When does the 6 yr rule on claiming debts start.

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Re: When does the 6 yr rule on claiming debts start.

Postby victor508 » Mon Aug 03, 2015 5:06 pm

Hi Mr Sheen,

Their defence or mention of it was sent to me on a compliment slip.
It said please find enclosed a cheque for ***.** in part settlement of your claim against our company.
Our defence against the rest of your claim has been sent to the court. Regards. * ****.
I had to send a copy to the court and defendant , they don't and get away with it.
I phoned the court to ask why and was told take it up with the judge.
I have documentary evidence , there are 4 points , they agreed 1 and the other 3 can be answered by them , but they have so far refused , so to me the six years have not started as they are with holding evidence .

Victor.
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Re: When does the 6 yr rule on claiming debts start.

Postby mr sheen » Mon Aug 03, 2015 5:19 pm

So they have settled with you as far as they are concerned by sending the cheque.
They clearly dispute the amount that you are claiming rather than claiming that the statute of limitations applies.
So the additional part is disputed and you will need evidence of the additional amount you are claiming and hopefully you have good clear records but after this length of time that may be dubious and they are taking a chance that after this length of time you haven't got such records because if you had, you would have sent copies of the records to them to try to settle the case and get more money back.
Unless you have good proof of the additional amount, you risk losing. They are likely to claim that they have settled the matter for all monies for which you have provided proof. The rest is disputed and you have the burden of proof and have to provide the evidence for what you are claiming...they just have to say that they have paid you for all evidence you have submitted.

They haven't withheld evidence, they don't have the burden of proof. Their defence may be that they have paid in full for all money owed for which you have provided substantive evidence, in which case they don't need to provide anything else.
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Re: When does the 6 yr rule on claiming debts start.

Postby victor508 » Mon Aug 03, 2015 6:06 pm

Hi Mr Sheen,
Thanks for the interest , this only makes me more determined to prove my case , to you and them.
Of the 3 remaining items left.
1. is a sum just short of £1200 this is shown on their spreadsheet sent to me , the 1st and 2nd column show the difference , when asked where the money is the reply was we don't have it so it must be rent unpaid by tenant , so they admit it is unpaid , we enquired why a tenant was allowed to keep their bond with such a bad debt , a letter was sent to us with a cheque for £*** in lieu of the bond "which should have been returned to him to cover rent arrears". (Their exact words). They had it for nearly 5 yrs ,
2. is a cheque they told me for years was paid to my bank as a DD , i said no it was not and showed them a copy of my bank statement , when the ombudsmen got involved they then decided to ask their bank for the old cheque back to prove me wrong , they sent me a photocopy of this cheque it was made out to cash , they
said as it was for a sum no other customer had been paid therefor i must have had the cash , so i asked for a copy of their cash receipt with my name on , i am still waiting.
3. is another simple matter , moving out date , they say one month and i say 2 months later , they said the earlier date to tie in with their dodgy accounts.
the tenant moved to another property rented by the same company , would you do that with a £1200 debt , i said check when they moved in the new property and no 3 is solved , i am still waiting.
i phoned the council and enquired when tenant moved out , sorry i can't give you that information ( Privacy act), so i said can you tell me when my name went back on the register for that property , they told me it was 2 days after i said the tenant moved out. Sounds good to me , so i now have a copy of the document from the council , stamped and ready for court.
Are you coming around to my side yet , i am using this as my pretend day in court.
All views welcome,
Victor.
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Re: When does the 6 yr rule on claiming debts start.

Postby COGGY » Mon Aug 03, 2015 6:50 pm

Hi Victor

As you say you are using this as your pretend day in court, may I ask some questions which I think may be asked in court? Was the property managed by the Agents? If so then surely you would have received monthly statements, setting out the amount of rent paid, the commission deducted and the amount carried forward. Did you actually receive this information monthly or not? If so then did you check the same and make sure the money was in your Bank. If not then the Agents are negligent in not providing this information.

Who does your tax return? Whoever is responsible for that would have needed all the information to do so.

I ask as you have not mentioned this point and I feel sure it may come up in Court. At present you still have time to look up this information.

Kind regards
Coggy
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Re: When does the 6 yr rule on claiming debts start.

Postby victor508 » Mon Aug 03, 2015 7:28 pm

Hi Coggy,
Thanks for that , i will be on guard for the court grilling ,i am trying to cover all options.
Made a mistake of using a housing benefit tenant ,due to the council not the tenant , they took
3 months to make payment ,but as i was being paid by DD i did not notice until as you noted the first accounts were being sorted.
The accountant works from DD payments in statements not on what is owed. I used to get statements monthly then they stopped during their sloppy period.
I was so busy i did not pick up on it until the accounts were being sorted , i was running a building business ,in a dispute with a neighbour over a boundary to plot i had bought and building the house for my retirement.
o joy,
Victor.
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Re: When does the 6 yr rule on claiming debts start.

