Autistic man received letter from Restons.

[magic8ball]

Hello

I'm brand new here and seeking advice on behalf of a man who has autism.

Today he received a letter from Restons Solicitors referencing a debt of roughly £3600.00, asking him to make contact and/or pay by 4 January or CCJ action would proceed. He knows where the amount comes from, but it was from over 6 years ago. The hitch in this possibly being statute barred was that he believes he made some payments to Morecrofts for it in 2012/13.

The debt was accrued on a credit card, during a period (2004-2008) where he may have been financially abused by a former partner. He had received some letters from Cabot Financial but disposed of them. Restons' letter references Cabot but he had no agreement with them. He dealt with Morecroft via email at some point.

Any advice that could reduce his anxiety would be very gratefully received.

[EXC]

Re: Autistic man received letter from Restons.

I'll give [MENTION=55034]nemesis45[/MENTION] and [MENTION=6]Amethyst[/MENTION] a shout for you.

[nemesis45]

Re: Autistic man received letter from Restons.

Hello

I'm brand new here and seeking advice on behalf of a man who has autism.

Today he received a letter from Restons Solicitors referencing a debt of roughly £3600.00, asking him to make contact and/or pay by 4 January or CCJ action would proceed. He knows where the amount comes from, but it was from over 6 years ago. The hitch in this possibly being statute barred was that he believes he made some payments to Morecrofts for it in 2012/13.

The debt was accrued on a credit card, during a period (2004-2008) where he may have been financially abused by a former partner. He had received some letters from Cabot Financial but disposed of them. Restons' letter references Cabot but he had no agreement with them. He dealt with Morecroft via email at some point.

Any advice that could reduce his anxiety would be very gratefully received.

Good evening, welcome to LB,

I'm sorry to say that any payment made in the relevant 6 year period restarts the 6 year " clock " from zero.

When debts are sold it is with all the rights and obligations of the original contract meaning Cabot replaces
the original creditor as owner of the debt.
Restons will be representing a company in the Cabot group.

Which card provider was the original creditor?
How profound is his autism? Would he be or is he considered a vulnerable person?
In your opinion would such a credit card have been appropriate for him when it
was issued.
From what is his income derived?
We

- - - Updated - - -

Hello

I'm brand new here and seeking advice on behalf of a man who has autism.

Today he received a letter from Restons Solicitors referencing a debt of roughly £3600.00, asking him to make contact and/or pay by 4 January or CCJ action would proceed. He knows where the amount comes from, but it was from over 6 years ago. The hitch in this possibly being statute barred was that he believes he made some payments to Morecrofts for it in 2012/13.

The debt was accrued on a credit card, during a period (2004-2008) where he may have been financially abused by a former partner. He had received some letters from Cabot Financial but disposed of them. Restons' letter references Cabot but he had no agreement with them. He dealt with Morecroft via email at some point.

Any advice that could reduce his anxiety would be very gratefully received.

Good evening, welcome to LB,

I'm sorry to say that any payment made in the relevant 6 year period restarts the 6 year " clock " from zero.

When debts are sold it is with all the rights and obligations of the original contract meaning Cabot replaces
the original creditor as owner of the debt.
Restons will be representing a company in the Cabot group.

Which card provider was the original creditor?
How profound is his autism? Would he be or is he considered a vulnerable person?
In your opinion would such a credit card have been appropriate for him when it
was issued.
From what is his income derived?
Does he understand fully what is happening?
Are you acting on his behalf?
We need to establish if Cabot has anything to back up a court claim.

By sending a request to them for a copy of the credit agreement, there a £1 statutory fee payable ( use a Postal order endorsed " For Statutory Fee Only" there's a template in the forum library for this. Use signed for post. Cabot has 14 Working Days to comply with this.

nem

[nemesis45]

Re: Autistic man received letter from Restons.

I'll give @nemesis45 and @Amethyst a shout for you.

Replied [MENTION=332]EXC[/MENTION]nem

[magic8ball]

Re: Autistic man received letter from Restons.

Many thanks for your reply.

Which card provider was the original creditor? - it was Lloyds bank.

How profound is his autism? Would he be or is he considered a vulnerable person? - he's high functioning. He has full capacity in many areas but struggles in some others, enough to cause him distress but not enough to warrant a financial attorney or deputy.

In your opinion would such a credit card have been appropriate for him when it was issued. - in my opinion, no. Forward planning is one of the areas he struggles with.

From what is his income derived? - he has an income from work and benefits.

Does he understand fully what is happening? - yes.

