Having a bit of a problem with Scottcall

[labman]

Re: Having a bit of a problem with Scottcall

You're a star! Thank you.

[Bill-K]

Re: Having a bit of a problem with Scottcall

I can't answer your question I'm afraid. I think Bill K might be your best bet for that, but I'm not sure. I am not at all clued up on Scottish Law - sorry:beagle:

Don't know if this link is any use though?

http://www.govanlc.com/suedinengland.htm

Sorry guys, I am as useless as Labman with Scots Law - and am simply familiar with that particular section, as is Tuttsi.

The Govan Law Centre may well be your best bet, as it appears that we may not have an expert on Scots Law here - and I most certainly would NOT pretend to be one.

[charitynjw]

Re: Having a bit of a problem with Scottcall

http://www.moneywise.co.uk/files/debtwizard-la.pdf

The Limitation Act
Under certain circumstances, creditors are prevented
from chasing borrowers for unpaid debts – this is covered under the Limitation Act.

What is the Limitation Act?
Should the creditor fail to maintain contact with the
debtor for a period of six years or more, it is possible
to claim that the outstanding debt is ‘statute barred’
under the conditions of the Limitation Act 1980. This
means that creditors only have a fixed period of time
to chase their debtors (borrowers).
The time scale, which mainly depends on the type of
debt, begins when you last admitted to owing the
money or made a payment. However, this time limit
can be extended at the Court’s discretion.

The Limitation Act only applies to residents of England
and Wales.
In Northern Ireland, statute barred debts
are governed by the Limitation (Northern Ireland)
Order 1989.
In Scotland, statute barred debts are
governed by the Prescription and Limitation (Scotland)
Act 1973, which states that the debt itself ceases to
exist after five years providing that it has not been
acknowledged and that no relevant claim against it
has been made by the creditor.

Depending on the type of debt in question the Limitation Act 1980 has additional effects:
1. Unsecured debt
You may have assumed that your creditors have
‘written-off’ a debt if you have not heard from them for
a long period. If this is down to your failure to inform
them of a change of address the debt will still exist and
creditors are entitled to chase the debt indefinitely.
However, they cannot do this through the Courts –
instead, they may continue to write or call you
requesting the debt be repaid.
Creditors are also still able to pursue an unsecured
debt if:
• They have previously obtained a County Court
Judgement (CCJ) against you
• You or anyone else named on the agreement has
made a payment to the account within the last six
years
• You have established any contact with the creditor
(this can be a phone call or letter to request a
balance or change your details) except to deny that
the debt exists
If a creditor continues to contact you after accepting
that a debt is statute barred and you have stated that
you no longer intend to pay the debt, you may be able
to claim harassment contrary to section 40 (1) of the
Administration of Justice Act 1970.
2. County Court Judgements (CCJs)
If the creditor has previously taken you to Court and
you have received a CCJ, then you will be unable to
use the Limitation Act 1980 as a defence and to
dispute the debt.
If the judgement is over six years old the creditor may
need to go back to the Court to enforce the debt.
2. Council tax
If the Council tax was due more than six years ago
then the Council can go to Court and request a liability
order.
This allows the Council to deduct the money due from
your wages or benefits.
The Council will be granted the liability order unless
you defend the debt.
3. Mortgage shortfalls
Your mortgage lender may begin chasing you for a
mortgage shortfall, which was the result of repossession.
The time limit is slightly different for the mortgage
lenders; they have 12 years before the debt becomes
statute barred.
4. Income tax and VAT
You can always be pursued for debts owed to HM
Revenue & Customs no matter how old they are.
5. Benefit overpayments
The Department of Work and Pensions can pursue
debts after six years without going to court.
One way of recovering its debt (including overpayments of benefits) is to deduct the money from your
current benefits.
What to do if a creditor contacts you after six years
• Do not admit to owing the money
• If you accept you owe the money then you may well
be required to pay the debt back
If you are contacted by a creditor with whom you have
not had any communication with for six years or more
then you should write to it quoting the Limitation Act
1980. Do not admit acceptance or responsibility.
Send the letter recorded delivery - you can then track
and prove postage by checking the Royal Mail website
and print off the receipt.
Debt collection guidance from the Office of Fair
trading (OFT)
The OFT has issued debt collection guidance that looks
at whether a debt is being collected fairly.
It says:
• It is unfair to pursue the debt if you have heard nothing from the creditor for six years
• It is unfair to mislead you by saying the debt is still
legally recoverable when it isn’t
• It is unfair for a creditor to keep pressing you for payment after you make it clear that you won’t be paying
the debt because it is statute barred
However, it adds that it is fair for the creditor to keep
trying to recover the debt if the creditor has been in gular contact with you during this time.
If the creditor refuses to back down and you feel it
is statute barred then you can complain to your local
Trading Standards Department, which should take up
your case for you.
You can also complain to the OFT although it does not
usually take up individual cases. However, its debt collection licensing enforcement team will collect information from you that may be used at a later date to take
action against the problem creditor.
This may result in the creditor having its consumer
credit licence removed.
The next page is a template letter responding to a
creditor’s claim that you feel is statute barred.
Replace and delete any unwanted text (mainly in blue)
with your details and words, then make sure all the text
is in black font, keep a copy and post recorded
delivery.