Postby COGGY » Mon Aug 03, 2015 7:48 pm

Hi Victor

You have my sympathy. We all have times when troubles keep coming. We just think one problem is solved and another pops up. That does help us to appreciate the good times. Have you made lots of notes for Court? If you are well prepared they may not ask much. Go along unprepared and they will ask everything. Not that I have experience of Court but that is what often happens in other instances. We get all worried and things work out well and easily. We go along thinking all will be well and it is not.

I wish you well in Court. Is this your first experience of letting? Did the Agents write and ask your permission to return the deposit to the tenant? Surely if they returned the deposit, with or without your permission, when rent was still owing they are not fulfilling their part of the Contract. Have you read through the Contract you signed with the Agents?

Kind regards
Coggy
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Re: When does the 6 yr rule on claiming debts start.

Postby mr sheen » Mon Aug 03, 2015 7:51 pm

Hi Victor
I'm completely impartial and just raising points to try to help you get the best outcome.

I get your points but whatever you claim needs hard evidence since they have partially settled what they believe you can prove and are forcing you to prove the rest of the claims you are making in the belief that your evidence isn't good enough.

No.1 - are you saying that they gave you the tenant's deposit in lieu of rent owed?
If so, when tenants leave without paying rent, the holding deposit is all one is likely to get from people who are of limited means. So this is often the best of a bad situation and you may have to accept this as most landlords would.
No. 2 - they have a cheque but you have burden of proof so they don't have to prove it, you have to prove you didn't receive the money and this is where time may be against you.
No. 3 - they say and you say ...but there are no accurate records...again your burden of proof. Short of bringing the tenant in to say when he moved out, with no proper records this may be a problem too.

The other issue is the contract you had with the agency which should set out the basis for your business relationship with them. What was their responsibility?
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Re: When does the 6 yr rule on claiming debts start.

Postby victor508 » Mon Aug 03, 2015 8:19 pm

Hi Coggy,

I have presented a large file of all relevant documents,letters etc at the court and to the defendant.
the defendant has presented nothing.
They returned the bond to me as part payment of money they deny owing.
It is like a nightmare.
This is the fourth set of tenants but the first where payments by the council was involved.

Victor.
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Re: When does the 6 yr rule on claiming debts start.

Postby victor508 » Mon Aug 03, 2015 8:42 pm

Hi Mr Sheen,
you said
No. 2 - they have a cheque but you have burden of proof so they don't have to prove it, you have to prove you didn't receive the money and this is where time may be against you.

i can't get my head around that way of thinking. The only proof with cash is a receipt with a signature , every business has to have a cash book by law , if they destroy it when it was asked for before the 6 yr deadline is surely illegal.

I think the next copy and paste proves my point on the 6 year rule

You have contacted me regarding the account with the above reference number, which you claim is owed by myself.

I would point out that under the Limitation Act 1980 Section 5:

“An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

I would point out that in their Consumer Credit sourcebook, the Financial Conduct Authority states the following rules:

"...a firm must not attempt to recover a statute barred debt in England, Wales or Northern Ireland if the lender or owner has not been in contact with the customer during the limitation period." 7.15.4

"A firm must not continue to demand payment from a customer after the customer has stated that he will not be paying the debt because it is statute barred." 7.15.8



The last payment or acknowledgement of this debt was made over six years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written acknowledgement from me in the relevant period under Section 5 of the Limitation Act, I suggest that you are no longer able to take any court action against me to recover the alleged amount claimed.

I can prove evidence of payment and written acknowledgement.

Victor.
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Re: When does the 6 yr rule on claiming debts start.

Postby mr sheen » Tue Aug 04, 2015 9:13 am

Hi Victor
The rules relating to FCA will not really be relevant where you have chosen to resort to the legal system instead of their mediation services.

Did the mediation indicate that they owed you more than they have tried to settle for? Quoting the FCA rules at the Judge probably won't go down well since that is supposed to ensure that these matters don't have to go to court but it has failed in this case.
Costs may be in issue here as well, since they have settled with a figure and if the Judge believes that settles it, they will probably be awarded costs.

Obviously you are taking a risk but believe that your evidence is strong enough to warrant more than they have given you. If you get more you will probably be awarded costs too.

I still think they may try to settle on the steps....hope you have a figure in mind that you would accept in case of this situation arising.

Best of luck. Let us know how you get on.
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Re: When does the 6 yr rule on claiming debts start.

Postby victor508 » Tue Aug 04, 2015 10:46 am

Hi MR Sheen,
Thanks for that advice , i am finding it difficult to find the limitations act in plain english ,see the one below , do you think that could be taken to court as it does not involve the FCA , on most of these helpsites they say the same thing "no acknowledgment or payment for 6 yrs" is the rule and the last line states if acknowledgement or payment is made that starts the process to day 1 again. Any thoughts welcome so i can get the best result possible without looking foolish.

