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oli1

taken to court with time barred debt?

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We have recieved court summons for a debt that was owed to citi bank in 2003, (we stopped paying this debt oct 2004 and have never acknowledged debt since) this debt was then bought by capquest on 24th march 2005 and they have instructed Yuill & kyle to pursue this debt through court. I have already filed form 07 with court and have now recieved intimation of options hearing, can anyone help or give me info on lodging my defence ( debt has become prescribed by time) or if anyone has been through this could you let me know how you got on. I have spoken to a solicitor today who did not seem to have much knowledge of the law of prescription, (just told us this could cost a lot of money if we lost this case)

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You say that you have not acknowledged the debt since OCT 2004. If that is correct it would become Statute Barred in Scotland in October 2009.

 

However, if you are in England then the six year rule applies and therefore SB would not apply until October 2010.

 

Please confirm Jurisdiction.

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Sorry, I picked this up from the home page, it is now clear that you are in Scotland.

First of all you must be very careful what you put in print as this can amount to acknowledgement.

Time limits in Scotland

 

In Scotland, there is a time limit of five years or 20 years for taking legal action to claim money owed. The time limit depends on the type of debt owed. Some of the rules are complicated, for example, if there are arrears of payments of mortgage interest the lender has five years to take action, but where there are arrears of payments on the principal sum (capital) owed under a mortgage, the time limit is 20 years.

 

What type of debt are they trying to recover?

 

Assuming that this debt falls into the 5 year limitation, you could send this to the pursuing parties.

 

Dear Sir/Madam

 

 

I refer to your correspondence dated the

 

I would ask you to consider the following points:

 

1. This debt has now prescribed under the Prescription and Limitation (Scotland) Act 1973 as the debt has subsisted for a continuous period of five years-

 

(a) Without any relevant claim having been made in relation to the obligation,

 

A relevant claim in a consumer credit contract would normally be the raising of a court action-

 

And

 

(b) Without subsistence of the obligation having being relevantly acknowledged,

Then as from the expiration of that period the obligation shall be extinguished

 

A relevant acknowledgement in a consumer credit contract would normally be an unequivocal written admission by the debtor that the debt still exists or by making payments to the debt

 

We would further advise you that in Scotland unlike England and Wales the debt is totally extinguished and ceases to exist.

 

Unless you have contrary and irrefutable proof to the above we would ask that you refrain from making any further claims.

 

You will no doubt be aware that the Office of Fair Trading (OFT) has issued guidelines as to practices which it considers to be unfair. We feel that your continued pursuit of this debt when it no longer exists under the above legislation is a contravention of these guidelines and throws it to question your fitness to hold a consumer credit licence.

 

It will therefore be our intention, if your activity persists; to report the matter to the OFT Consumer Credit Enforcement Team

 

Yours faithfully

 

It may be that the pursuer is pressing ahead with this action in the hope that you don't defend.

 

You may wish to exclude the final paragraph, however the remainder could be used in defence.

Edited by Crocdoc
Add letter.

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Hi oli1 and welcome to cag,

 

I'll ask for some help to fill in the defense

 

ida x


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We have recieved court summons for a debt that was owed to citi bank in 2003, (we stopped paying this debt oct 2004 and have never acknowledged debt since) this debt was then bought by capquest on 24th march 2005 and they have instructed Yuill & kyle to pursue this debt through court. I have already filed form 07 with court and have now recieved intimation of options hearing, can anyone help or give me info on lodging my defence ( debt has become prescribed by time) or if anyone has been through this could you let me know how you got on. I have spoken to a solicitor today who did not seem to have much knowledge of the law of prescription, (just told us this could cost a lot of money if we lost this case)

 

Hi Oli/Ida

 

This is an Ordinary Cause action, so yes the costs could be high if it goes to a legal debate or Proof/Proof Before Action.

 

Crocdoc has made some good suggestions which make sense BUT in order to help further could you please confirm the following.

 

1. What type of debt this is: credit card, loan, secured/unsecured?

2. What are your dates for submitting a defence, final adjustments to the Record and Options hearing?

3. What correspondance you have had with the original creditor/DCA and what payments have been made.

4. Have you an agreement?

5. Was a default notice served?

6. Has a termination notice been served?

7. Have you undertake an SAR on the original creditor?

8. Can you post up the exact details of their writ?

 

Please let us know any other relevant information that will help draft a defence. I have won two Ordinary Cause actions, both for credit cards and one small claims, all settled prior to legal debate.

 

Regards

 

Monty

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thanks Monty

 

Ida x


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Sorry for not gettin back sooner but had a few days away to see family.

I have today recieved an application by motion from Yuill & Kyle, to discharge the case with no expenses due by either party!! They have finally realised that this case was prescribed by time and they were not going to win. Thankyou both for replyin to my question.:)

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glad it's sorted

 

ida x


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