I am wrong about extending limitation periods-please readgreenspun.com : LUSENET : Repossession : One Thread
Guy Skipworth has posted the relevant information below in the "SARN -Abbey National" thread. Having read all the info he has sent me and researched it more myself over the last two weeks, I have to concede that under current legislation the Lender's can extend a limitation period where they get a MJO with the possession order. Sorry folks - please be very very careful not to acknowledge the alleged debt if they suddenly crawl out of the woodwork after years of silence. If it's within twelve years of default and they go and get a MJO, it looks like they can repeatedly extend this time limit for recovery. My only recourse is to sue the solicitors who acknowledged the shortfall in my case without my permission, and went on to give me wrong and devastatingly ruinous advice eleven years ago. If I had the dosh to do that I wouldn't be in this mess now would I? Besides which I have already tried, and the QC who looked at it gave me a fee estimate which would need a Live Aid benefit to cover costs.
Yours feeling very beaten today.
-- Too scared to say (firstname.lastname@example.org), July 25, 2002
How do I know if there is a MJO against me? Or how can I find out?
-- (email@example.com), July 25, 2002.
I would like to try and clarify the position regarding acknowledgment and part payment, and the situation where a lender has obtained a money judgment.
1. Acknowledgment and part payment.
-- (firstname.lastname@example.org), July 25, 2002.
Sorry, I hit the wrong button and posted a very incomplete message.
I'll try agian.
I would like to try and clarify the position regarding acknowledgment and part payment, and the situation where a lender has obtained a money judgment (plus MIGS).
1. Acknowledgment and part payment.
Unless the LA '80 provides for a 'lomgstop' (i.e. a period after which no claim can be brought in any circumstances - there are no 'longstops' for debt cases), a limitation period can be extended indefinately by the debtor making a written, signed acknowledgment of the debt.
Where this happens, an existing limitation period is restarted. A signed acknowledgment only starts time running again against the person who makes the acknowledgment. There is a wealth of case law on what does and what does not amount the an acknowledgment.
Part payment (and perhaps the offer of payment) is a form of acknowledgment. It is different from an acknowledgment in that it starts time running again not only for the person who made the payment but also for any other joint debtors (including guarantors). the 'apparant' logic behind this is that all joint debtors benefit from a payment (because the debt reduces) so they are all bound by it.
One difficulty that stems from this is where there was a joint mortgage and the 2 people have seperated - no unusual, unfortunately, in situations of multiple debt and repossession. It is often difficult to ascertain whether a former partner has made a payment to the lender. A SARN should, however, disclose a statement of account which would show all debits and credits on the account.
Once a limitation period has expired, it cannot later be revived by acknowledgment or payment.
There are seperate rules that relate to arrears of interest (and rent arrears) - a payment towards interest is deemed to be a payment of capital and will not therefore restart limitation periods running afresh for other interest owed.
It should also be noted that if a principal sum is statute barred, so is any interest that relates to it (Elder v Northcot).
It may seem unfair that limitation periods can be extended repeatedly and indefinately, but this is the law as it stands.
This means that it is particularly important to avoid acknowledging debts, especially if they may be near the end of a limitation period. It's fine to talk on the 'phone - this cannot be an acknowledgment. If it is necessart to write, it is important to state specificially that liability is not admitted and the debt is not being acknowledged. It is important that solicitors and advisers do not acknowledge debts on behalf of cliemts. There is case law that says that if a solicitor is asked to assist with someone's financial affairs, s/he is deemed to have authority to acknowledge his/her client's debts. It is important that solicitors and advisers are instructed in writing that they do not have authority to acknowledge debts.
Over the years, many individuals, solicitors and adviser have acknowledged debts inadvertently.
2. LA '80 does not apply to the enforcement of debts. There is a section of the Act whih covers "Actions on Judgments" (s24) but it has been held that this only applies to taking new 'action' (Lowsey v Forbes)- this doesn't include enforcement (i.e bailiffs, attachment of earnings orders etc.) but does cover issuing a bankruptcy petition.
Where a creditor has obtained a money judgment, the enforcement of the judgment is covered by the rules of court (CPR). All these say about delay in enforcing judgments is that if more than 6 years has passed, permission of that court must be obtained before the lender can issue execution against goods (county court bailiff or High Court sheriff).
It can sometimes be difficult to ascertain whether a creditor has got a money judgment. Registry Trust can be checked but its records do not go back more than 6 years. A SARN on the creditor should show whether there is a money judgment and a lender can be specifically asked in writing.
The shortfall cases are now being heard in the CA but I do not know when judgment is expected. I expect the judges will want some time to think about!!!
MIGS - a difficult one. there are 2 possibilities.
(i) The principle of subrogation allows the MIG insurer to take over the rights of the lender and vice versa ('to step into his shoes').
The insurer then has all the rights of the lender, including the benefit of the same limitation period that applied to the lender (which is probably 12 years).
(ii) Alternatively, it may be the case that as the contract between the lender and the insurer was a 'simple contract', the insurer only has 6 years to sue where the lender has 12 years to sue, its contract with the debtor being a specialty.
I haven't heard any decent legal argument on this point but suspect that (i) is more likely to be the case than (ii). I don't know if the issue will come up in the CA.
Everything is in limbo at the moment and we wait with bated breath.
All the best to everyone
-- Guy Skipwith (email@example.com), July 25, 2002.
The logical result of Guy's posting being reality would be no hesitation from lenders to rush to court and sue the pants off us. That this isn't happening and that most lenders seem willing to settle for much less than their claim suggests to me that they are by no means convinced they have a watertight case.
I still don't think you should fill in an I&E form unless ordered by a court to do so.
I still think until it is judged otherwise that a MIG payout arises out of a simple contract and is a simple not specialty debt.
Although my lender rejected this argument it was unable to justify it's statement by citing a definitive judgement, because there isn't one.
I still believe that the best way to proceed is to try to find flaws in the administration of the repossession and resale of one's property and engage in meticulous exploration of every aspect of the lenders behaviour.
The longer you can legitimately string this process out (bear in mind that there is no need to respond immediately to the lenders' letters - a week or so to think about it is fine) the more likely that the lender will eventually agree to settle for a 'reasonable' lump sum in full and final payment.
You say that your solicitors acknowledged the debt on your behalf. Presumably you have sought to refute this action in your communications with the lender. Have you tried making an offer in full and final settlement?
-- Gordon Bennet (firstname.lastname@example.org), July 26, 2002.