What restarts the clock on a shortfall?greenspun.com : LUSENET : Repossession : One Thread
Does anybody know what actually constitutes acknowledging the debt and thus restarting the 6/12 year 'clock'?
Is it merely contacting the lender/agent, making a payment or offering to make a payment?
I'd appreciate some advise as I think I've made a horrible mistake.
-- Jonathan Smith (email@example.com), July 31, 2003
Making a payment if not done on an ex gratia basis or without prejudice will restart the limitation clock. An offer to make a payment (again if not done on an ex gratia/without prejudice basis) is likely to constitute an acknowledgement, but where it is not clear cut it's still very much a grey area. You say merely contacting the lender/agent, really, it would depend on what was written in these communications, you really need to get an expert adviser like Ahmed Butt for example to take a look at your paperwork. Even then you may find you can only get the answer if and when the case goes to court. This is why I continually warn people to always state on ANY communication with lender/debt collector, solicitor etc. that they do not acknowledge the debt, that they dispute it and deny liability, and that they instruct ANY third party in writing (keeping a copy of the letter) working on their behalf to do the same. Any negotiations should be made on an ex gratia basis, with "Without prejudice" written on all letters. Also beware in joint mortgages of any ex partner acknowledging the debt by making a part payment (there is some dispute over this, see previous postings, there could also be a DPA issue here too). Telephone calls cannot acknowledge the debt.
There may be the possibility of resiling on an acknowldedgement, but this hasn't, as far as I know been tested out in shortfall cases. Bird v Birds Eye and Gale v Super Drug touch on the subject, but aren't limitation cases I believe.
Hope this is of some help.
-- M Amos (firstname.lastname@example.org), July 31, 2003.