Are you acting on his behalf? - No, he doesn't lack capacity. He struggles though.

[Debt Camel]

Re: Autistic man received letter from Restons.

OK, the following is assuming that the dates you gave are correct - debt accrued between 2004-8 and he made payments to it in 2012-3 - you should probably ask if you can see paper / email proof of these to be sure...

His most likely options now are (there are others such as insolvency, but unless he has a lot of other debts these aren't likely to be helpful):

1) to ask for a write off of the debt because of his autism. This isn't going to happen unless he can produce some evidence about his mental health, probably a DMHEF form completed by his doctor:: see http://www.rcpsych.ac.uk/workinpsych...lth/dmhef.aspx

2) to ask for a copy of the credit agreement as suggested by [MENTION=29921]nemesis[/MENTION] above

3) to make an offer of monthly payment to them now in the hope of forestalling court action - how much could he offer?

These options aren't exclusive. (1) is a long shot, from what you have said, that he doesn't lack capacity and indeed he made repayments to the debt for 4 years. It may still be worth him trying this, because even if a write off is rejected, it may mean the creditor is more prepared to accept a low monthly offer. (2) is definitely worth doing what ever else happens. If an offer of monthly payments is agreed and they cannot then produce the correct documentation, the monthly payments could be stopped.

[Openlaw15]

Re: Autistic man received letter from Restons.

One thing you're overlooking is the issue of undue influence, if the autistic gentleman entered into contract under duress the contract may be illegal and therefore the debt cannot be claimed. Say the contract was made illegally as it was made under undue influence. If this fails, say the claim is statute barred, which will force them to prove he made payments in 2012/13. Then say, an autistic man made a mistake by making payments but anyone else not affected by autism would not have made that mistake.

- - - Updated - - -

Many thanks for your reply.

Which card provider was the original creditor? - it was Lloyds bank.

How profound is his autism? Would he be or is he considered a vulnerable person? - he's high functioning. He has full capacity in many areas but struggles in some others, enough to cause him distress but not enough to warrant a financial attorney or deputy.

In your opinion would such a credit card have been appropriate for him when it was issued. - in my opinion, no. Forward planning is one of the areas he struggles with.

From what is his income derived? - he has an income from work and benefits.

Does he understand fully what is happening? - yes.

Are you acting on his behalf? - No, he doesn't lack capacity. He struggles though.

Capacity is a legal concept - how do you know what the test for capacity is, much less him? I do not think capacity is a straight forward thing at all. However, if you're sure he has capacity i'll leave that point alone.

- - - Updated - - -

Hello

I'm brand new here and seeking advice on behalf of a man who has autism.

Today he received a letter from Restons Solicitors referencing a debt of roughly £3600.00, asking him to make contact and/or pay by 4 January or CCJ action would proceed. He knows where the amount comes from, but it was from over 6 years ago. The hitch in this possibly being statute barred was that he believes he made some payments to Morecrofts for it in 2012/13.

The debt was accrued on a credit card, during a period (2004-2008) where he may have been financially abused by a former partner. He had received some letters from Cabot Financial but disposed of them. Restons' letter references Cabot but he had no agreement with them. He dealt with Morecroft via email at some point.

Any advice that could reduce his anxiety would be very gratefully received.

Do not offer to pay anymore at this point until you're sure you want to acknowledge the debt - as if you/ he starts paying now you cannot use the autism argument or rely on the defence of mistake. So please consider everything carefully.

[Debt Camel]

Re: Autistic man received letter from Restons.

Then say, an autistic man made a mistake by making payments but anyone else not affected by autism would not have made that mistake.

have you seen this sort of defence work?

[Openlaw15]

Re: Autistic man received letter from Restons.

Not specifically, but law is about persuading..it is potentially a feasible defence. Mistake is a common law defence in contract however.

[magic8ball]

Re: Autistic man received letter from Restons.

Thanks for your replies.

You're right, capacity is a legal issue. I work in safeguarding adults at risk and deal with capacity issues on a daily basis.


Shortly after my previous post he sent a letter (using a template) to Restons and one to Cabot asking for a copy of the credit agreement and enclosing a postal order for the cost of this. Today he received a letter from Restons, returning his letter and postal order to them and stating that there is no longer an agreement as this terminated when he failed to comply with the terms of the default notice. They go on to say that their client is also not obliged to provide a copy of the document and they will now be issuing legal proceedings against him.

Any advice on what to do next would be very appreciated.

