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Newborn

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Newborn last won the day on June 16 2013

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  1. I don't know whether you've seen this but it does give a break down of the legal pitfalls involved from the viewpoint of the lender and LPA receiver: http://www.jgrweb.com/downloads/buy_to_let_property_law.pdf
  2. Sounds to me like the DCAs are getting desperate and are hoping that they can trawl about to find a kindly relative to pay this off for you! They can also then try the old statute barred clock stop thing because a payment was made and hope to rely on peoples' ignorance of the law.
  3. It doesn't ring true to me either. There may be a lot more to the story in the background over other debts/mortgages that the landlord has. But now that you have that letter your mother can argue that she is a lawful tenant and that the lender must stick to the tenancy agreement because, if their agent (the debt collector) was aware that the property was let out, then they are too. One thing to check, was the deposit put into a properly regulated tenant's deposit scheme?
  4. I tend to disagree Dodgeball. A CCA in Scotland is subject to Scottish mandatory law (those that cannot be signed away) like the prescriptions act 1973 - so it may not matter where they move afterwards. Whereas in England it would be subject to the limitations act 1980 in the same way. Please do not confuse 'jurisdiction' (the right to hear a case) with applicable law (what law applies to a case). They are not the same thing. And the law covering conflicts and differences in jurisdiction and applicable law between Germany and France is the same as those between England and Scotland etc. As I see it there is no simple rule (something we would like to see) rather it is on a case by case basis depending on the date of the contract, the domicility of the parties as well as the question of business to business or business to consumer.
  5. But Ganymede, where the debtor who signed a contract in England but defaulted and now lives in Scotland gets taken to court after five years of no acknowledgement/payment, it is against Scottish public policy if they are a consumer to say that the debt still exists. So they are protected? Rameses, as I understand it business to business contracts are viewed more strictly by the courts because the parties are 'equals' whereas the consumer is always viewed as the underdog so given more protection. In fact even where a consumer contract specifies that it is under 'English law' that may not always apply. See here: http://www.govanlc.com/jurisdiction.htm This applicable law versus jurisdiction has further implications - if a contract is governed by scots law but heard in an English court does the Scots more stringent proof of the CCA docs apply?
  6. I took this comment: From here: http://www.out-law.com/page-479 And this one: From here: http://www.kentlaw.edu/cyberlaw/docs/rfc/euview.html
  7. Hi Ganymede, the only point I would make with your reply is that, an EU consumer MUST be sued in the country in which they are domiciled at the time. So in this case the consumer would have to be sued in the French courts, but using which law? And would the French or English SOL be the one to use? But the route you suggest could I think be used against a business debtor.
  8. It seems to me that there are several factors in the example you put: Where is the loan taker domiciled? Where is the lender domiciled? What applicable law is stated on the contract? Is the loan taker a consumer or a business borrower? I may be wrong but as I see it a consumer would probably be protected by the Scots 1973 Act, but a business borrower could legitimately be taken to court in England (no consumer protection) and the English SOL would apply.
  9. Hi Dodgeball, I do agree that as long as the Op in the original thread was a 'consumer' as opposed to a business customer they would probably be covered by the 1973 Scottish Act. But with the complexities as pointed out by rameses we need to be a little careful. For my part I lived in Scotland then moved to England where I defaulted on a couple of consumer credit cards. I have not paid/acknowledged for 5 and a half years. But just looking for a simple answer to 'am I covered by Scots or English law' threw up more questions than answers - especially as the laughable T&Cs that the DCA and OC sent to me said that the alleged and unreadable agreement I signed when domiciled in Scotland was governed by 'English law'. As a law graduate I found it hard to wade through and understand all the conflicting laws, so i was worried that others might end up being shafted because they put the wrong argument forward.
  10. Hi rameses, that was sort of what I was trying to do. But what concerned me was that it seems that business to business debt is treated differently to business to consumer debt where jurisdiction and applicable law are concerned. Also there are differing laws depending on the date of the contract as well as what was actually written on the contract agreement as well as where each party was domiciled when the contract was formed. This would mean that the debtor would have to be extremely careful when just saying this is statute barred. As to my reference to 'non contractual tort', all I was pointing out was that when looking at breach of contract what is important is what took place when the contract was formed. Where the cause of action took place seems to have no bearing on jurisdiction or applicable law for a contract only for a wrong such as injury.
  11. These took me a long time to dig out and I was not aware that any of the following sites that I posted were mason/FOTL sites: Cripps Harries Hall: http://crippslink.com/index.php?option=com_cont ent&view=article&catid=26 %3Acdr-publications&id=805%3Arom e-1-the-law-applicable-to-contracts&Itemid=537 Europoean Commission: http://ec.europa.eu/civiljustice/applicable_law/applicable_law_sco_en.htm European Commission: http://ec.europa.eu/civiljustice/app...law_eng_en.htm Pinsent Masons: http://www.out-law.com/page-479 HM Revenue and Customs: http://www.hmrc.gov.uk/manuals/ihtmanual/ihtm28384.htm
  12. Thanks dx. I just think this subject should be looked at in more detail because at some stage someone my think a debt is statute barred when it is not.
  13. I was only trying to discuss around this issue and point out what I've read on legal sites.
  14. Hi, sounds like you're going through the mill at present, especially as you are on medication. It looks like they've got a judgment but as you have nothing to take they are trying to scare you into paying. Remember that if the court said you can't afford to pay then no-one else can force you. In fact the court might be interested in this person's activities. Also there are time limits on some things. Can you help us by putting some rough dates to when you got ill, defaulted and the CCJ etc?
  15. Where you default has no bearing, a cause of action only applies to non-contractual tort. It all depends on the applicable law at the time the contract was formed - that is the bedrock of contract law after all. Enforcement of the sums owed can only be derived from the contract itself - otherwise trying to prove a debt is not enforceable because the contract was faulty due to missing terms would never work. If you live in Edinburgh, take out a loan then default before moving to Swansea what then? As a consumer you have to be sued in the country you are domiciled in. Which statute of limitations applies and why? Bearing in mind that when forming the contract you are not allowed to opt out of the Scots prescriptions Act. And what if you moved to Wales before defaulting? In both cases above the contract was signed in the same place. So if consumers have to be sued in the place they are officially domiciled what would happen?
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