Help with 1st Credit please

[rory32]

The awarding of expenses won't effect the amount that you are paying, so try to calm down. It will just mean that you pay off a larger sum. The amount that you pay each month has already been agreed.

[rory32]

The awarding of expenses won't effect the amount that you are paying, so try to calm down. It will just mean that you pay off a larger sum. The amount that you pay each month has already been agreed.

[Dipply75]

Hi Bonny, did I miss something or did your solicitor not agree a payment arrangement with them and stated your intention to defend anyway when you got that citation....but you mention a decree and expenses. I take it they still didn't cancel the hearing, went to court and got a decree by default anyway?

 

Am i just being blonde?

[rory32]

Dipply the citation would have been an initial writ which is required to be served when an ordinary cause action is taken (this was not a statutory demand).

 

If the defender admits the claim against them but wishes time to pay and the pursuer agrees to this then a decree is granted (usually in absence) against the defender. By reaching an agreement to repay the debt this admits liability.

 

In an ordinary cause action the defender in this situation is fully liable for the pursuers costs (providing that they are reasonable and can be justified). The sheriff will determine what costs the pursuer will be awarded under the ordinary cause rules. These are then added to the debt along with any interest rate that is set e.g. the statutory rate of 8%.

 

This does not effect the time order in that the level of repayments have already been agreed by both parties. The awarding of expenses only effects the overall amount that needs to be paid by the time order.

[Dipply75]

Ah, blonde indeed, thankyou Rory, I understand now.

 

Hey bonny08, hope you feel a bit better now. I panicked for you for a minute there! let us know how you get on.

 

Rory, in an ordinary cause action where the defender has agreed payments and therefore admitted liability....if it was discovered the debt WAS statued barred and the pursuer was notified of this beforehand but still pursued the debt, could anything be done? Is the decree the final word on the matter so to speak.

[rory32]

Rory, in an ordinary cause action where the defender has agreed payments and therefore admitted liability....if it was discovered the debt WAS statued barred and the pursuer was notified of this beforehand but still pursued the debt, could anything be done?

It's a difficult situation. You would have to ask for the decree to be recalled on the basis that it was statute barred. The sheriff may not agree as the debt has been acknowledged (albeit outside the period of negative prescription). In such an instance an appeal would have to be made to the Sheriff Principal for the decree to be recalled.

[Bonny08]

I do apologise for ranting last night I was just petrified that this was starting all over again

 

Anyway I spoke with wonders of Yuill and Kyle with regards to this and she said altho VERY vague that I should attend the hearing as they are wanting there expenses etc etc..........Im really not sure if I should attend this or not.........any thoughts????? I feel very iliterate to be honest with you as I have no idea at all how to deal with these types of people or the situation in a whole........I understand Rory know what u where meanin I just took it that I would have to pay the £1,147.00 straight away and there is no way on earth I have that sort of money.....The fustrating thing regarding all of this is that Y&K have never once mentioned this to me when I have been making my monthly agreeed payments

[Bonny08]

btw solicitor has advised I go to court on 19th

[Bonny08]

Out of curiosity do think that the Court could instruct that I pay £1,147.00 straight away of do u think they will give me time to pay and it will be including in my monthly instalment - reason being spoke with solicitor justthere who advised that they may no add this expense to my overall balance?

[sutherland]

In Scotland we have a slightly different legal approach to the statute barring of debts. Rather than have a limitation period where actions can be brought we have negative prescription (negative prescription being the removal of rights to bring an action). The written offer of payment is acknowledgement of the obligation (the debt) even if it was marked without prejudice and could be used in court.

 

Oh help! So the general advice on here about making F&F offers etc does not apply in Scotland? Is there a way of making F&F offers in Scotland that are without prejudice? Does my statement in my WITHOUT PREJUDICE letters that 'This offer is made without admission of liability' etc. count for nothing?

 

Thanks.

[rory32]

Out of curiosity do think that the Court could instruct that I pay £1,147.00 straight away of do u think they will give me time to pay and it will be including in my monthly instalment - reason being spoke with solicitor justthere who advised that they may no add this expense to my overall balance?

It's not set in stone that they will, which is why it's important that you attend the hearing so that you can ask the sheriff that they are.

