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  1. #1
    joedempsey's Avatar

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    Default 1st credit help

    morning friends.

    I need a little help with this one my wife has been paying 1st credit since 2007 now they are getting more aggressive and demanding more money.
    now the issue is this debt was an old hfc loan taken out in the 1990s it was stat barred( i think) before she even payed anything to connaughts now 1st credit as they claim in 2007.

    now the letters are saying that they purchased the debt from HFC in 2007 now this is a lie because she's had numerous debt collection agencies chasing this debt before they came along
    in 2007.
    now my concern is if i request a CCA they will try and produce an reconstructed CCA from 2007 claiming this to be valid, when the actual loan was taken out in 1995 ish.

    She has not kept any of the other debt collection letters and there is obviously nothing on her credit file.

    any ideas which way to go?

    Joedempsey

  2. #2
    nemesis45's Avatar

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    Default Re: 1st credit help

    Hi Welcome to LB.
    Please provide the following information.

    1.You mention the possibility that the debt was statute barred prior to contact and payments were started to Connaught which is the collection arm of 1St Credit, the requirement for a debt to become statute barred is 6 clear years with no payment or unequivocal written acknowledgment of the debt. Can you verify this?
    2. this debt does not appear on credit files when did it get removed?
    3. HFC may have assigned the account to DCA's to manage and/or collect the debt without actually selling it on, so 1st Credit may well have acquired the debt in 2007, you have a notice of assignment from HFC or 1st Credit?
    4. Are you receiving statements of the account at least once a year?
    5. Are you aware of the balance now outstanding?
    For establishing the date when this May have become statute barred before Connaught / 1st Credits involvement you need to establish when the last payment was made to HFC or any of the other DCA.s.

    I would be inclined to do a CCA request to 1st Credit as they are required to send a current statement of the account as well.

    As this account was defaulted more than 6 years ago court action is not a prospect.

    There is another option i.e., writing to say that payments are ceasing as it is believed that the debt was statute barred prior to 1st Credit acquiring the debt. ( I can help with a draft letter if needed.)

    nem
    The Advice I Give and Draft Letters Provided Are Drawn From Personal Experience and Career Training And Are Given Freely And Without Liability.
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  3. #3
    joedempsey's Avatar

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    Default Re: 1st credit help

    Quote Originally Posted by nemesis45 View Post
    Hi Welcome to LB.
    Please provide the following information.

    1.You mention the possibility that the debt was statute barred prior to contact and payments were started to Connaught which is the collection arm of 1St Credit, the requirement for a debt to become statute barred is 6 clear years with no payment or unequivocal written acknowledgment of the debt. Can you verify this?
    2. this debt does not appear on credit files when did it get removed?
    3. HFC may have assigned the account to DCA's to manage and/or collect the debt without actually selling it on, so 1st Credit may well have acquired the debt in 2007, you have a notice of assignment from HFC or 1st Credit?
    4. Are you receiving statements of the account at least once a year?
    5. Are you aware of the balance now outstanding?
    For establishing the date when this May have become statute barred before Connaught / 1st Credits involvement you need to establish when the last payment was made to HFC or any of the other DCA.s.

    I would be inclined to do a CCA request to 1st Credit as they are required to send a current statement of the account as well.

    As this account was defaulted more than 6 years ago court action is not a prospect.

    There is another option i.e., writing to say that payments are ceasing as it is believed that the debt was statute barred prior to 1st Credit acquiring the debt. ( I can help with a draft letter if needed.)

    nem
    thanks again nemesis

    i need to speak to her again properly she know she took it out in 1995 ish and started paying connaughts in 2007 she thinks she was paying another DCA before that but there was definitely many years before any DCA came along.
    checked her credit file a few years back and there was nothing of this debt on there it must have dropped off around 2002.

    she does not recall having any notice of assignment from HFC or 1st credit.

    She has been getting a statement every year with a balance on but nothing else... like i said she took this out when she was 19 now she turned 40 in february.

    shall i just send a CCA and a NOA see what they come back with give her a little more understanding.


    thanks nemesis your a star.


