Now discover after my IVA with PayPlan is over that shared bank account was not fully covered.

[TonyF]

I guess this from the nationaldebt line is the crucial factor that means statute barred is not applicable to us:

A simple contract debt will normally be statute-barred if:

the creditor has not already obtained a county court judgment (CCJ) against you; and
you or anyone else owing the money (if your debt is in joint names) have not made a payment towards the debt during the last six years;

That sadly seems pretty clear that because I've paid them in the IVA, statute barred doesn't apply.

[Adam Davies]

Hi

You may find that the creditor will accept the 3k as a short settlement, start by offering 2k if you are unable to get the debt reduced/written off.
Please keep us all informed of any news/update

Regards

[TonyF]

Longslog: just an update...have had it confirmed that 'Statute Barred' not applicable because it refers to the account not the individual, so because I made payment via the IVA the 6 year role does not apply. Sadly. Looks to be a real uphill fight, because the dispute - if one exists - appears to fall upon the issue of whether they could or should have begun proceedings early, as opposed to leaving it for 7 years...not open-and-shut, so going to court could be risky as that could result in costs as well. I would have had no issues with paying this debt off in some manageable way under my wife's name when it was just over 6 grand, but over 13 without any prior notification is repugnant in my view.

[longslog101]

Booh.....

I would be interested in knowing what the agreement of the creditors is when it comes to IVA's and debts. Do they agree that following the term of the IVA that the debt to the creditor is settled/partially settled on the whole, or just your portion of it ?

That might be another angle ? my thought being if NatWest as the creditor has accepted that completion of the IVA settles the debt then there is no debt to recover or just settles you liability to the debt ? (I'm just guessing, but seems logical, again perhaps some CAB/legal advice).

was it a NatWest credit card or bank overdraft out of interest ? I'm racking my brains

I'm pretty sure a creditor has an obligation to advise your wife of state of account on a regular basis - especially if incurring charges.

[lifenoteasy]

Section 86(b) of the Consumer Credit Act 1974.

I knew those arrears letters from creditors would come in useful some day!

[TonyF]

My part of the original debt (bank overdraft) was settled by my IVA, but my wife is responsible for settling hers. I am going to issue a complaint and attempt to limit this due to the fact that they could have informed my wife of this 7 years, and by not doing so gave her no chance of settling the debt back then when the sum would have been little more than £3,000. I am waiting to her from CAB as to whether this is enough to risk going to court, or whether I can only rely on letters and - probably - the Ombudsman - to fight the ultimate payment. I have no problem paying the original debt - but not this.

[longslog101]

Re Legal costs, because of the amount it would be in the small claims court (they could file to have it heard in a different level of court, but you can ask it is moved to small claims) you then can defend yourself or as previously mentioned if you have legal cover (home insurance maybe) they could defend on your behalf.

I have been to small claims several times, very informal and easy to do paperwork if they did go down that route.

I think it is a good strategy to use the complaint process, I presume the solicitor is part of NatWest or a separate firm ? (if separate I believe NatWest had an obligation to advise they were transferring debt etc).

I'm sure the CAB are doing it for you or your free legal service but I would brush up on what the obligations are of a bank for adding charges and interest and over a period of time without informing your wife as to the state of the account over 7 years and for transferring the debt. Have you had a chance to see if you home insurance legal assistance can help re this aspect ?

Continued good luck.

[TonyF]

Many thanks, Longslog. I am currently looking into whether anything I have - or my wife has - might provide any form of legal cover of this sort. Thanks for your best wishes. Even is small claims...if we lose are we not responsible for their costs if we had to defend it ourselves?

[longslog101]

meant to add, even I you lose in small claims, normally the only costs you have to pay are the court fees which are a few hundred pounds, no crazy legal fees etc.

[lifenoteasy]

You can always seek arbitration and the costs are lower.

[longslog101]

useful links

https://www.citizensadvice.org.uk/law-a ... ll-claims/

https://www.citizensadvice.org.uk/consu ... t-hearing/

http://www.which.co.uk/consumer-rights/ ... ims-court-

http://www.stephensons.co.uk/site/indiv ... if_i_lose/

[longslog101]

Yes mediation services is good, when the claim arrives against you and you file a defence you get a form asking if you want to go into mediation.

All depends on the legal advice you have and how strong you feel your defence is. For example if you with help of legal assistance, google, consumer action forums (these are very very helpful - legal section) conclude that there is n way that amount is due and a much lesser amount is due you can offer that as a settlement along with a written statement in your defence of why you are offering that.

Much better to exhaust the complaints procedure first and then ombudsman and then failing that this process would start.

on a further note, even if you lose a small claims, I lost one of mine the judges are reasonable, it doesn't mean a ccj against you straight away, thejudge proposed in that instance something called a tomblin order, this means, you have X days/weeks/months to pay it, if you do then it all goes away so you don't get a CCJ.

so in effect in that instance I had to pay the other sides small claims court application fee, but it was worth it in event I won, then I just paid amount owed plus the £200 odd and there was no CCJ and nothing on credit file.

This was a few years ago. process may have changed, the above is all based on personal experience, no legal qualifications etc

[lifenoteasy]

Sad that we end up thinking like a lawyer:(

[longslog101]

font size="1" face="Verdana, Arial, Helvetica">quote:<hr height="1" noshade>Originally posted by lifenoteasy

Sad that we end up thinking like a lawyer:(

it's the only way to know when a threat is a justified threat or just trying to scare you, I have learnt through experience you have to fully understand and learn the game of the enemy and what rules and processes they must have complied with in order to make good its threat [;)] and then understand the possible outcomes. if the risk to reward are on your favour..... e.g. without knowing what the requirement of lenders are for accumulating interest and debt the risk of a potential technicality voiding this debt is imho worth it for the cost of a few hundred in small claim court fees. (lay person view)

[TonyF]

Thanks for all this amazing advice and weblinks.

One more question if I may: If we end up along the court route - that is if my complaint and Ombudsman leave us where we are now - if we go down the path of mediation and that mediation isn't successful, can we opt out of the court action at that point or are we boudn to go forward if mediation fails.

We have the figure now that in March 2008 when the IVA began we owed £6,070. My dispute, as i've made clear, will be that they could have and perhaps should have made my wife aware then they would pursue her for her half. Now, I would be willing to pay her half now as it stood then, so if the current strategy fails I wonder whether to make a full and final offer of half that amount. At the very least if we end up in court it shows a willingness to accept the original debt - which I'm not complaining abour or disputing.