Unfortunately for people who have made payments toward to debt, or who have otherwise inadvertently 'admitted the debt', it is commonly held that this has the effect of 're-setting the clock'.
For these people, there are three avenues:
Case Law
If you have offered to pay or have admitted liability and need legal evidence that you are not bound by this offer or admission, check the following cases: Bird v. Birds Eye Walls Ltd (on 21 July 1987 reported only in the Times for 24 July 1987 but discussed in Vernon v Bosley) and Gale v Superdrug Stores PLC, CA 25 April 1996.
In Gale v Superdrug Stores plc 1996 CA, heard in the Court of Appeal, it was held that in some cases it was fair to allow a defendant to 'resile' from an admission of liability. ('Resile' means 'resume a former position', or, essentially 'withdraw'.)
In the Gale case the judges said:
'In determining whether it was fair to allow a defendant to resile from an admission of liability, it was not sufficient for the court to presume prejudice to the plaintiff but it was necessary to conduct a weighing exercise, balancing the prejudice suffered by the defendant if he was deprived of his right to resile against any prejudice which the plaintiff might suffer if the admission was withdrawn.'
The interpretations of law put forward in Gale v Superdrug were themselves based on Bird v Bird's Eye 1987, where it was held that a defendant might be permitted to resile from an admission of liability where it was just for them to do so.
We believe that it is just and fair that ex-borrowers who have been duped into admitting liability for mortgage shortfall debt should be able to resile. They might consider the following points in support of their argument that they have sufficient excuse to resile.
First, many people 'admit' liability for the debt without realising that this is what they are doing, or that they have an alternative course of action. This may have been because, for example, they filled out an Income & Expenditure form sent to them by a firm of solicitors acting for the lender. They may have been worried, depressed, and desperate, expecting that litigation would follow if they did not fill out such a form. Indeed, many lenders and their lawyers assert or imply exactly this. As a consequence, ex-borrowers may agree to make payments based on the personal information they give on an income and expenditure form.
Data Protection Law
Fortunately, however, help may be at hand from the Data Protection Commissioner. One reader, who sent such a form by Eversheds acting for Abbey National, complained to the Data Protection Commissioner that she was being pressured to fill in this form and provide detailed personal information about herself and her family. The reader objected to this invasion of privacy on the grounds that:
The reader's husband made his own, separate, complaint. The DPC was concerned. In a formal 'Assessment' of his case, the DPC agreed with the husband that if a lender implies that that an ex-borrower is under some sort of legal duty to provide such information, then 'that would certainly be misleading and if they had obtained such information as a consequence of such an approach then it is likely that the obtaining ("processing") of such data would have been inherently unfair.'
The implications of this Data Protection Assessment are that some ex-borrowers will be able to argue that they should be permitted to resile their admissions of liability on the grounds that the admissions were predicated on the unfair processing of personal data (i.e. the admissions were unfairly obtained).
Human Rights Law
Fairness and privacy are also issues covered by the Human Rights Act (Articles 8 and 6 respectively). In particular, the HRA states that any potential civil hearing still has to be 'fair' and has to be brought against them within a 'reasonable time'. (Read the section on the HRA under 'Repossession'.) It is clearly unfair if a lender, whilst deliberately keeping the ex-borrower in ignorance, lures the ex-borrower into 'admitting the debt' after six years, especially if that lender knows that the mortgage deed does not contain a clause explicitly turning the shortfall into a specialty debt, and/or if the lender has failed to obtain the required money judgement order, and/or of the lender knows that the wording of the MIG is ambiguous etc. (It might also be held that obtaining settlements on 'debts' in such circumstances is also unfair.)
It is probably also unfair (in a legal sense) if a lender claims that it waited a very long time to contact an ex-borrower, and to then bring proceedings against the ex-borrower, because it did not know where the ex-borrower was, if in fact it had the means to locate that ex-borrower. For example, many ex-borrowers complain that they held bank accounts with the lender, or had supplied addresses for the lender's files, but that the lender nevertheless waited a great many (up to twelve) years before contacting them about alleged shortfall debt. A Data Protection Assessment provided to another reader is interesting on this point. Expressing grave concerns about a major lender, the DPC writes: 'What would appear to be a basic check against other data held on [the lender's] own systems do not appear to have been carried out. Further investigation would have revealed that you already had [an account] with [the lender] and confirmed both the correct address details and the fact that [other details] had been previously verified.' Once again, we see a lender breaching Data Protection Act principles, and ex-borrowers can use this, in tandem with the principles of the Civil Procedure Rules, to establish that the lender's actions have been and are unfair and contrary to justice.
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