Living in Scotland - DCA attempting to recover under Limitations Act (England/Wales)

[afunkymonk]

Hi Everyone

I live in Scotland and I have been contacted by a Debt Collection Agency in England who are trying to recover a debt for a credit card that I feel would be Statute Barred under The Prescription and Limitations (Scotland) Act 1973, Part 1: Prescription, Section 6.

They are stating that a payment was made by myself to the creditor in April 2009 with the credit card then being defaulted at the end of April 2009 and that the Limitation Act 1980 would therefore apply, as at this current time 6 years would not have passed, although I thought this Act would be for England and Wales only.

As I have always lived in Scotland, does the Limitation Act 1980 apply to me, I have not made any payments since the default or acknowledged any debt to the creditor and the creditor has not been in touch within the 5 year period?

I emailed the DCA to request proof of the original contract and they have just sent through a photocopy of an apparent "online" credit agreement, this does not have a signature, merely a check box adjacent to the word Signature and a date of April 2007.

Can you advise, thank you.

[MIKE770]

Re: Living in Scotland - DCA attempting to recover under Limitations Act (England/Wal

Took out in Scotland? if so statute barred, other no doubt will comment as well?

[Nibbler]

Re: Living in Scotland - DCA attempting to recover under Limitations Act (England/Wal

As I have always lived in Scotland, does the Limitation Act 1980 apply to me, I have not made any payments since the default or acknowledged any debt to the creditor and the creditor has not been in touch within the 5 year period?

No. It would be the The Prescription and Limitation (Scotland) Act 1973 in your case.

Does not matter one jot where the DCA or lender was based.

[afunkymonk]

Re: Living in Scotland - DCA attempting to recover under Limitations Act (England/Wal

Hi Mike

Yes, I have always lived in Scotland and never been in England applying for any credit and never had an address in England.

The DCA letter states "The agreement for the above account is governed by the law of England and Wales and, therefore, section 5 of the Limitations Act 1980 refers."...

Thank you.

[Nibbler]

Re: Living in Scotland - DCA attempting to recover under Limitations Act (England/Wal

That is nonsense. They are either stupid or just trying to pull the wool over your eyes.

You live in Scotland, and you are covered by the Scottish Limitation period. Whether they like it or not.

[afunkymonk]

Re: Living in Scotland - DCA attempting to recover under Limitations Act (England/Wal

Hi Nibbler

Thank you for your reply.

I had the feeling this would just be a spin-off letter to try to get me to stump up. It has taken them three months to come back to me with a photocopy since my Statute Barred template I emailed them in November 2014.

Is there a foolow-up template letter you know of intimating that the initial law stated to them is relevant and that the law of England and Wales is not applicable due to me always living in Scotland?

Thank you.

The DCA letter states "The agreement for the above account is governed by the law of England and Wales and, therefore, section 5 of the Limitations Act 1980 refers."...

Thank you.

[Nibbler]

Re: Living in Scotland - DCA attempting to recover under Limitations Act (England/Wal

If me I would just tell them that the debt was taken out in Scotland, and that you live in Scotland and so fall under the jurisdiction of the Scottish courts and their laws. That if they wish to claim otherwise then they are free to start a claim in the Scottish courts, which would be defended in full. In the meantime you will be reporting them to the FCA under CONC 7.15 for their obvious attempt to mislead you over the legal standing and enforceability of the debt in question, and continuing to make demands on a legally extinguished debt. That you will also be taking them to the FOS at the appropriate point if they do not desist from trying to recover this debt, and insist that they send you a copy of their complaints procedure.

[afunkymonk]

Re: Living in Scotland - DCA attempting to recover under Limitations Act (England/Wal

Excellent, thank you.

[afunkymonk]

Re: Living in Scotland - DCA attempting to recover under Limitations Act (England/Wal

I emailed away some useful information and standard templates and below is the response I was emailed by the Debt Collection Agency:

We refer to your complaint email dated 02 March 2015.


Complaint details (summary)

Our understanding of your complaint is:-

· That you made a request for evidence of the debt which we have failed to comply with under section 77 of the Consumer Credit Act (CCA) 1974. You state that the documents provided are of poor quality and does not contain authenticity to the original source.
· You request under section 10 of the Data Protection Act 1998 to cease processing your data in relation to our own internal records, and with the Credit Reference Agencies.
· You state that the lack of requested information constitutes a breach we may not seek enforcement of the account, and that the account is now in dispute. You state that we may not make further request for payment, and that we must not add further interest to the account.
· You state that we may not issue a default notice related to the account.
· You state that we have misled you of our legal standing and enforceability of the account, and that we continue to make demands for payment of an extinguished debt.