[rory32]

Oh help! So the general advice on here about making F&F offers etc does not apply in Scotland?

The ability to effectively use without prejudice is the same in Scotland as in the rest of the UK in that for you to effectively use without prejudice it must fulfill certain criteria as must an acknowledgement of the debt.

 

Does my statement in my WITHOUT PREJUDICE letters that 'This offer is made without admission of liability' etc. count for nothing?

No quite the opposite actually.

 

The written offer of payment is acknowledgement of the obligation (the debt) even if it was marked without prejudice and could be used in court.

Perhaps this was a little misleading. Let me try and explain in more detail what would amount to an acknowledgement or not of the debt.

 

The basic requirements of an acknowledgment are that it must be in writing and signed by the debtor or his agent. In this context ‘signed’ means in manuscript and not typed (see Firstpost Homes Limited v Johnson [1995] 1 WLR 1567).

 

The vital characteristic of an acknowledgement is that it must amount to an unequivocal admission that the debt remains due: Surrendra Overseas Ltd v Government of Sri Lanka [1977] 1 WLR 565. The court must construe the alleged acknowledgment as a whole – the creditor will not be allowed to pick and choose those parts of a document which suits it, while ignoring others.

 

An acknowledgment need not quantify the debt due, it is sufficient that the amount owed may be ascertained by extrinsic evidence: Dungate v Dungate [1965] 1 WLR 1477. However, a document which admits all the facts necessary to give rise to liability, but in which the debtor denies that he is in fact liable, will not amount to an effective acknowledgement.

 

To be effective, the denial must amount to a denial of liability for all times and all purposes: Bank of Baroda v Mahomed [1999] Lloyds Rep Bank 14.

 

However a statement by the debtor that he is unable to pay the debt “at the moment” will constitute an acknowledgement because it amounts to an admission that the liability exists.

[sutherland]

Thanks Rory, that's a very helpful response.

[Bonny08]

Thank you Rory for ur valuable advise...It looks like Im going to court myself as there is no way I can afford more lawyers fees....out of curiosity do u no what will be expected of me there and if I will have to speak.......I have never been involved in anything like this before and Im trying to gian the nerve to handle it okies......

[Bonny08]

Hi

 

I have court which Iam attending Wednesday regarding the Pursers Expenses can anyone give me any hinters of what to expect as I have never been in this situation before and am going myself as I cannot afford anymore solictitors fees......Any pointers would be most helpful or tips to adivse what will be excpected asked of me and if I should take anIncome and expenditure form with me. Thanks

[sutherland]

How did it go Bonny? Hope you survived the ordeal.

[Bonny08]

Hey

 

Well its not the nicest of places and I dont wanna be going back in a hurry saying that anythings possible, Well It wasnt was I expected it to be It was the Auditor of Court I had to go to and that was just myself and the auditor and he was just talking said its very unusual for the defender to attened he was checking there charges and said it was all fine bar £20 which he will ammend........am not sure yet if Yuill and Kyle will ask me to pay this amount upfront .....However there is NO way I can as Im already paying them £150 per month for the aggrement........have to just wait and see what the post brings reallyy...........Im hoping they just add it to the debt the auditor said they should but Im hoping and expecting nothing.......I feel there has been a whole injustice with this however I havent got the bottle to keep raking over and fighting against them al the time.

 

Thanks tho

[Bonny08]

Hello...

 

 

Long time no speak and all that jazz...........Well update, Im still currently payin Yuill and Kyle £150 per month with regards to above long winded debt with 1st credit.......ANYWAY everything with that is fine however came home last nite to a Schedule of Inhibition from a Stirling Park Revenue Managemnt Company who delivered it personally .....How special..Anywayz am I right in thinkin that the warrant has been granted and therefore I cannot sell my property without paying the debt of first?...It basically says that but the words "warrant" and Sheriff etc fear me.........Also I was wanting advice even tho its settled I pay back this £150 per month etc etc and they now have the decree etc.......Is there any point in me sending a SAR I req it before and never recvd more that likely because I didnt enclose the £10....Ive been badly advised about the whole thing and the more I learn the more of a bad TASTE this has in my mouth as I solely believe this Debt was Statue barred and because I was ignornant to the whole thing I panicked and I find myself in this situation today.......as u will see I seen a solicitior who adv me not to contest as I own my own home and it was tooo risky blah bla BLAH.........Anywayz could u advise me of this schedule of inhibition and if its worth sendin a SAR and if so who to and this stage.........either 1st Cretons or Yuill and K?