Mediation was cancelled for the second time , the first time they asked if there were any periods we could not do ,we gave 1 week holiday , the defendant gave 2 weeks holiday , 1 week was overlapping ours , that left 2 weeks in that month's window , mediation got back and said all those days were booked , we will arrange a new slot. In the mean time they sent out the court date , followed days later by a new mediation letter , i rang as soon as i received it and said i was happy to mediate , you have to notify at least 14 days before the court date or mediation is cancelled , i could see the date fast approaching and no answer from the defendant. So i rang mediation to ask if they were going for mediation and was informed the defendant rang and was available for only 1 day in that month , we rang you and left a message to contact us , i had been checking my inbox and the post box daily , nothing , so i went to my mobile and checked and a message had been left 2 days previous , this 1 day had now gone so it automatically goes to court. I am hoping the judge had a good breakfast.

Do you know if unpaid rent is classed as an unsecured debt , most of the debt sites are angled to joe public not landlords.

Victor.

Copy and paste.
Debts like these are covered by the Limitation Act 1980, which is a statute of limitations that provides time scales as to how long a creditor can chase you (the debtor) for an unpaid debt.

The Limitation Act 1980 only applies when no acknowledgement of a debt has been made between you and the creditor for six years for unsecured debts or 12 years for mortgage shortfalls and secured loans. This law only applies to residents of England and Wales.

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When does debt go out of date?
If the creditor fails to maintain contact with you for six years or more, you may be able to claim that the outstanding debt is statute barred under the Limitation Act 1980.

This means the creditor cannot use the legal system to enforce payment of the outstanding debt.

The time limit starts from when you last acknowledged owing the debt or made a payment to the account.
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Re: When does the 6 yr rule on claiming debts start.

Postby mr sheen » Tue Aug 04, 2015 1:24 pm

Hi Victor
Sorry I haven't got any direct answers but will share my thinking......
If the tenant didn't pay rent (or the agents deny he paid it! And have no records of it) then it would depend upon your contract with agents as to their liability for unpaid rent or collection of it...so this is possibly a complication about who should be the defendant. The agents may claim that they have forwarded all money they collected to you along with bond they held. I would say that statute of limitation will bar you from recovering from tenant, or Council either if that is relevant.

So liability of agents specifically needs to be examined in relation to the outstanding monies you claim they still owe. You mention unpaid rent and if rent was not paid to the agents, why do you believe they are liable for paying money they didn't receive? ...or is this not the scenario? The agents may claim the debtor is the tenant.
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Re: When does the 6 yr rule on claiming debts start.

Postby COGGY » Tue Aug 04, 2015 2:46 pm

Hi Victor

If the Agents were collecting rent and the tenants did not pay, then the Agents are responsible for notifying the Landlord of this fact. Did they ever notify you that rent was unpaid? Surely if this is the case and they did not notify you they are at fault. We let property, we pay the Agents to manage the property and they always report to us. They also hold a certain sum which is specifically to take action against unpaid rent etc. It does seem a very very long time that this has been going on. Have you looked back at all the emails, letters etc received from the Agents? I do not see how they can justify taking money each month to manage the property (if this is the case) and then not contacting you immediately there is any problem. Have you read carefully through the Contract you hold with the Agents?

Regards
Coggy
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Re: When does the 6 yr rule on claiming debts start.

Postby victor508 » Tue Aug 04, 2015 3:53 pm

Hi Mr Sheen and Coggy.
Something happened in that company in the last year of this rental. i asked where the statements were and why had they stopped sending them,
to date i have received only 1 .
I have asked for copies of the cash payments made by the tenant , so far i have received nothing.
I have asked for a copy of my signature on a cash receipt for a sum of money not paid to me.
I have asked for them to confirm when the tenant moved out , easily done as the tenant moved to a let by the same agent.
Council are not allowed to tell when the tenant stopped paying council tax at my property.
I know the tenant , he used to work for he is as honest as the day is long, he told me he took the cash up every 28 days and was told i wish all my tenant were like you , when i asked why he did not pay by DD his reply was he was told it had to be by cash.
By period 28 the tenant was over £800 in arrears then £900 was paid in on period 30 , 31 no payment , leaving a tenant shortfall of close on £ 900 (when he had paid in every time)I asked the agent if he owed that much why did you give him his bond back ,a later reply said we have found £500 bond in our account , a mistake , sorry,the letter said it was to go towards the tenant shortfall.
From the start of this i have asked for all receipts for cash payments by tenant , still have not received 1.
I have since worked out that the council money was short by over £300.
Soon be over one way or another.

In relation to why are the agents liable for rent unpaid by the tenants , the answer is they were paid to collect it , the tenant said he paid it ,it is up to the agent then to do 2 things as per the contract, 1, inform me , and 2. supply me with copies of cash receipts from the tenant so i can check which are unpaid.


Victor.
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Re: When does the 6 yr rule on claiming debts start.

Postby COGGY » Tue Aug 04, 2015 8:06 pm

Hi Victor

You stated

In relation to why are the agents liable for rent unpaid by the tenants , the answer is they were paid to collect it , the tenant said he paid it ,it is up to the agent then to do 2 things as per the contract, 1, inform me , and 2. supply me with copies of cash receipts from the tenant so i can check which are unpaid.

If the Agents are managing the property then you are paying them to check that anything due has been paid. If they did not do this then surely they should also refund to you some of the management charges made by them, as they were taking this money in error.

Kind regards
Coggy
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