Court claim: Ascent Vs TRGZ2005

[trgz2005]

Hi Sorry if this post is wrong in regard to etiquette I'm not good at this sort of thing.
I was wondering if somebody can assist please?

Long story short,Business went down in credit crunch 2008.
Had a business loan of xx thousands pounds.

Last payment was December 2007 no written communication from myself or payment from that date, subsequently house in partners name was taken by mortgage provider I was named personal guarantor on my side as unsecured loan as she put up security. ultimate borrower a ltd company we where repossessed and made homeless with young family and had no money at all. My priority was to provide for family I found new job to start again. The Bank formally demanded the loan in June 2008 and then Aug 2008 which I did not reply, they wanted to merge all the loans together and take a further security on the property that did not happen.

I had a personal loan with same bank prior to staring as my business which I paid of to a third party at £50 a month for five years starting in June 2008 this was resolved in June 2013 to the penny outstanding, the bank in question did not contact me while this personal loan was being paid back and knew where I lived.
May i state for the record the personal loan had nothing to do with business loan.

In April 2014 I got a letter from the bank saying there was a issue regarding £20.00 on the personal account.
I contacted bank and complained about the fact I had no account with them and personal debt resolved they then mentioned actually they wanted to talk about outstanding XX thousand pounds business debt and can they have that back now please.

I did not acknowledge as I had forgot all about it and had started my life again and thought with the house being taken it was all finished and all business debts written off.

They investigated after I complained and admitted liability in delay of communication due to a" system error" and actually sent me a cheque for a couple of hundred pounds compensation which I have not cashed or acknowledged, however without my written consent or acknowledgement they have made a payment from my old personal account (which I had no access to or knowledge as they demanded my personal debt to be paid off and thought it had been shut down due to paying off personal debt with third party) of £22.00 nearly a year after that debt was paid off into a business account I have no knowledge of and are claiming it is now " a right of set of credit funds" on the business Loan which apparently does not constitute statute barred on the debt and that I have to pay it now. That was in April 2014, I heard nothing since thinking it was statute barred apart from a letter asking if I had cashed the cheque yet which I will not and ignored.

They are threatening court now via solicitors (ascent) in June 2015, I have checked my credit file and my credit rating is excellent with no historical CCJS ever or Gone absent on address.However they are threatening charge on my 33% stake in a homeshare property I no reside in. Please be aware as stated earlier when the first property was taken originally it was not mine and I was not on the deeds I was a personal guarantor on the loan.

Please can somebody help, am I liable? Is the debit statue barred? Can the bank just pull a £22.06 payment from one magical account into another for which I have not authorised or physically paid and then claim I am still liable for the debit?

I spoke to third party this morning regarding personal loan payment and they said when direct debit was shut down by bank on 10 June 2013 9 days after the last direct debit and the matter closed as far as they were concerned, However the loan even though finished being paid and it was satisfied to the penny the balance balance was £27.94 short of full figure, (which if my maths is correct it seems they have pulled my last payment of £50.00 out of the personal loan repayment and paid £22.06 into this business account as there right of set letter states without my consent or authorisation for it to go toward business loan.)

The terms and conditions clearly state the right of set off is for any account in credit, well the account couldn't of been in credit if there was a £27.94 shortfall when the direct debit was shut down in June 2013 by the bank. It seems they have moved money from the personal debit credited the account and claimed right of set off.

It has taken the last 8 years to get my life back on track and I got very ill as result of this matter the first time and I really don't need this again, can anybody please help?

Many Thanks

[Kati]

Re: Limitaion act staute barred and right of set letter. Please help

It is my understanding (correct me if I'm wrong [MENTION=55034]nemesis45[/MENTION] or [MENTION=6]Amethyst[/MENTION] ) that for the statute barred clock to be reset, it has to be a payment or acknowledgement of the debt by either yourself or someone to whom you have given your consent. The transfer of cash from one account to another (made by the bank of it's own violition and without your prior knowledge or approval/consent) would not restart the clock in this case

[Guest]

Re: Limitaion act staute barred and right of set letter. Please help

It is my understanding (correct me if I'm wrong @nemesis45 or @Amethyst ) that for the statute barred clock to be reset, it has to be a payment or acknowledgement of the debt by either yourself or someone to whom you have given your consent. The transfer of cash from one account to another (made by the bank of it's own violition and without your prior knowledge or approval/consent) would not restart the clock in this case

You're correct the SOL says the debtor or their agent may acknowledge payment, the person that is owed the money can hardly be considered the agent of the debtor.

[trgz2005]

Re: Limitaion act staute barred and right of set letter. Please help

Many thanks,
Would the prudent course of action send a letter to solicitors stating it is statute barred asking for independent proof of payment and making a formal complaint giving them a time frame to close case as I am aware of asking for bank records is an acknowledgement of debt. Or shall I ignore the threats and await further response from solicitors and call their bluff?
Thanks once again.

