advise taking it to the branch and getting someone to sign for receipt of the letter.

[johnhn]

thanks. of course i'm not too optimistic that i'll be able to go to a cash machine, or a chip/pin thing, and actually have the transaction authorised...

 

and it won't stop them charging me at least £150 per month (plus interest) on that account alone...

 

and i have to plan a week in advance the precise location and value of every transaction...

 

i hate the bastards!

 

*edit* i suppose it wouldn't be enough to say that i shall withdraw £20 per day for travel/living expenses?

 

it's my ****ing money goddamnit!

[alanfromderby]

I think I would be inclined to go elsewhere.

[johnhn]

hello. bit calmer this morning.

 

I think I would be inclined to go elsewhere.

 

as in "another bank"? i suppose the whole issue has given me a sort of tunnel vision regarding hsbc. i wonder how difficult their self-perpetuating bad credit behaviour scoring will make it for me to up-sticks.

 

(goes off to research other banks)

[johnhn]

back on topic.

 

i keep thinking i've got this straight in my own mind, and then i read:

 

"

The six-year rule

 

For bank charges claims, you can claim back no further than six years."

 

(from Best credit cards, cheap mortgages, personal loans, savings accounts, house & car insurance - The Motley Fool UK)

 

I've read this sort of statement time and again. Is this terrible advice?

 

And again, I would ask, is the contract on a current account a simple contract, or a contract in deed?

[alanfromderby]

My understanding is that current accounts are simple contract - mortgages are sealed under deed.

 

However, charges made on a mortgage account are still subject to six years - as the twelve years limit only applies to the capital sum.

 

Now, having said all that, there is an argument that claimants can use section 32 of the Limitation Act in order to extend the time limit. This argument is developed in several threads on this, and the Data Protection Act sub-forum.

 

My personal opinion is that section 32 does apply, but others are not so sure - until it is tested properly in court it is not possible to give a definitive answer.

[patrickq1]

limitations acts i have put two threads on here alla that explains most of it

also

in 1993 when i asked the bank to commence their action etc, i acknowledged the debt - it runs again and expires twelve years later (six years for other contractual non-mortgage debts) . if and When they write to you , if you have responded to it, or in any way acknowledged it as referring to you, it runs again, and like all debts, it will simply keep running with each acknowledgement. This is why shortly before the expiry of a limitation period, you get a postcard through your door asking you to ring a number and ask for whoever. You acknowledge the existence of the debt and revive the limitation period. It is why Bailiffs, when they cannot recover the full costs simply ask you to sign a document to say 'they have visited' or to acknowledge they have have recovered certain items from you and so on. Acknowledge nothing, Once a debt becomes 'timed out' through limitation, it does not subsequently revive

Limitation Act 1980 (c. 58) - Statute Law Database

[patrickq1]

20.

Time limit for actions to recover money secured by a mortgage or charge or to recover proceeds of the sale of land.

— (1) No action shall be brought to recover—

(a)

any principal sum of money secured by a mortgage or other charge on property (whether real or personal); or

 

(b)

proceeds of the sale of land;

 

 

after the expiration of twelve years from the date on which the right to receive the money accrued.

 

(2) No foreclosure action in respect of mortgaged personal property shall be brought after the expiration of twelve years from the date on which the right to foreclose accrued.

 

But if the mortgagee was in possession of the mortgaged property after that date, the right to foreclose on the property which was in his possession shall not be treated as having accrued for the purposes of this subsection until the date on which his possession discontinued.

 

(3) The right to receive any principal sum of money secured by a mortgage or other charge and the right to foreclose on the property subject to the mortgage or charge shall not be treated as accruing so long as that property comprises any future interest or any life insurance policy which has not matured or been determined.

 

(4) Nothing in this section shall apply to a foreclosure action in respect of mortgaged land, but the provisions of this Act relating to actions to recover land shall apply to such an action.

 

(5) Subject to subsections (6) and (7) below, no action to recover arrears of interest payable in respect of any sum of money secured by a mortgage or other charge or payable in respect of proceeds of the sale of land, or to recover damages in respect of such arrears shall be brought after the expiration of six years from the date on which the interest became due.

