credit file and statute barred debt

[digitalantichrist]

I just got a look at my credit file by using a free online service and it lists 4 debts defaulted on in my name.

The default dates seem about right, all being around the time, or just after, I lost my job back in 2002. That is, all but one date.

They're all coming up to the time where they would be statute barred in Scotland except for this one. The debts defaulted in May, July and September 2003, and then in May 2004.

I can't understand for the life of me why the default date given for this Tesco loan (May 2004) is so much later than the others, especially when I know for certain that all payments were stopped well before that date. I had no money coming in and no money in my bank account. I know that in or around May 2004 my bank account was frozen and I had to open a new one pretty quickly to get my pay (I had started work again in March 2004 until May 2004), which for two weeks was actually given to me out of the petty cash because of these problems.

Can anyone help. I'm getting letters from capquest telling me that they've finished looking at my current financial situation and they're getting ready to send the details on to their legal team in Scotland with the aim of starting immediate legal proceedings.

However, I'm sure that the debt was defaulted well before the date given and would put it, by September - December 2008, into the realm of statute barred.

Any advice, anyone, anywhere?


PS: I had a look through my debt letters and have found a letter from citizens advice dated August 2003, so I must have been seeking advice before that period and therefore had probably stopped paying my creditors. Also, there's a letter from my bank informing me that there was insufficient funds in my account to pay Tesco (RBS) dated 31 Dec 2003, then a default letter from Tesco dated 10 March 2004. My problem still stands, I had been out of work for over a year and had no income or savings so had stopped repaying debts long before 10 March 2004, is there any way to prove this, or find out when I stopped paying?

[rory32]

The date of statute barring runs from the cause of action (so when you stopped paying) not from the date of the default. The onus is on them to prove that the account is not statute barred. I would therefore send them the following via recorded delivery. As always when dealing with DCA's do not sign the letter.

Dear Sir/Madam

Acc/Ref No 4563210025897412

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 Prescription and Limitation (Scotland) Act 1973 Part 1 Section 6 "If, after the appropriate date, an obligation to which this section applies has subsisted for a continuous period of 5 years:

(a) without any relevant claim having been made in relation to the obligation, and
(b) without the subsistence of the obligation having been relevantly acknowledged,
then as from the expiration of that period the obligation shall be extinguished:"

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 of this alleged debt was made over five years ago. Unless you can provide evidence of payment or written contact from myself in the relevant period under Part 1 Section 6 of The Prescription and Limitation (Scotland) Act 1973 , I would respectfully suggest that you are no longer able to take any court action against myself to recover the alleged amount claimed.

Should you continue to pursue this account without providing this evidence I shall seek an interdict and damages accordingly. A formal complaint will also be made to Trading Standards along with a report to the OFT questioning your fitness to hold a consumer credit license.

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

I look forward to your reply.

Yours faithfully
Mr A N Other

[digitalantichrist]

awesome as ever, Rory, thanks greatly for the advice, I'll be sending the letter off on Monday!

[digitalantichrist]

Hi again (boy, I am a nuisance!).

On June 2nd I sent the letter Rory referenced and got a letter from CapQuest on the 4th June acknowledging receipt of the letter and advising me that the account is on hold for 28 days while they obtain the info requested.

Today, I got a letter from CapQuest dated 30th June stating that CapQuest have requested the "information directly from Tesco Personal Finance, however we are still awaiting a response."

They also state, and I quote "We will be contacting you again within 28 days to advise you of the situation. If Tesco Personal Finance respond to us within that time period, we will contact you immediately to resolve this matter."

I enjoyed the bit at the end where they thanked me for my patience

So, are they abiding by the rules, and what do their responses suggest?

ta muchly.

[rory32]

At the moment they are abiding by the rules as they are investigating the matter and aren't asking for payment. It's just a case of wait and see what they do next at the moment but the burden of proof is entirely on them to prove that the account is not statute barred.