CML..Fact or fictiongreenspun.com : LUSENET : Repossession : One Thread
On reading some of the previous posts relating to the voluntary agreement members of the CML have entered into pertaining to the 6 year rule, I am yet to find a case where the Building Society has given up their claim ONLY on the fact that they are time expired. I have come across cases where their pursuits for the shortfall debts has ceased when the defendants have brought to their attention that they are time expired BUT only where there are other factors involved. Namely the building society realises they have insufficient evidence and will probably loose anyway.
An extremely helpful get out clause the building societies (or their agents) have, is the fact that they can always claim to have instigated their pursuit prior to the 6 years from property sale. ‘We’ve been writing to you at various addresses for the past X years’ is a common sight in the letters solicitors write. A fact that cannot be proved either way but one that apparently stands up in front of a judge. Consequently, in the event of a defendant being chased after six years there is little hope that this rule alone will be sufficient to exonerate them. (If the society believes it has got any chance of getting any money) Or does it? I would be keen to know of any successful cases where the building societies have backed down after a defendant has brought to their attention the 6 year ruling and there are no other factors known to be involved. I would also be grateful for any sample letters people have written either to building societies or solicitors relating to time expiry. Be it the 6 year CML code or the 12 year limitations act.
-- paul delouche (firstname.lastname@example.org), March 11, 2004
My own case did not really involve the CML code, but it did involve the Limitations Act (Scotland) to a certain extent. I felt my lender settled with me on my terms when I brought to their attention that under the Limitations Act (Scots Law) that their pursual was time barred. In Scottish Law a lender has to take court action to recover a debt like a mortgage shortfall within FIVE years. The fact that they may have written several letters does not count. Providing the debt has not been acknowledged and no LEGAL action for recovery has taken place...TOUGH...they are time barred - Scots Law only
Don;t know if this is what you are looking for but it might help someone in Scotland fighting a shortfall/debt.
-- Moira (Anderston828@aol.com), March 11, 2004.
I know Mike Thomas of MTC Ltd has had some success with using the CML code, and BSs have backed down, but prior to going to court. See his website on: >http://www.mtc.as/index.htm< . A solicitor I know always insists the lender provides proof in the form of a recorded/registered letter.
-- M Amos (email@example.com), March 15, 2004.
A debt letter is considered served by the court if it is sent normal post.
Also as the CML policy is purely voluntary i fail to understand how a solicitor could 'stand their guns' requesting proof of delivery?
If the lender was to proceed to court the solicitor would not be able to use this argument - in fact after 1997 Building Societies Act SI even statutory notices ( A legal requirement to notify the borrower of the sale price) were no longer required to be sent recorded delivery
THe lenders attitude would be 'we have no proof of delivery however the letter was never returned to us therefore indicating it was received', As you say 'prior to court' - you can say what you like but if they decide to take to court the courts gonna agree with the lender on this one.
-- who?? (firstname.lastname@example.org), March 18, 2004.