Now living in Scotland - is the debt statute-barred?

[FlySi]

Hello all

 

If the title seems obscure, I'm sorry, but I'll keep this as short as possible!

 

1) My brother (yes, it really is my brother and not a euphemism for me!) was living in the South East in 2003 and took out a Capital One card. Eventually, he fell behind and defaulted on the card.

 

2) In 2005, Buchanan Clark and Wells approached him and arranged monthly repayments of £36 on the account. He made these until October 2006. He believed the debt was settled.

 

3) In 2010, my brother moved to Scotland, where he's been on the electoral roll ever since. In that time, no company representing Capital One has chased him for any debt.

 

4) In February 2012, he sent a SAR to Capital One believing that there may have been PPI on any accounts that he may have held with them. There wasn't. It included letters from Buchanan Clerk and Wells regarding the debt and payments. It also stated that in April 2007 the debt was sold by Capital One to Arrow Global.

 

5) Last week, he received a letter from Rockwell, on behalf of Arrow Global (who took over from Capital One) seeking payment of £119 on the outstanding balance. My brother thought that the account was settled in October 2006.

 

6) Today, he spoke with Rockwell and explained that he had no knowledge of the debt and that if it did exist then it was statute barred. Rockwell told him that the address on the account was in England (2003 when the account opened, 2004 when defaulted, 2005 when with BCW and 2006 when the final payment was made) and that it wasn't statute barred. He explained that a) he's been living in Scotland for the last two and a bit years; b) at no time did Capital One contact him between October 2006 and now; c) at no time has Arrow Global contacted him between October 2006 and now; d) there is no reference to any debt to Capital One, Arrow Global or Rockwell on his credit reports with Experian and Equifax.

 

So, a little advice would be useful here: there has been no effort to contact my brother regarding the debt for more than 5 years since the last payment was made to the account. He no longer lives at the address in England where the account was taken out (and hasn't for some time before moving to Scotland). He now lives in Scotland. Does he fall under the jurisdiction of Scots law and is the debt statute barred?

 

I believe it's statute-barred and so does he. To support our argument, he recently received a letter from CapQuest chasing a debt with M&S Money from 2003 (the date of the last payment). He knew nothing about this and believes his ex may have used the card after they separated. CapQuest bought the debt in January 2006. When he wrote to them, he explained that he knew nothing of it and stated that it was statute-barred. They agreed and closed the file/account.

[sequenci]

Hello there.

 

It's Scots law, 5 years applies, the debt is stat barred based upon what you'e written.

 

Hope this helps!

[FlySi]

@squenci: Thanks for confirming. Strikes me that nobody at any of the businesses involved could be bothered to do a simple address or credit check and write a letter. They waited until my brother go in touch and thought they'd have a go.

 

I've already drafted a letter to Rockwell stating that the debt is statute-barred, etc. but doubt that they will listen. Any advice on how to go about telling them to sod off if they persist?

[sequenci]

Hello there.

 

It's Scots law, 5 years applies, the debt is stat barred based upon what you'e written.

 

Hope this helps!

[BRIGADIER2JCS]

There is I belive a ''residence'' qualification in

this situation 3 or 6 months if is a permanent

move.

[FlySi]

@Brigadier2JCS - Thanks for the advice. Am looking around for info. to clarify the situation. The minimum requirement for residence doesn't seem to be an issue.

 

@sequenci - You re-posted your earlier comment. I was hoping that you could offer some advice on how to approach the issue if Rockwell deny it's statute barred and persist in chasing my brother.

[BRIGADIER2JCS]

I no payment or acknowledgment

has been made in 5 years the debt

is not only statute barred but is completely

extinguished and I'm sure your brother meets

the residency requirements.

[BRIGADIER2JCS]

He could send the folowing to Rockwell.

To The Compliance Manager,

Rockwell

 

xxxxxxx

 

Ref: xxxxxxx

 

Dear Sir or Madam,

I write with reference to a debt you allege is owed by me for xxxxxx,

please take note I so not acknowledge any debt to you or any company

you may claim to represent.

Your claim to be able to pursue such alleged debt has no merit for

the following reason I am resident in Scotland and in simple terms

a debt becomes statute barred under Scottish Legislation after 5 years

with np payment or acknowledgment having in that period and I'm

sure you are aware the debt is not only Statute Barred but is totally

extinguished under Scottish Law.

Therefore given the FACTS stated above I will not now or in the future

be making any payment or offer of payment.

I therefore now consider the matter closed and please regard

this letter as my final response.

I will not hesitate to complain to the regulatory authorities should

make any further contact.

 

Add amend as needed.

[dean26966]

Here is something i have found

 

Statute Barred Debt - Scotland

In Scotland the law relating to the time period that a debt can no longer be pursued in the courts is different from the rest of the UK. Here is a brief guide on how you use the law to deal with creditors chasing you for old debts.

What is a statute barred debt?

Statute barred debts are debts which cannot be legally enforced. The Prescription and Limitation (Scotland) Act 1973, Section 6 limits the timescale which a creditor can take legal action to recover their money to 5 years, provided the following conditions are met:-

• There are no outstanding decrees against you, AND

• No payments have been made towards the debt for the last 5 years, AND

• No written communications with the creditors have taken place acknowledging the debt.

Please not if the debt is in joint names then the above also applies to the joint party.

If these conditions are met then you cannot be taken to court by the creditors. This does not clear the debt so it may appear on your credit file as outstanding.

How to handle debt collectors and creditors

You now believe your debt to be statute barred so what is the next step? How can you stop the debt collectors from ringing you at all hours? How can you stop their letters? This 3 stage action plan should stop them.

1. Find out if there are any decrees made against you. To do this you should contact the three credit reference agencies and check your credit file.

2. Obtain any information the company has on you through the Data Protection Act 1988 using this template letter. When writing to any finance company about a debt which you suspect is time barred never sign the letter.

3. Use this sample letter to write to the creditor stating that under Section 6 of the Prescription and Limitation (Scotland) Act 1973 applies to the debt and it is now time barred.

Note: If the above has not worked and you are still receiving calls from debt collectors or finance companies looking for money then contact your local council's trading standards department and they'll help.

Important

Keep copies of all letters and send them by recorded delivery.

Why do I say that you should never sign any letters? Well, some people think that there are a few unscrupulous finance and debt collection companies that have in the past used the signature attached to letters to forged letters from debtors acknowledging the debt! I don't have any proof of this but I am just let you know so you can make up your own mind.

When writing to any debt collection company, make sure you head the letter up, "I do not acknowledge any debt to you or any other company or organisation that you claim to be representing."