12 year Expiry

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Hello,

My situation is that the 12 years limitation passed in March this year without any legal action being taken, in respect of a 49,000 shortfall claim. Towards the end of March and the beggining of April I recieved four letters, one asking me to settle [Without Prejudice] and the other three reminding me of my " un-coporative nature" and threatening legal action. I filed these letters with the other 40 or so I have recieved since May 1999, I have not responded to any letters for the last couple of years or so, mainly due to the lack of progress when asking for the relevant information. Anyway, does anybody know if I should respond and remind them that their claim is now statute barred, or should I continue to ignore them. Also will they be able to make any entries with any credit agencies aginst me?

Any advice is welcome.

Thank you and good luck! to you all.

-- James Graham (jamesgr707@hotmail.com), May 25, 2003

Answers

Forgive me if I am being dense, but you state that the 12 year limit was reached in March of this year and that you hadn't been contacted up until then.

Then you tell us about the "40 or so" letters you have received since May 1999.

If these 40 or so letters are in respect of your mortgage then you can't claim the 12 years has passed without the lender pursuing the debt (note the subtle difference to taking legal action). In other words, if they have been writing to you before the 12 years is up then you can't claim the 12 year rule has kicked in. After all, it's not the lenders fault that you haven't responded to the letters.

I suspect you've done yourself no favours by ignoring these letters - your best bet would be to read through the advice on this site about how to deal with pursuit of shortfall and then follow it...

-- Chris (chrsh@email.com), May 26, 2003.


James,

I think Chris above is a little confused here. You say that there was a lack of progress when asking for the relevant information, presumably you asked the lender for information earlier? Did you SARN the lender? Even if you didn't reply to any letters this does not stop the 12 year limitation period. The following comes from a solicitor in regard to the 12 year limitation period " Another interesting point held in Lowsley & Forbes was that the provisions of LA '80 under which 'deliberate concealment' postpones the running of time (s32) do not apply to the debtor concealing him/herself but rather to the debtor concealing that a cause of action had arisen. Successfully hiding does not, therefore, stop time running."

If you didn't acknowledge the debt or make a part payment and there was no MJO, and 12 years have passed since the 2nd or 3rd default on your mortgage payments (subject to the terms & conditions of your mortgage) then this alleged shortfall will be statute barred. Was your mortgage a joint one ? An ex may acknowledge a debt by making a part payment. I think that the best thing in your case would be (if what I said before applies) to write to the lender stating thst this alleged debt is now statute barred and see what they come up with. Make sure you still make clear in all your correspondence that you dispute their claim and deny responsibility. As I understand it they will be able to make entries with credit agencies, as you put it. When a debt is statute barred it does not mean it ceases to exist, it does mean though that the creditor cannot use court action to recuperate the loss, the debt just lies there so to speak. I am not a professional adviser so please double check all this with one.

Mark.

-- M Amos (idgrom@hotmail.com), May 26, 2003.


I wasn't confused per se, and I believe that is (in essence) what I suggested...

-- Chris (chrsh@email.com), May 26, 2003.

Thank you for your responses.

The repossesion took place in March 1991.

I was first contacted by the lenders solicitors in May 1999. I intially responded to every letter, I don't hide from anything. Around this time the advice was to claim a 6 year limitation with respect to Hopkinson versus Tupper. I also requested around 10 pieces of information regarding the mortgage and their sale of the property. The reason I stopped corresponding with the solicitors was down to their refusal to send all the information I had requested, I wrote to them explaining that we could make no further progress until all info was released. I cointinued to recieve mail from them which I filed. I did not SARN them as I had always denied liability.

As no MJO was taken out, and no-body has admited liability or made any payments and 12 years has passed since repossesion, am I right in assuming that this claim is now statute barred.

Thank You.

-- James Graham (jamesgr707@hotmail.com), May 27, 2003.


The short answer James is YES!! - good for you!

Stephen

-- (stephen.pooley@ntlworld.com), May 27, 2003.



James,

The answer to your question is as Stephen has told you already "Yes". Well done. Although it's academic now, just in case anyone else is reading, it's 12 years from the 2nd or 3rd default on mortgage payments (subject to mort. terms), which is usually well before repossession.

Mark.

-- (idgroms@hotmail.com), May 27, 2003.


James,

Further to my last email. I know you said that nobody has admitted liability or made any payments. However, what concerns me is that you also said you had been corresponding with the solicitors, it might be wise to check with a legal professional that none of this correspondence amounts to an acknowledgement, this is a murky area, and it's not always clear cut what constitutes an acknowledgement, even, I think, for the courts, I know there is a wealth of case law on the subject. If, though, you have been very careful and always included in every piece of correspondence with them that you dispute their claim & deny liability there shouldn't be any problem, as I understand it.

One other thing I wanted to mention was that when I spoke of the Lowsley & Forbes case in my previous message it was to point out that the limitation period continues to roll even though you weren't in contact with the lender at that time, I was not suggesting you were trying to hide. Let us know how you get on. Good Luck.

Mark.

-- M Amos (idgroms@hotmail.com), June 01, 2003.


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