If any of these details are incorrect, please let us know as soon as possible.

Our findings

Having investigated the claims raised, our findings are as follows:-

• We would like to apologise that you have cause to complain. We take complaints very seriously and we hope to bring this matter to a satisfactory resolution.
• We note that we provided you with a copy of the agreement on 26 February 2015 and a copy of the original terms and conditions. The above-mentioned documents were provided to us by the original lender, MBNA (Europe) Bank Ltd. We requested these as evidence that the account was not statute barred, however we have no record of your request for these documents made under the Consumer Credit Act 1974.
• The original agreement provided is an online application and therefore would not be signed in the traditional sense. The Consumer Credit Act 1974 (Electronic Communications) Order 2004 came into effect on 31 December 2004 and changed the Consumer Credit Act 1974 to facilitate the completion on regulated agreements online. Documents can now be transmitted and signed electronically. The process is that after going through an online application process which includes ID and CRA checks, you are presented with the agreement and terms and conditions in full. You would have then clicked to accept these. The agreement and terms and conditions are transmitted in a form which allows you to print or save them. We are happy to rely on the documentation provided, and having viewed them, do not find them to be illegible.
• We note that you have made payments to the original lender prior to our acquisition, therefore assume that your liability is not in question.
• So far as your Section 10 request under the Data Protection Act is concerned, we are working under the guidance issued by the Information Commissioners Office on ‘Filing Defaults with Credit Reference Agencies’ (issued on 2 August 2007). This is intended to ensure an accurate and fair reflection of default information, and allow credit grantors in the closed user group to which such data is supplied to make responsible lending decisions. Debt buyers can continue this notification process if debt sellers remove their register entries. Because we believe the credit agreement in this matter is enforceable, and you are a party to the agreement, we feel we are able to continue collections activity and maintain an accurate record of your default at the Credit Reference Agencies, and we shall continue to do so. Should you provide us with specific data you require us to cease processing and cite the reasons why you require this. Upon receipt of the above information, this matter will be investigated further.
• In view of the above, we do not consider your dispute to be valid, therefore collection activity will resume upon resolution of your complaint. We can also advise that we have not added interest to the account since our acquisition.
• The account defaulted on 30 April 2009, and the default notice was sent to you by MBNA. This would have been sent to the address held on file by MBNA at that time.

A stakeholder notice issued by the Department of Trade and Industry (DTI) in December 2006 clarified the issue of ‘service of a default notice’. Such a notice is deemed served if posted to the last known address.

• We can confirm that the original lender notified you of our legal acquisition on 28 May 2009 and we provided you with a letter confirming this on 13 June 2009.
• We deny that we have misled you regarding enforceability of the account, and would refer you to our letter dated 26 February 2015 which addresses your claim (the letter doesn't address the claim, it merely mentions that it is English law and not Scottish, that's it) that the agreement is statute barred. To clarify, the terms and conditions to the agreement state that the agreement was taken out under English law, therefore the Limitations Act (England & Wales) 1980 apply rather than the Prescription and Limitation (Scotland) Act 1973. Please refer to condition number 15g of the terms and conditions which evidences this. We will continue to report the defaulted status of the account for a period of 6 years from the date of the default (30th April 2015 would be 6 years for the English Statute Barring anyway).

Please note that we reject your fee schedule, and any invoices will be disregarded and remain unpaid.

Summary

In view of our findings, we are unable to agree that the account is unenforceable, and that we must cease to process your data.

Further to the above, your complaint has not been upheld. We appreciate that this is not the outcome you would have hoped for, however we trust that we have provided you with sufficient information within our findings to support our decision regarding your complaint.

A copy of our complaints procedure was sent to you as requested within our e-mail dated 03 March 2015.
--------------------

Any advice on this one, I think it's still Statute Barred as I am in Scotland and always have been and I am thinking of trying to sponge this until 30th April 2015 anyway.

Look forward to hearing some words of greatness, thank you.

[FlamingParrot]

Re: Living in Scotland - DCA attempting to recover under Limitations Act (England/Wal

I emailed away some useful information and standard templates and below is the response I was emailed by the Debt Collection Agency:

I wonder what info and templates you emailed them, you obviously told them a lot more than the debt being statute barred!