Regarding the point above on undue influence, he states that he was pressured into taking it out. Would the pressure need to have come from the lender to be plausible as evidence?

Edited to add: he also sent a letter to Lloyds asking for a copy of the agreement.

[nemesis45]

Re: Autistic man received letter from Restons.

Thanks for your replies.

You're right, capacity is a legal issue. I work in safeguarding adults at risk and deal with capacity issues on a daily basis.


Shortly after my previous post he sent a letter (using a template) to Restons and one to Cabot asking for a copy of the credit agreement and enclosing a postal order for the cost of this. Today he received a letter from Restons, returning his letter and postal order to them and stating that there is no longer an agreement as this terminated when he failed to comply with the terms of the default notice. They go on to say that their client is also not obliged to provide a copy of the document and they will now be issuing legal proceedings against him.

Any advice on what to do next would be very appreciated.

Regarding the point above on undue influence, he states that he was pressured into taking it out. Would the pressure need to have come from the lender to be plausible as evidence?

Edited to add: he also sent a letter to Lloyds asking for a copy of the agreement.

The CCA request to Cabot is Key to this, if the agreement is not produced within the 12 + 2 Working Days time scale (and remains outstanding when a claim is issued the debt is rendered unenforceable UNTIL the agreement is produced.

As to Restons stupid comment that there is no agreement if this is the case their client cannot inherit the rights and obligations arising from the original agreement, and cannot claim any relief.

He needs to keep that letter safe to throw it into the ring if a claim is issued.

The only time really when an agreement is " dead" is when a judgement has been obtained, this then supersedes the original agreement.

Cabot and Restons a pulling another dirty trick in the hope he will give in.
BTW who signed the Restons letter or was it the usual digital signature.

nem

nem

[magic8ball]

Re: Autistic man received letter from Restons.

Thanks. We'll keep tight hold of that letter and see if the CCA is produced.

It looks like it was signed in pen, but a usual office squiggle/initials rather than a proper signature.

[Openlaw15]

Re: Autistic man received letter from Restons.

Thanks. We'll keep tight hold of that letter and see if the CCA is produced.

It looks like it was signed in pen, but a usual office squiggle/initials rather than a proper signature.

**Amethyst, whomever this is important so please post it. ** The Limitation Act 1980 states that a cause of action (legal proceedings) cannot be brought after 6 years for contract debt. This is the law of the land as Parliament intended. FCA, which regulates the debt collection agencies/ companies, guidance however states that although a debt is statute barred that if there is 'regular contact with the customer' that the company may still try to recover the debt: CONC 7.15.5; but if there is no contact during the limitation period the debt cannot be pursued: CONC 7.15.4 https://www.handbook.fca.org.uk/handbook/CONC/7/15.html

My view is that a debt in contract cannot be pursued full-stop by debt collection agencies/ other in the courts if the period (limitation period) of 6 years has expired. Now FCA guidance of 'regular contact' in any event requires much more than one payment an autistic gentleman makes. In addition, 'may try to recover the debt' under FCA guidance does not means the debt can be recovered in the courts (if passed said 6 year period.). If the DCA were to use such language it would be misleading and the company can get into trouble. So where does this 'the clock starts again' where payments are made come from, is my question?

[Amethyst]

Re: Autistic man received letter from Restons.

The clock starts again if payment is made within the 6 year period. If no payment is made and the debt becomes statute barred, then a payment cannot 'un' statute barr it.


( just adding for OL - see 29(7) LA 1980 )

[Openlaw15]

Re: Autistic man received letter from Restons.

The clock starts again if payment is made within the 6 year period

How can 'the clock' start again as it were. If the party has not made a claim in the statutory prescribed period, ie 6 years for simple contract, regardless of whether the debtor has made any payments or therein missed some payments, ie 6 years for simple contract, then that claim is forever lost be it the original creditor, or a debt collection agency claimant/ claimants where there has been an assignment or purchases of the right to claim the debt (receivable), the same applies. The debtor can only be burdened for six years no matter what for the original debt, as if the contrary were the case the creditor/ debt collection agency would have the 6 years clock revised at their own whim. Debts per se in any event cannot be purchased as debt is a negative value (so how can you purchase something that has negative value, ie a positive value that does not yet exist in real terms) but the right to claim debts (receivables) can be purchased. This is the idea of the Limitation Act, that is to stop stale claims coming many years later. So, where is the law for the clock to 'starts again'? This is would be against the rule of law in democratic countries if the 6 years period could be switched on and off at the leisure or the prerogative of the creditor/ debt collection agency.