I was repossessed in 91' Royal Sun Alliance through their solicitors are chasing me for the shortfall after they paid out on the MIG. when the property was sold a year later in 92'. does the 12 years start from then or from missed mortgage payments?

-- joanne smithers (topuppersonnel@btconnect.com), July 30, 2003

Answers

Joanne,

The 12 years usually runs from the 2nd or 3rd missed mortgage payment (see Bristol & West v Bartlett - July 2002), however, you need to check your mortgage terms & conditions to be certain, it could be, for example from the 1st missed mortgage payment. It does not start from the date of sale. What you need to be very careful about is not to acknowledge the alleged debt, or if it was a joint mortgage the partner does not acknowledge the debt, this can restart the limitation period. See previous postings on acknowledgements. Furthermore, you need to find out whether an MJO has been issued, if so, then (in theory) a lender can pursue you indefinitely, although I haven't heard of a single case where this has happened, yet. Have you got a copy of the MIG ? I believe there may be an issue regarding MIGS prior to '92, but I'm not sure about that. Good Luck.

Mark.

-- M Amos (idgroms@hotmail.com), July 30, 2003.

I see Royal Sun Alliance are chasing quite a few people for ancient repos, they must be getting strapped for cash. I wonder if they're going under ??

Mark.

-- M Amos (idgroms@hotmail.com), July 30, 2003.

Joanne The accrual of the cause of action begins at the point where the whole debt becomes payable. You will find this is the lenders terms and conditions, and as has been explained this is normally after two or three months missed payments. I have also seen it written as “two consecutive months”.

Once you have decided where the accrual of the cause of action is as per section 20 of the Limitations Act 1980 you then need to refer to section 29 which states that accrual of action restarts upon an acknowledgement or part payment. In effect it’s the last time a payment or an acknowledgement was made.

If a Money judgement was issued at the point of repossession or at some later stage the feeling is that they can chase you indefinitely. However, section 24 of the limitation act 1980 states…………..

24 Time limit for actions to enforce judgments (1) An action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable. (2) No arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.

Although I have not been able to find a definitive answer, I believe that a creditor cannot issue a claim twice for the same debt – maybe someone can enlighten me.

As for being chased by Royal Sun Alliance or their solicitors. The Insurance company have no authority to chase you unless they have rights of subrogation.

Subrogation means Substitution. Used particularly of the right of an insurer who has paid a claim to succeed to the rights of the insured.

You need to establish dates etc as Curtis Solicitors have a nasty habit of issuing a Statutory Demand. These can be set aside but you only have 18 days in which to do so. The defence is usually the same – they never complete the stat demand properly giving all details of their claim.

I am unable to answer personal emails at the moment as I will be away from Friday – but keep us all posted of your progress and good luck.

I hope this helps

-- lexie (lexie.fabriane@ntlworld.com), July 30, 2003.

The following is a clarification (items 1-6) in respect to Money Judgment Orders, which isn't mine in fact, it comes from a solicitor.....

1. The lender can ask for an MJO on getting a possession order or within the 12 year limitation period.

2. Once the 12 year period has expired, any money claim is statute barred(if defended)

3. Where an MJO is obtained within the limitation period, the judgment can be enforced.

4. Where it is intended to enforce the judgment by way of execution of goods, leave of the court must be obtained where 6 or more years have passed since the judgment became enforceable

5. Where it is a vol repo, no possession order therefore no MJO on possession, but lender can issue a money claim within 12 years. In vol repo situations there are sometimes difficulties establishing when the cause of action accrued, e.g. if there were no arrears when the keys were handed back.

6. To reconfirm, the creditor only needs leave where more than 6 years have passed and it wishes to used execution against goods, as in 4.

To put numbers 4 & 6 into plain English, what is meant is, that if a lender has an MJO and more than 6 years have passed they need to return to court to get leave to enforce the order anew. Although the court may take a dim view of the fact that the lender has left things for so long. The case about the enforceability of money judgments is actually a House of Lords decision: Lowsley and another v Forbes - 29.7.98. You can find the full transcript on the Parliament website www.parliament.uk.(My comment-Mark)

Also in a message to me from the same solicitor...... "The point confirmed by Lowsely in the H of L has been settled law for some time - starting with Lamb v Rider (1945) 2 KB 428, CA, Nat West v Powney (1991) Ch 339, CA, and Lowsley in the CA.

A creditor will be able to sue again on an existing judgment where it has been impossible to enforce the debt using the normal methods - e.g. because it was impossible to execute on the judgment debtor's foreign assets (ED and F Man v Haryanto (the Times, 9 August, 1996, CA). If the normal methods of enforcement were available, suing for the same debt a second time will be an abuse of process, although it is up to the debtor to prove this (Pritchett v English & Colonial Syndicate (1889) 2 OB 428).

In England and Wales the rules concerning the enforcement of judgments are to be found in the Civil Proceedure Rules (CPR) - see CPR Schedule 2, CCR Order 26 rule 5 (County Court) and CPR Schedule 1 RSC Order 46 rule 2(1). These say, as you said, that ct must give leave if the judgment is more than 6 years old."

There is more if anyone is interested but it does get a bit technical.

Mark.

-- M Amos (idgroms@hotmail.com), July 31, 2003.

Thanks Mark, I would be interested in anything else you have - i am currently working towards a mini web site with links to assist people who are looking for answers to those hard to find technical questions. So if you have any gems you would like to share, resources etc please either post them up or email me direct. (away next week though)

-- lexie (lexie.fabriane@ntlworld.com), July 31, 2003.

Lexie,

Looks like we're all setting up websites :)

I am happy to share info, will email you later, have to go now.

Mark.

-- M Amos (idgroms@hotmail.com), July 31, 2003.

WHy not just expand this web site?

Keep it all under 1 roof

-- who (who@idontwanttosay.com), July 31, 2003.

As regards *when* the 12 years starts - that is, when the whole amount becomes payable (accrues) - if it was an endowment mortgage, you may find it can be pegged even further back than the 2nd/3rd missed mortgage payment. In our case, when I read through the T&C of our mortgage with citibank, it stated quite clearly that the whole debt would accrue immediately if we defaulted on the associated life insurance payments. For us, this put the date back several months earlier - like many (most?) people sold endowments in the late 80s/early 90s, we really had very little idea at all of how they worked, so had struggled to keep up the payments to citibank, not realising that failing to pay the insurance was just as "bad". For the earlier correspondent who was interested in technical minutiae, this is worth knowing. Our mortgage T&C made it clear that accrual of the debt due to default on interest payments *might* occur after 3 missed payments, but was discretionary. In fact citibank didn't demand the whole amount for some considerable time after that. In contrast, the insurance default accrual option was absolute - no discretion. Oh god isn't this boring...anyway, hth

-- Melody (mbc109@york.ac.uk), August 14, 2003.