[Guest]

Re: Limitaion act staute barred and right of set letter. Please help

I should make them aware that you know the account is stature bared, once it has become SB you cannot revive it by acknowledgement.

The relevant section is section 29 SOL 1980

(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,

And section 30

(2For the purposes of section 29, any acknowledgment or payment—

(a)

may be made by the agent of the person by whom it is required to be made under that section;

[FlamingParrot]

Re: Limitaion act staute barred and right of set letter. Please help

Many thanks,
Would the prudent course of action send a letter to solicitors stating it is statute barred asking for independent proof of payment and making a formal complaint giving them a time frame to close case as I am aware of asking for bank records is an acknowledgement of debt. Or shall I ignore the threats and await further response from solicitors and call their bluff?
Thanks once again.

You can send a SAR which is a request under the DPA for all data held about you, that wouldn't be acknowledgment of anything, besides, once a debt is SBd it can't be un-barred even by making a payment. You have the right to ask for data about YOU as an individual, which brings me to the next point: was the business account as a sole trader or a limited company? Set off can only be done between accounts you manage in the same capacity; they can't offset, say against an account you run as a trustee or a company director to repay money you borrowed personally or vice versa.

[nemesis45]

Re: Limitaion act staute barred and right of set letter. Please help

Kati is spot on !!
Try this:

Use their Refs:

Sir/Madam,

I refer to the correspondence in regard to the alleged debt for £ ................. and my statement that this Is statute barred, it is now alleged that the alleged debt is not statute barred because a transaction " by right of setoff " made on the banks own volition and without my knowledge and express permission.

I am sure you are aware that any payment made that could affect the 6 year period set down in section 5 of the Limitation Act 1980 must be made by the debtor in person or by a properly authorised representative of the debtor in this situation the creditor cannot be seen as such a representative, thus my statement that the alleged debt is statute barred stands and I will not now or in the future make any payment or offer of payment.

I now suggest that you inform your client of the facts and put it to them that it would be prudent to close the file upon this matter forthwith.

use signed for post check when the sols receive it.

nem

[trgz2005]

Re: Limitaion act staute barred and right of set letter. Please help

[MENTION=55034]nemesis45[/MENTION] many thanks for letter template very kind.
@ flaming parrot company was limited of which I was director.

[trgz2005]

Re: Limitaion act staute barred and right of set letter. Please help

Apologies pushed wrong button. [MENTION=37786]FlamingParrot[/MENTION] loan was a personal loan taken out before company was born. It seems they have taken part of a payment of the last repayment and credited the business loan 10 months after I paid off the personal loan. What concerns me since I have come for advice is that In the original contract the bank states it has the power to create any new account and move money from any existing account to satisfy any monies owed as it sees fit regardless of state of credit. However surely after paying off the personal should of that account been closed? I'm very confused.

[nemesis45]

Re: Limitaion act staute barred and right of set letter. Please help

@nemesis45 many thanks for letter template very kind.
@ flaming parrot company was limited of which I was director.

Any " directors personal guarantee's in place"?

nem

[trgz2005]

Re: Limitaion act staute barred and right of set letter. Please help

Borrower: my partner
Co guarantor: me
Ultimate borrower: limited company
Security: legal charge over borrowers property which secures all liabilities to the borrower to the bank of any kind including pursuant of the guarantee.
Guarantee: XX thousand pounds to borrower and myself in respect of all liabilities of ultimate borrower.

Hope that helps?

[nemesis45]

Re: Limitaion act staute barred and right of set letter. Please help

Indicates to me that there does not appear to be any right to Offset in regard to " personal " banking facilities Unless specifically written into the guarantee.

Seems like some over zealous bank desk jockey was trying to be clever!!

nem

[trgz2005]

Re: Limitaion act staute barred and right of set letter. Please help

So go ahead with earlier letter template? defence of statute barred under sol 1980?

[nemesis45]

Re: Limitaion act staute barred and right of set letter. Please help

So go ahead with earlier letter template? defence of statute barred under sol 1980?

Yep seems the way to go, they may fight and try to come up with reasons why they believe they had the right to offset .
It's really wait and see what they make of the defence.

nem

[trgz2005]

Re: Limitaion act staute barred and right of set letter. Please help

Sorry found this..

"powers of the bank

9.2 In addition to any lien or right to which the bank may be entitled by law the bank may from time to time without notice and both before and after demand set - off the whole or any part of the guarantor's liability to the bank under this deed against any deposit or credit balance on any account of the guarantor with the bank (whether or not that deposit or balance is due to the guarantor)

9.3
Despite any term to the contrary in relation to any deposit or credit balance on any account of the guarantor with the bank that deposit or balance will not be capable of being assigned dealt with mortgaged or charged and will not be repayable to the guarantor before all the guarantors liability to the bank under this deed has been discharged but the bank may without predjudice to this deed permit the guarantor to make withdrawals from time to time. "

Heavy stuff..