Statute barred?

[incubus]

I am currently in a severe financial situation owing approx. £30,000 to a variety of creditors, and have got into this situation due to a combination of a series of redundancies and a long period of illness. I'm currently self-employed and am at the moment barely making enough to make ends meet, let alone pay my creditors. I am looking for a full-time job so hopefully things may improve slightly soon, but I still cannot meet the payments demanded of me.

 

The vast bulk of my debt (approx. £23,000) is to one creditor (a high street bank), resulting from a combination of a loans and credit cards I used to fund myself when I was ill and unable to work back in 2001.

 

I started a debt management plan at the end of 2002, but I was made redundant shortly afterwards and as a result only a couple of payments were made.

 

I recently enquired into the possibility of an IVA, but was informed that I currently have an insufficient disposal monthly income. As I cannot afford the court fee to declare bankruptcy, this leaves me in an awkward situation. However, having done some online research this morning I've come across some points of potential interest.

 

The first question I have is this....

 

As I currently reside in England but was living in Scotland when the loans/credit cards were taken out, and that the creditor is based in Scotland, would this debt be subject to the Prescription and Limitation (Scotland) Act 1973, or the Limitation Act 1980 (England & Wales)? If subject to the former, then would I be correct in thinking that this debt COULD be statute barred, seeing as I have neither made payment nor made written admission of the debt within the last 5 years?

If so, is there I way that I, or somebody on my behalf, could find out this information without it being deemed as written admission of liability?

 

Also, would the Prescription and Limitation (Scotland) Act 1973 be applicable to Career Development Loans, or are they exempt from the 5-year rule?

 

If subject to the latter then obviously this is not an option and I will have to go ahead with a debt management plan for the full amount of my debts. Obviously if this debt were statute barred it would allow me to set up a far more manageable debt management plan!

 

Any information anyone may be able to give me would be greatly appreciated.

 

Many thanks!!

 

 

Incubus

[Matt5791]

I have no understanding of Scottish Law, but in England and Wales there would need to be a period of 6 years from the last payment / acknowledgement of the debt for it to be statute barred.

 

If this is not the case I would suggest trying to do a deal with them and persuade them to write some off - to do this I woudl start with asking them to write the whole lot off - sounds cheeky, but coupled with information about what a dredful situation you are in could help here. Besides if they haven't seen a payment for years. Of course such an 'offer' would be an acknowledgement of the debt so if there are only a few months to wait I would advise writing to them to fend them off and waste time with letters of the "I dont acknowledge or have any knowledge of this debt" variety, periodically. Maybe the time will then pass and you would then be in a stronger position.

 

If, after this point, they took you to court, you could defend on that basis, if you were sure it was time barred - remember if they took action it would be for them to proove it was not time barred, not you to proove it is (he who asserts must prove - the burden is on the claimant) - you could of course adduce evidence to show that it was barred though.

 

Matt.

[incubus]

Thanks for the advice Matt

 

I think the main issue I need to clarify before anything is whether this debt comes under the Scottish or the English law - from what I can tell (from googling the Act), it would be governed by the Scottish act as the creditor is based in Edinburgh. This means that the period of time before it can be considered as statute barred is 5 years and not 6 as in England and Wales. I'm pretty sure the last payment made (through the debt management plan) was around February/March 2003, in which case the debt is possibly statute barred, or at least fast approaching the deadline. I'll try contacting the company I set up the plan with back then and see if I can find out the exact date of the last payment (hopefully they're still going and can give me that info!!)

[Lula]

One of the scottish members will be along later to give you a definitive answer, but I think (but not sure) that it is about your residency and not the head office of the company, but someone will be along to confirm this or give the relevant information.

 

I could be very wrong on this, so please dont take my word as gospel on this

[Ell-enn]

Hi there, are you being chased by the creditors or Debt Collection Agencies? if so, what stage of enforcement are they at - i.e. have they issued county court papers etc?

 

Kind Regards

 

Ell-enn

[incubus]

Hi

 

No, just letters from Debt Collection Agencies, threatening the usual - eg if I don't reply within 7 days they'll take action etc etc, only to find it gets passed on to a different DCA every couple of months!

[haggis_2]

From my understanding of the jurisdiction question, as you are now domiciled in England that it would be the 6yr rule that it would follow. For them to obtain a judgement they would need to do it through the English courts so English law applies.

HTH.

[Matt5791]

Well, I think you could well be past the cut off, or at least very close to it, Scottish or English.

 

The critical thing is not ot acknowledge the debt in anyway - contacting the company who set up the arrangement may not be the best course of action as this could be seen as acknowledging the debt.

 

Try and find out through your own records.

 

Matt

[incubus]

That's kinda what I'm thinking.... The only creditor hassling me worryingly is for a small debt (only £174!), so if need be I'll pay them off to keep them quiet and see how things go.... there's only one year maximum until the 6 year cut-off (if indeed it is subject to the English law), so if I can go another year not acknowledging the debt and without them taking action then all will be good... if they get nasty in the meantime then I'll have to take action in the form of a DMP or IVA, but I guess it's worth waiting and seeing what develops!

 

Dave

[Lula]

Well if they are credit cards or loans the first port of call is to send them a CCA request, found here. (you need letter N) If they are going to collect on a debt then they need to be able to prove that the debt is enforcable, read the link that I gave you and the timeframes involved and send the £1 p/o and see what they send, they are on a tight timescale and only 12+2 days to send the required information. It might help you to read some of the stickies too.

[rory32]

As has been previously touched on which Act applies comes down to where you are domiciled e.g. is your usual home. In this case you are domiciled in England so it would be English Law and English courts that would have jurisdiction under paragraph 3(4) of schedule 8 to the Civil Jurisdiction & Judgments Act 1982 which states:

(4) Proceedings may be brought against a consumer by the other party to the contract only in the courts for the place where the consumer is domiciled or any court having jurisdiction under rule 2(i).

[Lula]

thanks Rory