 

(6) Where—

(a)

a prior mortgagee or other incumbrancer has been in possession of the property charged; and

 

(b)

an action is brought within one year of the discontinuance of that possession by the subsequent incumbrancer;

 

 

the subsequent incumbrancer may recover by that action all the arrears of interest which fell due during the period of possession by the prior incumbrancer or damages in respect of those arrears, notwithstanding that the period exceeded six years.

 

(7) Where—

(a)

the property subject to the mortgage or charge comprises any future interest or life insurance policy; and

 

(b)

it is a term of the mortgage or charge that arrears of interest shall be treated as part of the principal sum of money secured by the mortgage or charge;

 

 

interest shall not be treated as becoming due before the right to recover the principal sum of money has accrued or is treated as having accrued.

29.

Fresh accrual of action on acknowledgment or part payment.

— (1) Subsections (2) and (3) below apply where any right of action (including a foreclosure action) to recover land or an advowson or any right of a mortgagee of personal property to bring a foreclosure action in respect of the property has accrued.

 

(2) If the person in possession of the land, benefice or personal property in question acknowledges the title of the person to whom the right of action has accrued—

(a)

the right shall be treated as having accrued on and not before the date of the acknowledgment; and

 

(b)

in the case of a right of action to recover land which has accrued to a person entitled to an estate or interest taking effect on the determination of an entailed interest against whom time is running under section 27 of this Act, section 27 shall thereupon cease to apply to the land.

 

 

(3) In the case of a foreclosure or other action by a mortgagee, if the person in possession of the land, benefice or personal property in question or the person liable for the mortgage debt makes any payment in respect of the debt (whether of principal or interest) the right shall be treated as having accrued on and not before the date of the payment.

 

(4) Where a mortgagee is by virtue of the mortgage in possession of any mortgaged land and either—

(a)

receives any sum in respect of the principal or interest of the mortgage debt; or

 

(b)

acknowledges the title of the mortgagor, or his equity ofredemption;

 

 

an action to redeem the land in his possession may be brought at any time before the expiration of twelve years from the date of the payment or acknowledgment.

 

(5) Subject to subsection (6) below, where any right of action has accrued to recover—

(a)

any debt or other liquidated pecuniary claim; or

 

(b)

any claim to the personal estate of a deceased person or to any share or interest in any such estate;

 

 

and the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it the right shall be treated as having accrued on and not before the date of the acknowledgment or payment.

 

(6) A payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder then due, but any payment of interest shall be treated as a payment in respect of the principal debt.

 

(7) Subject to subsection (6) above, a current period of limitation may be repeatedly extended under this section by further acknowledgments or payments, but a right of action, once barred by this Act, shall not be revived by any subsequent acknowledgment or payment.

hope this helps on limitation

n 1993 when i asked them to commence their action etc, i am not sure if i aknowledged the debt ,if i did - it runs again and expires twelve years later (six years for other contractual non-mortgage debts) . When they wrote to me recently, i have not responded to it, or in any way acknowledged it as referring to me,if i did it means it runs again, and like all debts, it will simply keep running with each acknowledgement. This is why from what i have gathered (and should be a warning to others) shortly before the expiry of a limitation period, you get a postcard through your door asking you to ring a number and ask for whoever. You acknowledge the existence of the debt and revive the limitation period. It is the reason why Bailiffs, when they cannot recover the full costs simply ask you to sign a document to say 'they have visited' or to acknowledge they have have recovered certain items from you and so on. Acknowledge nothing, Once a debt becomes 'timed out' through limitation, it does not subsequently revive!

patrickq1

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/123193-patrickq1-hfo-morgan-stanley.html

[mcuth]

In 1993 when i asked them to commence their action etc, i am not sure if i aknowledged the debt ,if i did - it runs again and expires twelve years later (six years for other contractual non-mortgage debts) . When they wrote to me recently, i have not responded to it, or in any way acknowledged it as referring to me,if i did it means it runs again, and like all debts, it will simply keep running with each acknowledgement. This is why from what i have gathered (and should be a warning to others) shortly before the expiry of a limitation period, you get a postcard through your door asking you to ring a number and ask for whoever. You acknowledge the existence of the debt and revive the limitation period. It is the reason why Bailiffs, when they cannot recover the full costs simply ask you to sign a document to say 'they have visited' or to acknowledge they have have recovered certain items from you and so on. Acknowledge nothing, Once a debt becomes 'timed out' through limitation, it does not subsequently revive!