 

Much Obliged

[ODC]

Hi I see Rory was helping you earlier and he is an Expert in Scottish Law. He will probably be around later to advise. IMHO though if the debt actually was Statute Barred then you would have good ground the get rid of this whole thing. Once a debt becomes Statute barred it cannot (in the rest of the UK) become Unstatute Barred. Have you tried the Govan Law centre

[sutherland]

To use GLC, Bonny will need to be in their postcode area. Those who do not have postcodes that match up with a deprived area are pretty much stuffed when it comes to getting help from GLC type organisations in Scotland.

[Bonny08]

Yes Rory was helping me and he was most helpful..........Its all sorted now really its just this new thing regarding the inhibtion thingy thats thrown me and I feel as if im badly misjudged.......Now that they have the decreee and this thing against my property Im not sure if thats it final and I cannot go back........I argued the pioint with them before it got to court but was never given proof of such that I made any payments .......They wouldnt give me it.........so they accepted my offer of monthly instalments and then all the charges I have hd to pay ie solicitors fees and then there fee of taking me to court...........Im not sure If I have a case anymore anyways

 

Ive tried govan law centre and Im not eligble to use them..........

[Dipply75]

Hi Bonny08,was really hoping you had good news when I seen your link, sorry.

 

I remember when you were fighting this and we were all convinced this was statute barred...if memory serves you did send them a letter stating this and demanding proof to the contrary but they have never given anything except the apparent date of a single on off mysterious payment just within the time limit?

 

I think you should consider making a complaint against the solicitor who advised you...he advised they did not have to give proof and advised you basically against arguing with them just because you had a property. After he told you that I am not surprised it scared you into just agreeing payments. I would want my money back from him!

 

To me, the fact you decalred it statute barred in the first place means you should be allowed to get this opened up again.

 

Hoow about a complaint to the FOS wile you are at it, any chance you can get legal aid?

[Bonny08]

HI

 

Sorry should have said....With them givng me this inhibiton does that mean they can still ask for the sale of my house???.....I havent defaulted on any payments but Im worried that they might pull this out the bag next.....wat im asking if someone can explain wat schedule of inhibition means in full for me cos Im in a bought house with mortgage???...

 

This whole sorry mess is never ending I would be most grateful if someone could reply fairly quick for me........Id appreciate very much

[Bonny08]

No I cant get legal aid am just missing out on that aswell ....Im paying it back now £150 per month to Y&K.....Needs be and that Im jsut a bit perplexed now with regards to this Schedule of Inhibition.......Wat does this mean for me...That eventually they will get my home???....Its never ending and my nerves are shatterd.......I wish i didnt own my property I was thinkin of getting it put it in my dads name but unsure if I can do this now after getting this decreee thingy from the sheriff........I hope someone can explain in full cos I cant afford anymroe solicitiors fees.........Im like a rabit caught in a trap .......Sorry for going on

[rory32]

Okay to answer your questions regarding the inhibition and hopefully put your mind at ease, an inhibition gives the creditor the power to prevent a debtor from either transfering ownership of (so no you can't put it in your dad's name) or granting a security over (this means you can't remortgage) any of the debtors heritable property. Heritable property in this case is your home.

 

An inhibition does NOT transfer any property to the creditor nor can they force the sale of the property through an inhibition. It does mean though that you can not sell (unless missives for sale were signed prior to the inhibition being granted) or raise any funds on the property until the inhibition is paid in full.

 

An inhibition only effects the future voluntary acts of the debtor, so your mortage is not effected by the inhibition.

 

As long as you keep up the payments of £150 per month your home is not at risk as the creditor is not allowed to take further action against you. The time order effectively freezes the diligence process.

 

If for whatever reason you at some future date find that you can not keep up these payments you must apply to the court for a variation of the time to pay order. The creditor can only take further action against you if you fall behind by 3 payments on the order.