    Joe

  4. #4
    nemesis45's Avatar

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    Default Re: 1st credit help

    Just the CCA request is best at this point.

    The possibility of writing also is good.

    Also as this goes back 20 + years a SAR to 1st Credit is another option.

    nem
    The Advice I Give and Draft Letters Provided Are Drawn From Personal Experience and Career Training And Are Given Freely And Without Liability.
    Please make your own decisions with care and if necessary seek qualified legal advice.
    I will not advise by Private Message. If Specific Advice is Needed please Tag me in your post by typing @Nemesis45 . If you receive messages from anyone offering advice for a fee please report it to the site team. Animo et Fide.





  5. #5
    jon1965's Avatar

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    Default Re: 1st credit help

    Not to be alarmist but please explain why court action is not possible because the debt was over 6 years old. Lets face it, we know that some companies try claims on SB debts .

    Any CCA request has to be for the agreement (or recon) from the time the account was opened not when it was assigned, the only way that could be different is if your wife had signed a new contract which in my experience doesn't happen

  6. #6
    nemesis45's Avatar

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    Default Re: 1st credit help

    Limitation Act tis more than 6 years since the " cause of action" in fact more like 20 years a claim would fail.
    All that is asked for is a copy of the agreement between the OP and HFC.

    nem
    The Advice I Give and Draft Letters Provided Are Drawn From Personal Experience and Career Training And Are Given Freely And Without Liability.
    Please make your own decisions with care and if necessary seek qualified legal advice.
    I will not advise by Private Message. If Specific Advice is Needed please Tag me in your post by typing @Nemesis45 . If you receive messages from anyone offering advice for a fee please report it to the site team. Animo et Fide.





  7. #7
    jon1965's Avatar

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    Default Re: 1st credit help

    If the payments have been made and the debt was not SB then the cause of action will have reset as you well know. The default date in this case has nothing whites ever to do with it

    Your quote was
    As this account was defaulted more than 6 years ago court action is not a prospect.

  8. #8
    nemesis45's Avatar

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    Default Re: 1st credit help

    The payments made or not aren't a problem no relevant attempt to enforce the debt has been made in over 20 years.
    The Advice I Give and Draft Letters Provided Are Drawn From Personal Experience and Career Training And Are Given Freely And Without Liability.
    Please make your own decisions with care and if necessary seek qualified legal advice.
    I will not advise by Private Message. If Specific Advice is Needed please Tag me in your post by typing @Nemesis45 . If you receive messages from anyone offering advice for a fee please report it to the site team. Animo et Fide.





  9. #9
    joedempsey's Avatar

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    Default Re: 1st credit help

    Quote Originally Posted by nemesis45 View Post
    The payments made or not aren't a problem no relevant attempt to enforce the debt has been made in over 20 years.
    thanks all

    i will request a CCA and make a small note at the bottom of the letter stating this was stat barred many years ago before any payment commenced just to see what they come back with i will keep you posted.

    Thanks again keep up the faith

  10. #10
    jon1965's Avatar

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    Default Re: 1st credit help

    Nem
    It would appear that you are rewriting statute and we might as well do away with the limitations act

    In effect you have just told me that all my debts where the defaults have fallen off are no longer enforceable even though I was making payments up to 3 years ago. You have single handed gone against all the advice that lawyers and other experts have given on this and other forums .
    What is my best bet then when a creditor writes to me with a LBA, do I say F.O. nem on LB has told me that as the original cause of action was more than 6 years ago forget it?
    I think not

  11. #11
    Amethyst's Avatar

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    Default Re: 1st credit help

    I think the issue is how long between stopping payments to the loan and starting paying connaughts - if that period was over 6 years then it would be statute barred and the subsequent payments to connaught wouldn't over turn that.

    We know it dropped off the credit file in 2002 which indicates payments stopped in 1998 - in which case if no payment was made between 1998 and 2007 it would be SB. The COA was 1998. However if payments were made after between 1998 and 2002 then it wouldn't have been stat barred when payments began to connaughts and thus would be enforceable now.