 

Once the debt is statute-barred under the Limitations Act, AFAIK acknowledging it doesn't restart the clock - once it's statute-barred, it's statute-barred and nothing can change that (though of course, it'd be better if you didn't acknowledge it, just send a "this is statute-barred" letter). It's only when it's within the limitation period that the clock is restarted. However, you're right to advise caution when within that limitation period - especially coming to the end of it!

 

Cheers

Michael

[Vulture_Bank]

Banking & Lender Services Legal Update December 2007 - TLT Solicitors

 

patrickq1 is this of interest to you ???

 

bit about a warning to lenders

[gaz2006]

Im helping friend on monday re claim re business claim back to 1996 . Nat West trying to throw out under limitation act . ive read up on this section 32 etc and can see I can say when we knew ait wasnt legal etc but how can I enforce the fact they tried to conceal it ? I also want Nat west Terms and Conditions back to 1996 any ideas where to look ? i have also seen the law cases put by Zoot on the site re limitations anything else I need to be thinking about regards Gaz

[ukaviator]

It maybe an idea to look at this also:

 

http://www.consumeractiongroup.co.uk/forum/cases-library/122870-case-law-misrepresentation.html

[gaz2006]

thanks uk aviator

[ukaviator]

That's ok. I have'nt had too much time to go through this in great detail, but i believe there is something there you could use. Zoot must also believe this, as she posted the case law.

[gaz2006]

is zoot a lady then ???

[zootscoot]

I certainly am

[maybelline]

zoot is a moderator! and brilliant, thats all we need to know isnt it:D

[gaz2006]

zoot is a moderator! and brilliant, thats all we need to know isnt it:D

moderator and brilliant like most women ha ha oops get myself in trouble if im not careful ha ha serioulsy for some reason i thought she was a guy .... soz

[Aequitas]

Section 32 (1) says:

 

... where in the case of any action for which a period of limitation is prescribed by this Act, either—

 

(a) the action is based upon the fraud of the defendant; or

 

 

(b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or

 

 

© the action is for relief from the consequences of a mistake;

 

 

 

 

Paragraph (a) does not apply to bank charges as, even if they are penalties (which is undecided anyway) they do not constitute fraud.

 

In paragraph (b) the important word is "fact". The law is not "facts". Even if it were, not telling someone the law is not concealing it.

 

Paragraph © is trickier as first you need to consider the type of mistake and then the effect of the words "the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it."

 

A mistake can be made if a charge is made for a service that has not been provided. That sort of mistake I think has to be deemed to come to the attention of the customer when he receives his statement. It is reasonable to assume that a customer checks his statements when he receives them and will query any charges wrongly debited. The fact that the charge may have been unlawful if the service had been provided does not come into it.

 

But I think what people have in mind is when a charge has been made on the assumption that it is lawful to make it when it is not. We of course have the difficulty that at the moment we do not know which, if any, bank charges are lawful. Suppose it is decided a specified type of charge is unlawful. That will always have been the law - if that is not the case then no one will be able to recover any such charge that has been made before a court decided it was the law. So, if it was always the law were you deemed to have known it? It would seem not as you would not have been able to discover the law by reasonable diligence until the court case was published. Of course if you could not have discovered the law by reasonable diligence because no one knew it, neither could the bank. However, if you challenged the charge on the grounds that it was unlawful you were right and therefore discovered the law before anyone (including yourself) knew what it was and so the time limit would run from the time you discovered it. But this supposes that a mistake of law is the type of mistake that paragraph © refers to. Someone needs to look at Halsbury's Statutes and see if there is any annotation that clarifes the point.

[zootscoot]

Kleinwort Benson v Lincoln County Council involved a mistake of law and was able to succesfully use s.32 (1) ©