Court claim: Ascent Vs TRGZ2005

[nemesis45]

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

Emm I seem to remember that this Draconian type of clause, unreasonable /unfair contract I had forgotten this until you posted.

I would need time to research this but I feel there was a successful challenge or two on this.

nem

[trgz2005]

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

Thanks ever so much for everybody's help on this you have all been so kind.
[MENTION=55034]nemesis45[/MENTION] at the top of copy it states " limited guarantee by individual of a third party's obligations secs 27 (7/95). I don't know if that assists. Once again thanks so much and I await your advice.

[nemesis45]

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

Thanks ever so much for everybody's help on this you have all been so kind.
@nemesis45 at the top of copy it states " limited guarantee by individual of a third party's obligations secs 27 (7/95). I don't know if that assists. Once again thanks so much and I await your advice.

I'll need a little time not my office until Tuesday it's nagging me now memory on the blink!!

nem

[Guest]

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..

First paragraph just that the bank can move funds to any of your accounts from any other of your accounts.

.Second one just states that you cannot withdraw funds from any of your account until all sums due under the guarantee are settled unless the bank says so.

Standard clause on bank loans unfortunately, particularly on business guarantor arrangements, there are provisions for complaint if you reel the bank did not inform you under the lending code.

[trgz2005]

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

[MENTION=3894]peterbard[/MENTION], which means they moved £22.06 in April 2014 into a business account which the last payment was made in December 2007 from the final payment of personal loan in June 2013 which was agreed with agents acting on their behalf whom came to an agreement with me to resolve the account and this was done. Does that action constitute right of acknowledgement within statute of limitation act 1980? Especially with one being a personal account and one being a joint business account and with the contract being pre November 2009 banking code of business. [MENTION=55034]nemesis45[/MENTION] is kindly assisting me with this issue but needs some time to get back to me.
I'm hoping and praying.
Ironically enough if the credit crunch had not happened which the bank involved played a part in, the original property (which was repossessed) would not of gone into negative equity and their charge would of been covered.

[Guest]

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

@peterbard, which means they moved £22.06 in April 2014 into a business account which the last payment was made in December 2007 from the final payment of personal loan in June 2013 which was agreed with agents acting on their behalf whom came to an agreement with me to resolve the account and this was done. Does that action constitute right of acknowledgement within statute of limitation act 1980? Especially with one being a personal account and one being a joint business account and with the contract being pre November 2009 banking code of business. @nemesis45 is kindly assisting me with this issue but needs some time to get back to me.
I'm hoping and praying.
Ironically enough if the credit crunch had not happened which the bank involved played a part in, the original property (which was repossessed) would not of gone into negative equity and their charge would of been covered.

No I think i said earlier and pasted the relevant legislation, section 29 and 30 of the statute of limitations 1980.

Any acknowledgement has to be made at your request and by you or your agent, unless they can show that you requested this transfer it will not count as acknowledgment and trigger a regeneration of the 6 year period.

The contractual term is there to ensure that they can transfer money without your specific authorisation. If it was transferred with your permission they would not need a contractual term.
The payment into another account does not have an effect on the cause of action or the acknowledgement of other account, theses are separate agreements.

[Nibbler]

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



May be useful, or may not.

[Guest]

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

This interesting Nibler although it does not effect the case here I would like to read further, do you have a link to the source ?

[Guest]

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

Could you imagine a case where a lender could push forward the SB date on a loan by set off.

Say there were two loans one debtor, the lender could following default on both or either, transfer funds from one fund to the other and back again indefinitely neither account would ever become SB.

The case above refers to the argument that the debtor must acknowledge the debt by funds out of "their hands", and not by instruction to the creditor to transfer.

The case found correctly that the debtor could instruct the creditor to transfer funds form one of their accounts to another in order to repay the other, but this has to be done in knowledge of the purpose at the time of transfer, it cannot be by some pre arranged set off which is triggered purely on the whim of the creditor.

[Nibbler]

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

Yes, I can only see that it would have to be either a specific one off agreement or somthing contracual that schedules or specifies specific payments under certain circumstances rather than just a general right of set off, contractual or otherwise.

[trgz2005]

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

[MENTION=3894]peterbard[/MENTION] and [MENTION=1508]Nibbler[/MENTION] thanks to both for your expertise today, This has been eating away at me for some time now.
I feel out of courtesy to [MENTION=55034]nemesis45[/MENTION] to also wait to hear back from them and then draft an appropriate letter to send using all the right choice of words and correct legislation from your good selves.
Hopefully then this matter will be closed and my I can put this incredibly stressful time behind me.
Please any further knowledge would be greatly received.
Many thanks to all for shedding some light at a dark time.

[nemesis45]

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

There is without doubt some measure of " unfair " terms in the conditions of the guarantee.
I have some checking to do and will get back to you later.

The terms of the guarantee and the specific wording " from any account held with the bank" having accepted and signed
the guarantee with this in the T's & C's, this could/can be construed as a payment authorised by the debtor it is this that
needs to challenged on the grounds of unfairness and given the very small amount of the offset and the point in time
that is was made " stinks" in my opinion!
nem

[trgz2005]

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

Morning, apart from using sections 5, 29 and 30 of sol 1980 has anybody any advice how to challenge banks powers in regard to wording a letter? [MENTION=29921]nemesis[/MENTION] kindly gave a very good letter template earlier but I would like to cover all bases and send it soon. Thanks all again for all your good advice.

[Guest]

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

Morning, apart from using sections 5, 29 and 30 of sol 1980 has anybody any advice how to challenge banks powers in regard to wording a letter? @nemesis kindly gave a very good letter template earlier but I would like to cover all bases and send it soon. Thanks all again for all your good advice.

Hi
Have they raised the issue ?

[Guest]

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

Yes I ca see they have. Something like

For your information the payment mde on xxxxxx was intended to repay my personal loan account number xxxxxxx.

This could not constitute any wish on my part to acknowledge any other debt. Section 29 of the SOL 1980 is quite clear that in order to acknowledge any debt the payment must be made in knowledge of the debtor.

For the avoidance of doubt any right of set off would refer to an account where the cause of action had not already accrued. Since demand had been made before my payment(section 6) no such right would exist for section 29 purposes.