[charitynjw]

Re: Having a bit of a problem with Scottcall

(Your name & address)
(Date)
(Insert name & address of the company
that has written or called you )

Without prejudice

Dear Sir /Madam

Reference: (insert account number and name of lender pursuing)

This letter does not admit liability nor does it acknowledge the alleged debt.

I / We write following your recent contact with myself /us regarding a debt that you claim I / we owe.

I / We would point out that under Section 5 of the Limitation Act 1980 whereby ‘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 /We would also refer you to the Office of fair Trading, (OFT) guidelines whereby it states under its ‘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”.

I /We note from my/our records that the last payment / correspondence / or acknowledgement of 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 / us in the relevant period under Section 5 of the Limitation Act then I / we suggest that you are no longer able to take any court action against me / us to recover the alleged amount claimed.

The OFT ‘Debt Collection Guidance’ further states that by continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred could amount to harassment contrary to section 40 (1) of the Administration of Justice Act 1970. I / We would also consider The Protection from Harassment Act 1997.

I / We await your written confirmation that no further contact will be made concerning the above account and
that this matter is now closed.

I / We look forward to your reply by return.

Yours faithfully

(Insert your signature) (Use an anti-tamper/secure format to ensure your signature can't be 'lifted')

(Insert your name)

[charitynjw]

Re: Having a bit of a problem with Scottcall

Limitation(Northern Ireland) Order 1989.
http://www.legislation.gov.uk/nisi/1989/1339/contents/made

[charitynjw]

Re: Having a bit of a problem with Scottcall

http://www.legalbeagles.info/forums/...512#post328512

celestine
Site OwnerSt Bernard

27th March 201327th March 2013, 21:47:PM

What is the DCA's stance on Statute Barred debts.....

Welcome to the CSA

The Credit Services Association (CSA) is the only National Association in the UK for companies active in relation to unpaid credit accounts, debt recovery agencies, tracing and allied professional services and has a history dating back to 1902.
The CSA`s knowledge of the industry remains second to none, and as the industry continues to grow and develop into a more complex specialist market the CSA are on hand to provide members with up-to-date information, on issues affecting the industry now and offering advice and guidance along the way.




http://www.csa-uk.com/media/editor/f...red%20debt.pdf

Statute Barred Debt... To collect or not to collect, that is the question?!


Lets set aside the issue of the proposed reduction to the limitation period for a moment and give a little focuson the actual collection of Statute Barred debt.
Thanks to my nemesis, the Consumer Action Group website, there is a lot of misinterpretation of statutebarred debt, what can and cant be done and the rights of the consumer and DCA.
And to make matters worse the Office of Fair Trading seem to have misinterpreted the law also...
If you are in the process of renewing or varying your Consumer Credit Licence you will be aware that part ofthe process is to complete a Credit Competency Plan (CCP1). Question 41 of the CCP1 form states:
Do you have systems in place to ensure that you do not collect statute barred debt?
You can imagine the kind of feedback I am receiving from members regarding this, a few even taking thestep not to touch statute barred accounts to avoid action by the OFT!
So, to set at ease those members, and to provide a clear picture on the misinterpretations, below is someimportant clarification:
The OFT have confirmed that the wording of this part of the CCP is inaccurate. The wording will beupdated when the CCP as a whole is revised and we will be updated on timings in due course.
Under the Limitation Act 1980, which applies to England and Wales, a debt is considered to be statutebarred when no payments have been made against it or where it has not been acknowledged* for six years.In Northern Ireland, statue barred debts are governed by the Limitation (Northern Ireland) Order 1989. InScotland, statute barred debts are governed by the Prescription and Limitation (Scotland) Act 1973 whichstates that the debt itself ceases to exist after five years providing that it has not been acknowledged andthat no relevant claim against it has been made by the creditor.
*For clarification purposes, acknowledgement is either acknowledgement made in writing or a paymentreceived against the debt. Once acknowledgement is received, this re-sets the limitation period.
Whilst the OFT accepts that the debt still exists, the OFT considers that it can be unfair to pursue the debt inthe circumstances set out in their Debt Collection Guidance (section 2.13 and 2.14a and b), and it is themethods in which the debt is attempted to be collected that can cause concern to the OFT.
In essence, providing you work within legislation and guidance, collection of statute barred accounts is alegitimate activity. However, if your debtor has stated that they will not be paying a debt because it is statutebarred, these accounts should be closed and your records updated appropriately. This will reduce thenumber of accounts that could be placed back out for collection or sale, which in turn could lead to complaintand create further issues for the industry in this area.
If you have any queries regarding this, please contact Claire Aynsley, Head of Membership & Compliance on0191 2718043 or claire@csa..com

