SARN- ABBEY NATIONAL : LUSENET : Repossession : One Thread

I SARN'd the Abbey National and Dibb Lupton after receiveing a demand for a five figure sum from Dibb Lupton acting for the Abbey for a shortfall.

The Abbey have replied and I have heard nothing from DLA (the 40 days has elapsed). There are possibly hundreds of pages and I've sifted through them and it would seem that the Abbey have been paid a redemption payment from a mortgage guarantee policy. The cost of this policy was included in the amount they loaned me. The redemption payment is in excess of the amount DLA are chasing me for and the account appears to have a credit.

I cannot find a letter from the Abbey telling DLA to chase me and I thought if it was the insurance company who wanted to recoup the money they paid the Abbey, that DLA would show the name of the insurance company as their client!

What should I do?

Do I phone the Abbey and ask them directly if they are looking for money from me?

Do I just sit and wait and see what happens next.

I should also mention that my home was sold below the market price and I have no info in the SARN re how it was marketed.

Can anyone advise me please? Is there a likliehood that the insurance company will chase me for this "debt" after 4 years?

-- scared person (, July 14, 2002


*********** I am not a lawyer - this is only my opinion *********** The insurance company have granted the Abbey "Rights of Subrogation" which is a fancy legal term for allowing another party to collect the debt on their behalf. Yes "they" (the insurance co and also the Abbey) will chase you after only four years - primarily because the insurance co wants to recover as much of what it paid out to the Abbey as it can (usually to cover spurious admin costs) and the Abbey want what I consider to be blood money - their % cut of the amount they recover. They have instructed DLA and are DLA's client. The Abbey have been paid - and I would argue that the MIG payout they are chasing for the insurance co is a debt simple. Creditors have six years to chase debts simple - but I should stress this MIG theory has yet to be tested in court. The MIG payout was not as a result of a transaction made under seal as with a mortgage - it's an insurance claim, pure and simple. The nature of the "debt" changes when the Abbey are paid an amount under the MIG policy as far as I am concerned. The thinking is that satisfaction of the primary debt, the shortfall, has occurred when monetary consideration changes hands between the insurance co and the Lender. It would be the same if your rich Granny coughed up and paid it - the shortfall is satisfied. The hiccup in this is the Rights of Sub issue, which may or may not grant the insurance co all the rights of the Lender. I cannot see this as being a valid argument, if the shortfall is already paid in full or in part by the MIG. At the outside Rights of Sub could only apply to the portion of the shortfall not covered by any MIG payout. Specialty debts (which they will argue the MIG payout is) have a twelve year shelf life under the 1980 Limitation Act. There is some debate as to whether this twelve year time limit is overturned by a Money Judgement Order and can subsequently be extended indefinitely. Whilst I do not agree that this could be upheld in Court,it would be remiss of me not to mention it. I believe a concerned solicitor maybe looking at this issue.

I would write back to the Abbey and ask them for the missing marketing information as your house was undoubtedly undersold. I would also ask which insurance company has granted them Rights of Subrogation, although I am sure other Abbey victims can tell you on this BB. If there is no real shortfall to recover aside from the MIG payout, I would stand firm on this one. They may eventually settle for a fraction of the MIG payout, which I would reluctantly suggest you think about AFTER the Appeal Court rules on those cases currently before them in July. I hope and pray that one of them may finally address the 6/12 year rule.

-- Too scared to say (, July 14, 2002.

I have been going back over postings and have found this interesting one on MJOs from a posting by Eleanor Scott:

NAMV set great store on asking to see the Money Judgement Order, on the grounds that (a) if there is no MJO there can be no debt; and (b) most lenders didn't bother getting MJOs in the late eighties and early ninties, especially where voluntary repossessions were concerned. It is my understanding that when some lenders have been asked to produce MJOs, they have suddenly decided that it is 'uneconomical' to pursue the claim any further (please note: they don't drop the claim, they write it off). I believe that Peter Walker tries the same 'strict proof' approach but with MIGs (mortgage indemnity guarantee policies), notably those which pre- date 1993. --------------------

Taken from a posting dated Oct 14 under the title "experience"


-- M Amos (, July 15, 2002.

Just a comment on money judgments.

If a lender obtained a money judgment at the same time as getting a possession order, the Limitations Act 1980 does not apply (Lowsey v Forbes (House of Lords 29.7.98). This case held that s24 LA '80 (actions to enforce judgments) covers new court proceedings but not the enforcement of an existing judgment.

The enforcement of judgments is covered by the relevant rules of court.

This means that where a lender has got a money judgment, there is no limitation period applicable. All the rules of court say is that if an existing judgment is to be enforced by execution against goods (cty ct bailiff or High Ct sheriff) after more that 6 years, leave of the court must be sought first.



-- Guy Skipwith (, July 25, 2002.

Guy, depressing though your advice is, would this mean that voluntary repo's fall outside this? Lenders generally don't get MJO's in these cases do they? It would mean that if the Lender had neglected to obtain a MJO within 12 years of default they would be out of time and further (fingers crossed) that if the MIG portion is ruled as statute barred after six years,an awful lot of us will shortly no longer have an alleged shortfall to worry about!

-- Too scared to say (, July 25, 2002.

Thanks for the information you sent Guy - my yahoo account is playing up and I can't seem to send anything at the moment. It would seem that my original argument about not being able to extend the twelve year period indefinitely is wrong. A MJO has to be obtained and then it appears they can pretty much do what they like from thereon in. Where a person (or their advisers as in my case)inadvertently or explicitly acknowledges the debt within an existing limitation period, the time clock starts again. Wow. I am still a little unclear about Voluntary Repo shortfalls that are not acknowledged in any way. I must admit I never thought I would see myself write that I have a feeling I am utterly screwed. I will post a pointer to this thread so that people read it.

-- Too scared to say (, July 25, 2002.

Hi again

The thing with a money judgment is that once a creditor has got one (unless it can be set aside (e.g. a default judgment where you never received the claim form)) LA '80 doesn't apply at all where the creditor is seeking to enforce the judgment. Its all down to the rules of court.

LA '80 applies to getting a judgment rather than enforcing an existing one (there's a bit more on the thread above).

If a judgment creditor is trying to use the bailiff or sheriff after more than 6 years inactivity, the court will not automatically give leave.

If the creditor had known where you lived for a number of years but still done nothing, the court might well refuse leave.

But, on the other hand, if the creditor wasn't able to do anything because you were abroad, the court would probably give leave.

If the lender has not obtained a money judgment (I have never heard of this with a voluntary repossession other than when they eventually sue for the shortfall), then yes, if they do not issue proceedings within the limitation period, the debt is statute barred - subject to acknowledgment and part payment.

One interesting issue relating to money judgments - I have an article written by a district judge in a legal journal that says that if a lender obtains a money judgment along with a suspended possession order it can charge no further interest. He says that lenders who obtain money judgments have "shot themselves in the foot". (have only got it on paper unfortunately).

This is probably a bit of a radical view but might warrant further investigation.

I have posted some thoughts on the position of MIGS on the thread above - my fear is that subrogation will prevail. I like the argument that the contract of insurance is a simple conyract - it certainly isn't a specialty. I haven't heard any decent legal argument and don't know if it is at issue in CA.

Take care and keep on keeping on


-- Guy Skipwith (, July 25, 2002.

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