• We would like to apologise that you have cause to complain. We take complaints very seriously and we hope to bring this matter to a satisfactory resolution.
• We note that we provided you with a copy of the agreement on 26 February 2015 and a copy of the original terms and conditions. The above-mentioned documents were provided to us by the original lender, MBNA (Europe) Bank Ltd. We requested these as evidence that the account was not statute barred, however we have no record of your request for these documents made under the Consumer Credit Act 1974.

Have they actually supplied you with statements showing payments made in the last five years?

• The original agreement provided is an online application and therefore would not be signed in the traditional sense. The Consumer Credit Act 1974 (Electronic Communications) Order 2004 came into effect on 31 December 2004 and changed the Consumer Credit Act 1974 to facilitate the completion on regulated agreements online. Documents can now be transmitted and signed electronically. The process is that after going through an online application process which includes ID and CRA checks, you are presented with the agreement and terms and conditions in full. You would have then clicked to accept these. The agreement and terms and conditions are transmitted in a form which allows you to print or save them. We are happy to rely on the documentation provided, and having viewed them, do not find them to be illegible.

This is true of all online applications submitted on or after January 2005. However, it has no bearing on SBd.

• The account defaulted on 30 April 2009, and the default notice was sent to you by MBNA. This would have been sent to the address held on file by MBNA at that time.

If no payments were made after that, in Scotland that became SBd last year. :thumb:

[FlamingParrot]

Re: Living in Scotland - DCA attempting to recover under Limitations Act (England/Wal

• We can confirm that the original lender notified you of our legal acquisition on 28 May 2009 and we provided you with a letter confirming this on 13 June 2009.
• We deny that we have misled you regarding enforceability of the account, and would refer you to our letter dated 26 February 2015 which addresses your claim (the letter doesn't address the claim, it merely mentions that it is English law and not Scottish, that's it) that the agreement is statute barred. To clarify, the terms and conditions to the agreement state that the agreement was taken out under English law, therefore the Limitations Act (England & Wales) 1980 apply rather than the Prescription and Limitation (Scotland) Act 1973. Please refer to condition number 15g of the terms and conditions which evidences this.

What's condition 15g that says English Law applies?

• We will continue to report the defaulted status of the account for a period of 6 years from the date of the default (30th April 2015 would be 6 years for the English Statute Barring anyway).

Defaults stay on file for 6 years regardless, however, there isn't much time left to worry about this one.

Please note that we reject your fee schedule, and any invoices will be disregarded and remain unpaid.

Did you invoice them and send them a fee schedule? Sounds like the advice of another website, it's not something we recommend or endorse here. :noidea:

In view of our findings, we are unable to agree that the account is unenforceable, and that we must cease to process your data.

The McGuffick case established that creditors can still report to the CRAs when accounts are unenforceable because reporting does not constitute enforcement.

Any advice on this one, I think it's still Statute Barred as I am in Scotland and always have been and I am thinking of trying to sponge this until 30th April 2015 anyway.

Look forward to hearing some words of greatness, thank you.

I'd just have sent them the Scottish version of the SBd letter. If it's SBd and about to drop off the CRAs anyway, I don't see much point in arguing about processing your data or even enforceability for that matter. In Scotland the debt is extinguished after five years without payment or written acknowledgment so it doesn't matter if it was enforceable to start with. :grin:

[mystery1]

Re: Living in Scotland - DCA attempting to recover under Limitations Act (England/Wal

Tell them to go forth and multiply.

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

M1

[afunkymonk]

Re: Living in Scotland - DCA attempting to recover under Limitations Act (England/Wal

Hi FlamingParrot

I emailed them the following:

I refer to your correspondence of 26th February 2015, the contents of which have been noted, and in particular my previous email in which I made a request for evidence of the alleged debt.

To date you have failed to comply with my request and have defaulted in respect of this disputed account. The documentation you provided is a photocopy and not a true and original certified copy of an agreement, this document does not contain authenticity to the original source and could be deemed as a fake document. The Terms and Conditions also provided are a poor photocopy and appear not to be genuine.