    It's not a straightfroward argument - I think there's just some wording misunderstandings.
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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    Default Re: 1st credit help

    If it was statute barred before repayments commenced with any DCA, then those payments would not represent a fresh accrual of the cause of action. As that is what the OP says they think has happened, I suspect that is what Nem means.

    Obviously if never actually statute barred at any point, then any payments represent a fresh accrual and restarting of the 6 years, irrespective of the time (20 years or not) since the original initial accrual.

    - - - Updated - - -

    Quote Originally Posted by Amethyst View Post
    It's not a straightfroward argument - I think there's just some wording misunderstandings.
    Seems that way.

  13. #13
    Amethyst's Avatar

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    Default Re: 1st credit help

    Ahh Nibs, you word it so much better than I do. Thank you xx
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

    Any advice I provide is given without liability, if you are unsure please seek professional legal guidance.

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  14. #14
    joedempsey's Avatar

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    Default Re: 1st credit help

    Quote Originally Posted by Amethyst View Post
    Ahh Nibs, you word it so much better than I do. Thank you xx
    so do you think they would still try court action even after so many years if she stopped paying and how can we prove it was stat barred?
    also they wouldn't have any payment details to any other DCA who sold it to them?
    also do you think the CCA will still be knocking about?


    regards


    Joe

  15. #15
    jon1965's Avatar

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    Default Re: 1st credit help

    Thank you both, that was exactly the point I was trying to get across,
    If the payments have been made and the debt was NOT SB
    Once statute barred always statute barred but if payments are made even once every 5 1/2 years (in England) it would never become SB. Conveying exact meanings can be so difficult on a forum, one missed word can alter everything.

    - - - Updated - - -

    Joe
    If the debt was Statute barred at any point and you can prove it then they can try all they want but you would have an absolute defence. If you stop paying though I would put something in writing such as ' It has come to my attention that this account is actually statute barred as no payments were made between xxx and xxx' That would then put the onus of proof on them to show otherwise

  16. #16
    Amethyst's Avatar

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    Default Re: 1st credit help

    Quote Originally Posted by joedempsey View Post
    so do you think they would still try court action even after so many years if she stopped paying and how can we prove it was stat barred?
    also they wouldn't have any payment details to any other DCA who sold it to them?
    also do you think the CCA will still be knocking about?


    regards


    Joe
    I doubt it from 1995, but sometimes they pop up, definately worth asking for it.

    Did she make payments to any other DCA's in the interveening period ?
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

    Any advice I provide is given without liability, if you are unsure please seek professional legal guidance.

    Find Solicitors offering fixed fees on our sister site - JustBeagle.com

  17. #17
    joedempsey's Avatar

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    Default Re: 1st credit help

    Quote Originally Posted by jon1965 View Post
    Thank you both, that was exactly the point I was trying to get across,


    Once statute barred always statute barred but if payments are made even once every 5 1/2 years (in England) it would never become SB. Conveying exact meanings can be so difficult on a forum, one missed word can alter everything.

    - - - Updated - - -

    Joe
    If the debt was Statute barred at any point and you can prove it then they can try all they want but you would have an absolute defence. If you stop paying though I would put something in writing such as ' It has come to my attention that this account is actually statute barred as no payments were made between xxx and xxx' That would then put the onus of proof on them to show otherwise
    thanks jon
    i will sit down with her and write them a letter, fingers crossed.

    - - - Updated - - -

    Quote Originally Posted by joedempsey View Post
    thanks jon
    i will sit down with her and write them a letter, fingers crossed.
    so am i still right in saying if they did decide to take court action they would still have to produce a credit agreement?

    Joe

  18. #18
    nemesis45's Avatar

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    Default Re: 1st credit help

    OK Joe that's great,

    My learned friend an colleague (QC) here beside me agrees court action is a No, No on this.

    nem
    The Advice I Give and Draft Letters Provided Are Drawn From Personal Experience and Career Training And Are Given Freely And Without Liability.
    Please make your own decisions with care and if necessary seek qualified legal advice.
    I will not advise by Private Message. If Specific Advice is Needed please Tag me in your post by typing @Nemesis45 . If you receive messages from anyone offering advice for a fee please report it to the site team. Animo et Fide.





