Help please Small Claims Summons (Marlin Europe) vs Me £2252 overdraft. ***Marlin close file and Court Case Dismissed***

[jadis]

I have recieved a court summons to Inverness Sheriff Court in Scotland.

 

The pursuer is Marlin Europe. Return Date is 13/3/2013 hearing 27/3/2013

 

Statement of Claim states " On or about 13th July 1990 Clydesdale Bank plc suppied the Defender with an overdraft facility in respect of account number 12981775. The amount overdrawn was repayable on demand.

 

I have several letters over the years relating to a debt of £2252 to Clydesdale Bank and then to Marlin.

 

I have to the best of my knowledge never aknowledged the debt or payed anything towards it since the joint account this debt was on was withdrawn by the Clydesdale Bank on 23/5/2007 as a result of my wife's sequestration (the other party on the joint account).

 

Interestingly and key I think is the fact that I did not marry my wife until 1999 was not on this account as a joint signatory until around then. So I definately did not take out a overdraft with the Clydsdale in 1990. I banked with TSB until I married.

 

I think I have a defence here a) that I did not take overdraft being pursued in 1990. I didnt bank with Clydesdale at this time.

 

b) The CAB suggested that as I have not acknowledged or payed anything to this debt since 23/5/2007 this debt under Scottish law is Time Barred. But that's not quite 6 years.. ??

 

What are my chances of winning? . How best do I present this evidence to court, what evidence do I need to gather and how do I defend myself ?. If I lose how much more than £2250 is this going to cost me.?

 

Any advice gratefully received.

 

Thankyou.

Edited January 30, 2013 by jadis

[maroondevo52]

 

b) The CAB suggested that as I have not acknowledged or payed anything to this debt since 23/5/2007 this debt under Scottish law is Time Barred. But that's not quite 6 years.. ??

 

 

Hello and Welcome jadis,

 

Under Scottish law, if a lender allows time to pass without receiving any payment for a period of 5 years any action for recovery may become barred under the Prescription and Limitation (Scotland) Act 1973.

After a debt has become statute barred, generally no further attempts to make recovery can legally take place. The debt no longer exists as a legal right and is deemed to have been abandoned or satisfied.

[jadis]

Hello and Welcome jadis,

 

Under Scottish law, if a lender allows time to pass without receiving any payment for a period of 5 years any action for recovery may become barred under the Prescription and Limitation (Scotland) Act 1973.

After a debt has become statute barred, generally no further attempts to make recovery can legally take place. The debt no longer exists as a legal right and is deemed to have been abandoned or satisfied.

 

Thanks, I'm confused some places I'm reading say 6 years some say 5. Is it definately 5 in Scotland ?

 

Thanks

[maroondevo52]

It's 6 years in England and Wales, 5 in Scotland, comes under the Prescription and Limitation (Scotland) Act 1973.

 

 

http://www.legislation.gov.uk/ukpga/1973/52/section/6

[Crocdoc]

This scenario pops it's head up periodically, Marlin Europe limited is based in West Sussex and the lilkeliehood is that the claim has been drafted by a member of staff with little or no knowledge of the position in Scotland. . In my view, I think you should get in now with the following letter by recorderd delivery as it may stop the hearing going ahead.

 

 

Dear Sir/Madam

 

 

(Your Ref)

 

 

I refer to your correspondence dated xxxxxx, for ease of reference a copy is attached.

 

In response I would ask you to consider the following points:

 

1) This alleged 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

 

I look forward to your written response.

 

 

Yours faithfully

Edited January 31, 2013 by Crocdoc

[IdaInFife]

and remember to submit that you are defending the action

[Crocdoc]

and remember to submit that you are defending the action

Very good point, sorry I missed that bit.

[jadis]

Took above advice. Sent letters to Marlin and Scottish solicitor acting for them. Got a letter today from their solicitor saying they have been instucted by Marlin to close my file and they will be having the court action against me dismissed.

 

Thankyou all so much.

 

Graham

 

( I will be making a donation to the site on payday !).

[renegadeimp]

Make sure you check with the courts. I wouldnt put it past them to keep the claim active so they get judgement by default.

[Crocdoc]

Took above advice. Sent letters to Marlin and Scottish solicitor acting for them. Got a letter today from their solicitor saying they have been instucted by Marlin to close my file and they will be having the court action against me dismissed.

 

Thankyou all so much.

 

Graham

 

( I will be making a donation to the site on payday !).

 

Game Set and Match

[maroondevo52]

 

 

 

Took above advice. Sent letters to Marlin and Scottish solicitor acting for them. Got a letter today from their solicitor saying they have been instucted by Marlin to close my file and they will be having the court action against me dismissed.

 

Thankyou all so much.

 

Graham

 

( I will be making a donation to the site on payday !).