As a reminder and no doubt aware, the Consumer Credit Act 1974 Section 77 (6) clearly states:

"If the creditor fails to comply with Subsection (1) (a) He is not entitled, while the default continues, to enforce the agreement"

Therefore this account has become unenforceable at law. Furthermore, you may also consider this email as a statutory notice under Section 10 of the Data Protection Act 1998 to cease processing any data in relation to this alleged account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

Should you refuse to comply you must, within 30 days, provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends. Should you not respond within 30 days I expect that this means you agree to remove all such data and if necessary I will seek enforcement to disclose using CPR 31.16.

You should also be aware that you are not permitted to take any action against me whilst the alleged account remains in dispute. The lack of appropriate requested evidence is a very clear dispute and as such the following applies:

• You may not demand any payment on the account, nor am I obliged to offer any payment to you.
• You may not add further interest or any charges to the account.
• You may not pass the account to a third party.
• You may not register any information in respect of the account with any credit reference agency.
• You may not issue a default notice related to the account.

In the meantime, I will be reporting your company to the Financial Conduct Authority under CONC 7.15 for your obvious attempt to mislead over the legal standing and enforceability of the debt in question, and continuing to make demands on a legally extinguished debt. I may consider involving the Police for an attempt at fraud by deception.

In your correspondence you state that "The agreement for the above account is governed by the law of England and Wales and, therefore, section 5 of the Limitations Act 1980 refers."... The Limitation Act 1980, is a British Act of Parliament applicable only to England and Wales, not Scotland and so, this would fall under the Prescription and Limitation (Scotland) Act 1973, the jurisdiction of Scottish courts and their laws. Under the Prescription and Limitation (Scotland) Act 1973, Part 1: Prescription, Section 6 this debt no longer exists, therefore any payments that were made by a debtor to the alleged debt, should be refunded in full plus interest.

I must advise that any further correspondence received, other than confirmation that this matter is now closed, will be subject to the following fees (any other correspondence received will be deemed as acceptance to the following terms):

£35.00 - Receipt of non-compliant correspondence by mail/post/email;
£ 4.99 - Administration charge for dealing with envelopes by mail/post;
£ 4.99 - Secure cross-shredding of non-compliant correspondence
£55.00 - Responding to further correspondence (charged per hour)

I may also consider contacting the Financial Ombudsman Service at the appropriate point if you do not desist from trying to recover this alleged debt, and insist that you send a copy of your complaints procedure.

I await your reply.
-----------------------------------

15g of the T&C's says: "This agreement will be governed by the law of England and Wales"... that's it.

I knew the default would be on until 30th April 2015, so just need to string it along now regardless, the email states I have until 16th March 2015 to reply to confirm whether this complaint has been resolved satisfactorily, so obviously it hasn't been...

I didn't invoice them, but said I would (as above in my email to them)...
I actually wrote to them in November last year and it has taken them nearly three months to obtain the photocopied agreement, so was stringing them along to make them work for nothing really...

Let me know your thoughts as to whether I reply again on the 16th March requesting more info or whether I should just ignore any further correspondence, but still acknowledge receipt of correspondence from them...thanks.

[afunkymonk]

Re: Living in Scotland - DCA attempting to recover under Limitations Act (England/Wal

Hi mystery1

Thank you for the information and weblink, I will read and digest.

[FlamingParrot]

Re: Living in Scotland - DCA attempting to recover under Limitations Act (England/Wal

Hi FlamingParrot

I emailed them the following:

I wonder where all that came from, I don't think it was from this site. :confused2:

Let me know your thoughts as to whether I reply again on the 16th March requesting more info or whether I should just ignore any further correspondence, but still acknowledge receipt of correspondence from them...thanks.

I wouldn't request more info, if it was me I'd have just sent the following:

Dear Sirs

Statute barred account xxxxx

You have contacted me with regards to the above account. The last payment to this debt was made over 5 years ago and no more acknowledgement or payment has been made since that time.

Unless you can provide evidence of payment or written acknowledgment from me within this period, under Part 1 Section 6 of The Prescription and Limitation (Scotland) Act 1973, without a claim having been made and without acknowledgment of the obligation, as from the expiration of that period, the obligation shall be extinguished and you will not be able to take any court action to recover the debt.

Section 7.15.8 of FCA Consumer Credit Sourcebook states: "A firm must not continue to demand payment from a customer after the customer has stated that he will not be paying the debt because it is statute barred."

If you have evidence that this debt isn’t statute barred then please send it to me within 21 days. Otherwise, please confirm that you won’t pursue me for this debt.

Yours faithfully