[TUTTSI]

Re: Having a bit of a problem with Scottcall

I was not pushing you Labman, I just said that you would sort out jurisdiction and the SB letters. of course you are entitled to your afternoon nap - no one said that you shouldn't tbvh. I only tried to help both posters, but that was the limit of my understandings on SB timings. I was just trying to help. Sorry if you felt I was pushing you - far from it.

Letters posted Tutts! Sorry - my health demands I sleep in the afternoon, so there was a gap in me being online. I have a dog that needs walking as well lol!

Just for reference, I make no claims to be an expert in any of this. I'm a VERY keen amateur, but importantly, when it comes to Scottish Law, I honestly have not got a clue, so I leave jurisdiction to the Govan Law Centre who are pretty competent - link provided. :beagle:

[labman]

Re: Having a bit of a problem with Scottcall

No problem Tutts, I was more concerned with making the point about not being an expert, and thought I'd explain my prolonged absence at the same time. I didn't feel pushed - don't worry. We all have lives beyond LB!

[labman]

Re: Having a bit of a problem with Scottcall

Hi Charity,

Firstly thanks for your extensive posting - I'm glad the template letter is almost word for word identical to the one posted already.

I appreciate your efforts, but want to comment on the following:

What is the Limitation Act?
Should the creditor fail to maintain contact with the
debtor for a period of six years or more, it is possible
to claim that the outstanding debt is ‘statute barred’
under the conditions of the Limitation Act 1980. This
means that creditors only have a fixed period of time
to chase their debtors (borrowers).
The time scale, which mainly depends on the type of
debt, begins when you last admitted to owing the
money or made a payment. However, this time limit
can be extended at the Court’s discretion.

This is simply incorrect. For a start, the SB period is 12 years for some debts. More importantly, the cause of action is NOT when you last admitted to owing the money or made a payment (last acknowledged the debt in writing or made a payment might be acceptable). For a simple contract debt the cause of action is usually when your agreement says the creditor can take court action because you've fallen behind with payments. It is important that this is understood.

I posted a link to an excellent fact sheet from National Debtline on the previous page which is acknowledged within the advisor industry as being the best around. It is extensive and very comprehensive. I didn't copy and paste everything across, just put a link you could access by clicking the word 'HERE.' It also has further links to Credit Reference Agencies and other related content - well worth a read if you haven't read it already as, as I said, it really sets the industry standard in the debt advisory sector.

[charitynjw]

Re: Having a bit of a problem with Scottcall

Point taken, labman.

It was a bit of a generalisation, covered by "which mainly depends on the type of debt", & the cause of action again was too vague.

The problem though is that there is no 'one size fits all'.

For instance, in contract law, when there has been a fundamental breach of contract, it is the 'injured' party's call as to what would then occur.

They can accept the breach, & if it goes to the root of the contract, can terminate said contract*

Or they could refuse the breach & the status quo ante is preserved, the contract therefore remaining 'in being'.

Books have been written about the subject, & obviously many court cases have thrashed out the 'rules'.

That said, though, my post could have misled others, & for that I do apologise.

*Re the CCA, there are some 'hoops' to go through first.(ie a default notice)

[labman]

Re: Having a bit of a problem with Scottcall

I wasn't having a go, just correcting some of the content lol. The link I posted keeps saying phone for the cause of action as it is a pig of an area to define. This is further complicated by BMW vs Hart, which, like it or not, and accept it or not, has brought another dimension to all of this. Books will doubtless be written with chapters devoted entirely to that judgment too.

Hopefully the OP realises why I referred them to better authorities than LB though now. It can be simple, and it can be a minefield. :beagle: