Late Payment markers for 5 years but not defaulted. Please Advise

[llollipoppi]

Hi folks,

I was wondering if someone could advise me. I have an old debt to HFC bank, the last payment was made March 2008, It went to to status 6 in September 2008 and has shown late payment markers 6 ever since this date. It shows the debt is for £1928 however It was less than this, I'm sure it was £1700. Please dont judge me on why I did not pay it as it was a very tough time personally. I have had no contact to the debtor at all during this period. They have sent a few letters which I have not responded to. the last one advise that the debt was being transferred to someone else. I live in Scotland and was going to respond to the debt last year but my friend who words for debt collection advised that as its five years for statute limitation in Scotland I would be as well leaving it.

Despite no contact with my the debt has not defaulted and continues to show as late payment.

My question is, after the 5 year period can I contact the lender and tell them to remove the debt as it is no longer valid or will this reset the debt period as it has not defaulted?

I have heard that the markers wont come off my account until the debt shows as settled but as I said no contact in nearly 5 years.

May I thank you for any assistance you can give me.

llolli

[Nibbler]

Re: Late Payment markers for 5 years but not defaulted. Please Advise

If you are sure that it is statute barred, then complain that it has never been defaulted.

http://www.ico.gov.uk/~/media/docume...%20%20doc.ashx

A record showing a series of payments as six months in arrears when this does not reflect the real payment history should not be used as an equivalent of a default.

Accounts should normally be filed as being in default where those payments due have not been received for six months.

[FlamingParrot]

Re: Late Payment markers for 5 years but not defaulted. Please Advise

Hi folks,

I was wondering if someone could advise me. I have an old debt to HFC bank, the last payment was made March 2008, It went to to status 6 in September 2008 and has shown late payment markers 6 ever since this date. It shows the debt is for £1928 however It was less than this, I'm sure it was £1700. Please dont judge me on why I did not pay it as it was a very tough time personally.

We're here to help, not to judge. You'll find quite a few of us haven't been paying our debts, I haven't since 2010 so don't feel bad about it. :thumb:

I have had no contact to the debtor at all during this period. They have sent a few letters which I have not responded to. the last one advise that the debt was being transferred to someone else. I live in Scotland and was going to respond to the debt last year but my friend who words for debt collection advised that as its five years for statute limitation in Scotland I would be as well leaving it.

In Scotland, it would be Statute Barred after 5 years without payment or written acknowledgment.

Despite no contact with my the debt has not defaulted and continues to show as late payment.

My question is, after the 5 year period can I contact the lender and tell them to remove the debt as it is no longer valid or will this reset the debt period as it has not defaulted?

I have heard that the markers wont come off my account until the debt shows as settled but as I said no contact in nearly 5 years.

May I thank you for any assistance you can give me.

llolli

Just to clarify, the Statute of Limitations applies regardless of whether a default was recorded with the CRAs or not, it will be Statute Barred after 5 years anyway. The default with the CRAs should drop off 6 years after it was recorded, regardless of whether it was ever settled or not. As mentioned above, they should have defaulted the account no later than 6 months after the first missed contractual payment.

[charitynjw]

Re: Late Payment markers for 5 years but not defaulted. Please Advise

NB: In Scotland, unlike England, after 5 years the debt ceases to exist.

In England, the debt is still 'there', but it can't be actioned through the courts, so there is no way it can be legally enforced.

http://www.legislation.gov.uk/ukpga/1973/52

Negative Prescription

6Extinction of obligations by prescriptive periods of five years.

(1)

If, after the appropriate date, an obligation to which this section applies has subsisted for a continuous period of five years—

(a)

without any relevant claim having been made in relation to the obligation, and

(b)

without the subsistence of the obligation having been relevantly acknowledged,
then as from the expiration of that period the obligation shall be extinguished:Provided that in its application to an obligation under a bill of exchange or a promissory note this subsection shall have effect as if paragraph (b) thereof were omitted.

(2)

Schedule 1 to this Act shall have effect for defining the obligations to which this section applies.

(3)

In subsection (1) above the reference to the appropriate date, in relation to an obligation of any kind specified in Schedule 2 to this Act is a reference to the date specified in that Schedule in relation to obligations of that kind, and in relation to an obligation of any other kind is a reference to the date when the obligation became enforceable.

(4)

In the computation of a prescriptive period in relation to any obligation for the purposes of this section—

(a)

any period during which by reason of—

(i)

fraud on the part of the debtor or any person acting on his behalf, or

(ii)

error induced by words or conduct of the debtor or any person acting on his behalf,
the creditor was induced to refrain from making a relevant claim in relation to the obligation, and

(b)

any period during which the original creditor (while he is the creditor) was under legal disability,
shall not be reckoned as, or as part of, the prescriptive period:Provided that any period such as is mentioned in paragraph (a) of this subsection shall not include any time occurring after the creditor could with reasonable diligence have discovered the fraud or error, as the case may be, referred to in that paragraph.

(5)

Any period such as is mentioned in paragraph (a) or (b) of subsection (4) of this section shall not be regarded as separating the time immediately before it from the time immediately after it.

[llollipoppi]

Re: Late Payment markers for 5 years but not defaulted. Please Advise

[IMG][/IMG]

My account when 6 months overdue in September 2008. Should it have defaulted then? As I said I have not made in payments or had any contact with them at all. If this is the case should I write to the company after September stating that as in Scotland the debt is statute barred as:

• No payments have been made towards the debt for the last 5 years, AND
• No written communications with the creditors have taken place acknowledging the debt

Secondly, in accordance with ICO regulations A record showing a series of payments as six months in arrears when this does not reflect the real payment history should not be used as an equivalent of a default.

This is not a true record of the account as a default has not been registered? Should I request that they rectify my file to show a default so that the account will be removed?

Thank you once again for your assistance. Just trying o get my head around this. I'm looking to move house in two years and would really like my credit file to be clean and just want to ensure I go about it the correct way.

[Nibbler]

Re: Late Payment markers for 5 years but not defaulted. Please Advise

If you are sure it is statute barred, then yes, you can complain and demand that they do that.

[llollipoppi]

Re: Late Payment markers for 5 years but not defaulted. Please Advise

Ok thanks I'll wait until the end of October and make a complaint.

[llollipoppi]

Re: Late Payment markers for 5 years but not defaulted. Please Advise

Sorry for being a pain. Do I make the complaint to the credit reference agency or the company?

Thanks

[Nibbler]

Re: Late Payment markers for 5 years but not defaulted. Please Advise

Both. Regsiter a dispute via the credit reference agency, and write separately to the company with a full complaint stating that you will take the matter to the FOS and ICO if they do not correctly update your files.

[llollipoppi]

Re: Late Payment markers for 5 years but not defaulted. Please Advise

Ok. I have definitely not made any payments to this since April 2008. Checked my bank statements. I have also not written to them or spoken to them. They have written to me but I have not acknowledged it. I have drafted up a letter and would be grateful for someone to check over it. It refers to the debt being statute barred and also that it has not been defaulted when it should have been. Thanks again.

I do not acknowledge any debt to you or any other company or organisation that you claim to be representing.

Dear Sir/Madam

Ref: xxxxxxxxxxx


This letter refers to two issues relating to an account present on my credit file which you claim is owed by myself.

Firstly, I would point out that under The Prescription and Limitation (Scotland) Act 1973 Part 1 Prescription Section 6:

"If after an appropriate date, an obligation (an appropriate debt) has subsided for a continuous period of five years:

(a) without any relevant claim having been made in relation to the obligation, and
(b) without the subsistence of the obligation having been relevantly acknowledged;

then as from the expiration of that period the obligation shall be extinguished..."

I would also point out that the Office of Fair Trading (OFT) say under their Debt Collection Guidance on statute barred debt that:

"It is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period".

The last written acknowledgement/payment of this debt was made over five years ago and no further acknowledgement or payment has been made since that time.

Unless you can provide evidence of payment or written acknowledgment from me in the relevant period under Part 1 Section 6 of the above Act, I suggest that you are no longer able to take any court action against me/us to recover the alleged amount claimed.

The OFT Debt Collection Guidance states further that:

"continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred could amount to harassment".

I await your written confirmation that no further contact will be made concerning the above account and confirmation that this matter is now closed.
Secondly, the account in question continues to show late payment markers for over five years. In accordance with ICO regulations the account has never:
A record showing a series of payments as six months in arrears when this does not reflect the real payment history should not be used as an equivalent of a default.

The account in question should have been defaulted six months after the last payment was received. The said account then should be corrected to show default in September 2008. If I do not hear from you within 21 days I will forward this complaint to the Information Commission’s Office (ICO) and the Office of Fair Trading (OFT).

I await your written confirmation that all derogatory data from the files of any credit reference agency will be removed; no further contact will be made concerning the above account and confirmation that this matter is now closed

Yours faithfully

[justojustin]

Re: Late Payment markers for 5 years but not defaulted. Please Advise

Hi, thanks for posting the above letter....Did you post it or something to that effect and what was the end result? Hope it worked out for you