  19. #19
    joedempsey's Avatar

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    Default Re: 1st credit help

    [QUOTE=joedempsey;535581]thanks jon
    i will sit down with her and write them a letter, fingers crossed.

    - - - Updated - - -sorry


    so am i still right in saying if they did decide to take court action they would still have to produce a credit agreement?

    sorry amethyst i missed your post there i will need to jog her mind but she confident there was many years after 1995-6 she started paying


    Joe

  20. #20
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    Default Re: 1st credit help

    If it is statute barred then the issue of any credit agreement is only secondary, as you could defend on that statute bared issue alone.

    Still wise to request it though, so you have more grounds just in case something unexpected pops up.

    If you make the request then they would have to produce something that complies with the requirements of s77, reconstituted or not, in order to be able to enforce in court. As from 1995, s127(3) also applies, so if you believed and contended that an executed agreement containing the prescribed terms was not signed by yourself, then they would have to satisfy the court that one was in order to enforce.

    Very unlikely that a DCA is going to be able to jump all those hoops here, but in the end it's wise to "never say never".

  21. #21
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    Default Re: 1st credit help

    Quote Originally Posted by Nibbler View Post
    If it is statute barred then the issue of any credit agreement is only secondary, as you could defend on that statute bared issue alone.

    Still wise to request it though, so you have more grounds just in case something unexpected pops up.

    If you make the request then they would have to produce something that complies with the requirements of s77, reconstituted or not, in order to be able to enforce in court. As from 1995, s127(3) also applies, so if you believed and contended that an executed agreement containing the prescribed terms was not signed by yourself, then they would have to satisfy the court that one was in order to enforce.

    Very unlikely that a DCA is going to be able to jump all those hoops here, but in the end it's wise to "never say never".
    thanks nibbler what do you think of firstly writing them a kind letter stating the fact its nearly 20 years old and unfortunately i wasn't educated with the statute barred issues and to the fact they have received all this money and with it being statute barred many years before you came along would you kindly close this account.

    and if that fails then send a CCA request?

  22. #22
    Nibbler's Avatar

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    Default Re: 1st credit help

    It is one avenue you could go down if you are reasonably sure of your grounds.

    If me I think I would get the CCA request in as well though, as will cover bases, and hopefully help shut 1st Crud up quicker.

    There are bare bones of wording dealing with the SB issue here: http://forums.moneysavingexpert.com/...21&postcount=6 if you want to deal with that or insert something on it into any letter.

  23. #23
    joedempsey's Avatar

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    Default Re: 1st credit help

    Quote Originally Posted by Nibbler View Post
    It is one avenue you could go down if you are reasonably sure of your grounds.

    If me I think I would get the CCA request in as well though, as will cover bases, and hopefully help shut 1st Crud up quicker.

    There are bare bones of wording dealing with the SB issue here: http://forums.moneysavingexpert.com/...21&postcount=6 if you want to deal with that or insert something on it into any letter.
    thanks nibbler

    i will get the kind letter in and send a CCA request in another letter see what happens keep you posted

  24. #24
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    Default Re: 1st credit help

    If no court action has been taken in 20+ years it's highly unlikely to happen now.
    Send the CCA request first, then a letter as suggested earlier, don't get hung up
    in pedantic suppositions.
    I'll help you with a letter if needed.
    nem
    The Advice I Give and Draft Letters Provided Are Drawn From Personal Experience and Career Training And Are Given Freely And Without Liability.
    Please make your own decisions with care and if necessary seek qualified legal advice.
    I will not advise by Private Message. If Specific Advice is Needed please Tag me in your post by typing @Nemesis45 . If you receive messages from anyone offering advice for a fee please report it to the site team. Animo et Fide.





  25. #25
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    Default Re: 1st credit help

    Quote Originally Posted by joedempsey View Post
    thanks nibbler

    i will get the kind letter in and send a CCA request in another letter see what happens keep you posted
    Sounds best. Yes, do that.

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