debt from 1996

[valeriej43]

I keep getting letters from various debt collection agencies regarding a debenhams debt from 1996, it has been passed from one DCA to another, this morning i have got a letter from Aktiv Capital, threatening legal proceedings,or may instruct scotcall to act on their behalf
I assume this debt is now statute barred, so should i just ignore this threatening letter,or ring them and remind them its statute barred, just fed up of these letters now,thank you in advance

[FlamingParrot]

Re: debt from 1996

I keep getting letters from various debt collection agencies regarding a debenhams debt from 1996, it has been passed from one DCA to another, this morning i have got a letter from Aktiv Capital, threatening legal proceedings,or may instruct scotcall to act on their behalf
I assume this debt is now statute barred, so should i just ignore this threatening letter,or ring them and remind them its statute barred, just fed up of these letters now,thank you in advance

Whether it's statute barred or not depends on when you made your last payment.

As per OFT guidelines, DCAs can still chase for SBd debts but should stop chasing once the debtors has informed them that the debt is SBd and will not be paying it, if you want to get rid of them you should send them a letter, no point in ringing them, keep it all in writing:

Dear Sirs

Statute Barred Account No: xyz

You have contacted me regarding the account with the above reference number, which you claim is owed by myself. I would point out that under the Limitation Act 1980 Section 5 "an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued".

I would also point out that the OFT say under their Debt Collection Guidance on statute barred debt that "it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period". The last acknowledgement to this debt was made over six years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from me in the relevant period under Section 5 of the Limitation Act, I suggest that you are no longer able to take any action against me to recover the alleged amount claimed.

The OFT Debt Collection Guidance states further that "continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statue barred could amount to harassment". I await your written confirmation that no further contact will be made concerning the above account and confirmation that this matter is now closed.

I look forward to your reply.

Yours faithfully,

[ODC]

Re: debt from 1996

If the debt is Statute Barred they cannot issue legal proceedings and therefore by threatening action they cannot take have committed a breach of the Consumer Protection from Unfair Trading Regulations and should be reported

[FlamingParrot]

Re: debt from 1996

If the debt is Statute Barred they cannot issue legal proceedings and therefore by threatening action they cannot take have committed a breach of the Consumer Protection from Unfair Trading Regulations and should be reported

Actually, they CAN! If they do, then you'd defend using SBd, which is an absolute defence. There's another thread, I think started by Gravytrain, where this was discussed.

[CleverClogs]

Re: debt from 1996

If the debt is Statute Barred they cannot issue legal proceedings and therefore by threatening action they cannot take have committed a breach of the Consumer Protection from Unfair Trading Regulations and should be reported

That's only if they know - or ought to know - that the alleged debt is Statute Barred.

There again, they have threatened to have Scotcall pester her.

[CleverClogs]

Re: debt from 1996

Actually, they CAN! If they do, then you'd defend using SBd, which is an absolute defence.

Exactly - they can issue a claim which should be easy to defend.

[ODC]

Re: debt from 1996

Ok fair enough but if they are aware the debt is Stat Barred they should know that they cannot take legal action to enforce the debt

[CleverClogs]

Re: debt from 1996

Ok fair enough but if they are aware the debt is Stat Barred they should know that they cannot take legal action to enforce the debt

No - they still can.

They merely cannot succeed if the claim is defended.

[ODC]

Re: debt from 1996

Ok if you want to be pedantic

[labman]

Re: debt from 1996

Sadly one has to be pedantic, as the DCA said they may issue legal proceedings. Let them - it won't get them far IF the debt is SB.

[FlamingParrot]

Re: debt from 1996

Ok if you want to be pedantic

Not really, let's not forget two things:

1. DCAs buy debts in bulk with little or no information or documentation about them;
2. A lot of CCJs obtained against debtors are a result of undefended claims or default judgments. Not everyone is clued up and familiar with the Statute of Limitations, many people would see a claim land on their mat, remember having an old debt and admit to it, others will just ignore the claim/not open the post/not know what to do, or papers are sent to the wrong address.

[ODC]

Re: debt from 1996

Sorry guys I did not mean to start a row...... BUT IMHO if they are told and made aware that the debt is SBed they have no legal remedy left open to them. We are both saying the same thing but IMHO if they decide to issue proceedings which they know they are not legally entitled to do then they have committed an offence under CPUTR

[labman]

Re: debt from 1996

Sorry guys I did not mean to start a row...... BUT IMHO if they are told and made aware that the debt is SBed they have no legal remedy left open to them. We are both saying the same thing but IMHO if they decide to issue proceedings which they know they are not legally entitled to do then they have committed an offence under CPUTR

I don't think you started a row! I think CPUTR would be a weak choice of legislation though - it is potentially a brilliant piece of legislation, but is massively underused, and can only be used by bodies like Trading Standards. The fact remains they will use (rightly or not) anything they can to get a debtor to pay. One could equally argue there is every reason to do so as the person does owe the money.

[CleverClogs]

Re: debt from 1996

Sorry guys I did not mean to start a row...... BUT IMHO if they are told and made aware that the debt is SBed they have no legal remedy left open to them. We are both saying the same thing but IMHO if they decide to issue proceedings which they know they are not legally entitled to do then they have committed an offence under CPUTR

I also do not believe this is a row.

First of all - and you'll love this pedantry - one is oft-times told that, in Scotland (Prescription and Limitation (Scotland) Act 1973 - link) the debt is extinguished after 5 years. This is not quite accurate, as it is the obligation that is extinguished, not the debt whence the obligation arose.

(One technique to improve one's understanding of Scots Law is to read it with a hayly refained Edinburgh accent whilst clenching one's buttocks so tightly that not even the tiniest fart could get out. It may also help to suck strong, bitter lemon drops.)

Secondly, a creditor of a debt that has become SB may yet succeed if he can shew that he was not hitherto aware of the debt due to some act of concealment by the debtor and that he brought the claim in a timely manner after he became aware of the debt.

[FlamingParrot]

Re: debt from 1996

Sorry guys I did not mean to start a row...... BUT IMHO if they are told and made aware that the debt is SBed they have no legal remedy left open to them. We are both saying the same thing but IMHO if they decide to issue proceedings which they know they are not legally entitled to do then they have committed an offence under CPUTR

Have found the relevant thread I was thinking of, see below. They can still issue proceedings, it's up to the debtor to defend using the Statute of Limitations.

Unfortunately the court will seldom raise an action off its own initiative.
If the defendant does not raise the fact that the agreement is statute barred then the court will enforce the agreement(at least in England and Wales).
I am unsure abut the case in Scotland where the legislation is different as indeed is the judicial process.