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Byohdearme3
#472122 Hello Talbot,
I read your advice and posts and would joined in the hope you could offer some advice.. I am being chased by DCA max recovery via some solicitors. I got into dept for £28, 000 accrued largely in different consolidation loans as I was ill and out of work. I am took out an IVA in 2008 July. I paid up until March 2010. I failed the IVA as went into a meltdown. I then moved house a few times. I am 45 and now after an ex husband gave them my address it looks like they have bought one of the loans and have contacted me here. So far I have just recieved a letter saying thankyou for supplying your address in relation to this case.XXXXXXXX. I havent replied as I'm quite scared. I am broke, except I have equity in my shared ownership house. Im considering bankruptcy but don't want to loose the house. This case is the smallest debt I had. I was wrongly hoping if I wasn't contacted it may be statute barred. However, after contacting my old IVA, even though I broke the TC's in 2010 by stopping paying they paid XXXXXXXX in the following year as it took them a year to communiacte to the XXXXXXXX that they had stopped the IVA. As far as I can see most of the money I paid went to the IVA- Debt Direct administartion fees, I paid in each month but only 2,800 went into the debt. The figure the debtors all agreed to take was 10.71 p in every pound I owed.

I suppose my query is; Is the debt statute barred from my last payment to the iVA which was 2010 March, or is it from payment the IVA made- a year later 2011, or as told to me on phone by Debt free direct adviser last week from the creditors meeting. Please help. I am terrified, and being a rubbish Mum as Im spending all my time worrying. Thankyou anyone for advise
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ByJaneClack
#472124 I am a qualified insolvency administrator (basically know the pros and cons and not nearly as clever as an IP) but this has left me stumped as acknowledgement in writing was in 2008 when your proposals were put forward, you physically made the last payment in 2010 but it was not (all anyway) distributed until 2011 ON YOUR BEHALF. So, I have asked an insolvency practitioner and will come back with his comments ... It is unlikely that the supervisor you spoke to at DFD was an IP either so would not rely on his comments.
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ByTalbotWoods
#472128 Hi ohdearme3

OK I've seen a similar case recently where Maxx Recovery bought an old failed IVA debt that was not statute barred (due to last payment being made made within the last six years by the IVA Trustee). They then asked Eversheds Solicitors to chase it on their behalf, so effectively (like you) the client received the Letter before Action from Maxx.

In that instance they chose not get into the nitty gritty of chasing or defending the laws definitions, but just accepted that the past payment had been made with 6 years so that it was not barred. In that case, which is similar to yours, the IVA had failed and had been running for several years before it failed, but the key bit being that the debt being chased was opened pre-2008.

The matter was stopped reasonably quickly as the client challenged Maxx and Evershed to produce all the relevant documentation that they would need if they attempted court action. Maxx were not able to produce the Credit Agreement!

So in this case it may pay to send the letter below. Send this to the Solicitors and a COPY to Maxx.

Dear Sirs,

Ref: [Account/Reference Number]

Thank you for your letter dated [Date].

As your letter contains a threat of litigation, it is being treated as a formal Letter before Action.

As such, I refer you to:

Paragraphs 1.1 and 1.2 of the Practice Direction Pre-Action Conduct, which states the purpose of such a letter is to “enable the parties to settle the issues between them” and to encourage the parties to “exchange information”.

Paragraph 2.2 (1) of Annex A states you have an obligation to “list the essential documents on which the Claimant intends to rely”, I could not identify any such list in your letter.

Paragraph 3.2 (3) of Annex A allows me to “request further information to enable me to provide a full response” to your Letter before Action.

Paragraph 4.4 (1) and (4) specifically gives examples of a failure of compliance by a party, where you do "not provided sufficient information to enable the other party to understand the issues" and "without good reason, not disclosed documents requested to be disclosed"

Paragraph 5.1 of Annex A states that you should “provide the documents requested within as short a period of time as is practicable or explain in writing why the documents will not be provided”. I would suggest that a suitable period of time in which to provide the documents would be 12 days for the date of receipt of this latter as per the requirements under the Consumer Credit Act 1974 regarding an application for an enforcement order (CCJ)

Therefore, I must formally request the following documents from you as the information I require would come from those documents. :

    The original account agreement (including the original Terms and Conditions and all amendments to the Terms and Conditions);
    The original Default Notice;
    The original Termination Notice;
    All original Notices of Assignments;
    Statements of accounts, covering the past 6 years;

Please note that I am requesting copies of the ORIGINAL documents as these documents will be expected to be supplied to the court if proceedings were issued and should legally be in your possession if you were issuing a claim. If you consider that there is difficulty in providing a copy of a document, please identify that document and the reason.

For the avoidance of doubt, an original signed Consumer Credit Agreement is just that; not an application for credit and not a reconstructed or microfiched document from other sources but indeed the original signed document purporting to be signed by myself.

Please note that until such times as a legally enforceable, original Consumer Credit Agreement can be produced and a copy sent to me by return, then this letter is not an acknowledgement of debt and this account will remain in an unenforceable state protected in line with s.127 (CCA1974).

I will be able to provide you with a full response to your letter within 14 days of receipt of the documents listed above.

I also reserve the right to refer to the contents of this letter if proceedings are issued without first providing copy documents to me.

Please also note that as this is a Letter before Action, I will only correspond with you in writing. This is to ensure that there are no misunderstanding which can occur during telephone calls, and thus allows for complete accountability on both parties side.

Yours sincerely,


[DQ Hint: For more information on the Practice Direction Pre-Action Conduct, please follow this link
http://www.justice.gov.uk/courts/proced ... on_conduct]



Something to consider is what happened to all the other debts that were included in the IVA, it is possible that these have also been sold on.

Tim
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ByJaneClack
#472136 I have also had a reply back from the Insolvency Practitioner - he says

Limitation period starts to run from date of last payment to the debt so in this case it would be date of last distribution in IVA.

Looks like it won't be statue barred until 2017


That does not mean you should not take Talbot Woods advice so you could try.
Byohdearme3
#472140 Thankyou both for quick advise and support. I will try your letter Talbot. I have pm'd you both.
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