Author Topic: Failed IVA and Fairfax Solicitors  (Read 2996 times)

charlotte9178

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Failed IVA and Fairfax Solicitors
« on: Apr 15, 2011, 11:18:46 AM »
Hi

I was hoping someone could shed some light.

In June 2006 my husband and I entered into an IVA with Debt Free Direct for debts amounting to £40k.
DFD charged us £458 a month and we paid this happily until March 2008 when I lost my job and discovered I was pregnant. In June 2008 after much soul searching I asked DFD if they would fail the IVA with no consequences as bankruptcy would affect my husband's career, he is an Accountany. DFD obliged and we were told 'you're on your own now'.

Since January 2011 we have been contacted by Fairfax, who as we know are Max Recovery!, asking for repayment of two debts from the IVA. One in my name and one in my husband's. On 17 February 2011 we had a letter from Fairfax asking my husband to make contact regarding a debt. I called them and discovered the debt was an IVA debt and so I arranged to pay the Agent £20.00 a month and £20.00 over the phone as a token payment for the debt which was a store card from Argos.
My husband set up a standing order for £20.00 to pay Fairfax and their first payment was March 23rd 2011.

On Monday this week, 11th April, we had a letter from Fairfax which was very odd pertaining to another one of the IVA debts and which totalled £8k. Their letter implied they had made contact and we had ignored them. I spoke to them and the man said that the debt was from a loan to the AA, which we knew, and that he wanted payment. Immediately I thought, Statute Barred. This was because the other two debts had been floating around for a couple of years and I had ignored them but now as a respectable working mother I wanted to face my debts. That being said, the AA or Max Recovery failed to make contact since 2008.
I declared Statute Barred as I was recently told that even though the debts were in the IVA that doesn't automatically acknowledge the debts, only when a payment is made on the debt does that acknowledge the debt. Since our IVA was failed DFD never paid a penny to our creditors and took the £5k in the pot for their fees.
I spoke to DFD today who confirmed this, but it was one of their agents and not a Specialist so I am querying the accuracy of this information.
If that is the case then Fairfax cannot chase me for the debt as the last payment on the debt of the AA was nothing. We borrowed the money and failed to pay them a penny. The debt was taken out in 2003/2004.

This is where it gets good! Upon telling Fairfax that the debt is Statute Barred this arrogant, rude little man rudely declared to me that he had received a payment of £20.00 on the 17 February 2011 which I declared was for the Argos debt. He disputed this. I have demanded a copy of the telephone transcripts and any notes on the case file of my husband via the Subject Data Access Request as the telephone conversation I had with this little hitler on 17th February 2011 will show the payment was intended for the Argos debt and we had no knowledge of them buying the AA debt prior to Monday 11 April 2011.

I have written that letter today enclosing a postal order for £10, the fee for the data but I can forsee that I shall be having to argue with them for a long time.
The National Debt Line told me that this £20.00 which they, and I believe have dishonestly, allocated to the AA debt it's fruitless anyway as any debt older than 6 years is Statute Barred and cannot be reawakened after this time.

I am 36 weeks pregnant and I do not need this stress. My husband isn't very good with debt, he hides his head in the sand where I prefer to face it and get it over with.
I believe we should all pay our debts but this AA debt is Statute Barred.

My question is....is the DFD agent correct? Even though the AA debt was in the IVA, as no payment was ever made the debt became Statute Barred from the date it was defaulted on which would have been 2003/2004 and before the IVA?

Any further advice would be fantastic also.

James Falla

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Re: Failed IVA and Fairfax Solicitors
« Reply #1 on: Apr 19, 2011, 06:29:29 PM »
Hi Charlotte
 
The rules surrounding statute barred debts seem to be murky and unproven. However, my current understanding of the Limitations Act 1980 (which is where the statute barred legislation hails from) is that the clock starts ticking from the time the creditor stated that the debt was in default and demanded full payment. If 6 years has passed but the creditor has made no further attempt to enforce the debt (ie not taken out a further CCJ against you) then the debt becomes statute barred whether a payment has been made towards the debt or not. If a CCJ is taken out, the 6 year clock starts from then again.
 
I believe that this is what the Act states. However I am not sure whether there is any recent case law to back it up (I am doing some digging). As such, to get a creditor to back down 100% under this arguement would probably require you to take them to court. Or for them to try and take you to court to enforce the debt which you would then have to challenge.
 
If I get further information I will let you know.
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