Prescription of unsecured debt in Scotland

[ew23]

I have an outstanding RBS credit card debt which has been assigned on to Arrow Global. My question is if the debt has prescribed as nothing had been heard of it for ages, until a recent letter from a CCA in Scotland.

 

The last payment made by me was in Dec 2005. The debt was assigned to Arrow Global in Feb 2011. There had been no acknowledgement by me of the debt for over 5 years, so normally the debt would prescribe.

 

However in Dec 2008 I wrote to RBS requiring penalty credit card charges on that account to be refunded, which were credited to the account. Also in Sept 2008 I made a s77-78 request to the then CCA acting for RBS in standard template form. Both letters quoted the account number, but not the amount outstanding.

 

Do you consider that these letters constitute "the subsistence of the obligation having been relevantly acknowledged" in terms of s.6 of the Prescription and Limitation (Scotland) Act 1973 i.e. that the debt will not prescribe until Dec 2013?

 

Thanks for reading.

[maroondevo52]

Hi,

 

The CCA request would not count as acknowledgement of any debt, £1 payment was not a 'payment in respect of a debt' it was the statutory payment for your information request under the Consumer Credit Act. Therefore it cannot be considered a payment in relation to the statute of limitations.

 

Your charges reclaim and refund would be classed as acknowledgement.

[ew23]

Thanks for responding. That's what I feared.

 

Any authority, precedent or reasoned basis for this, or is it based on your best interpretation? Not meaning to be rude - just keen to know the rationale for your conclusion re the charges reclaim, before I go basing my whole approach on that.

 

Thanks for any further thoughts you can give it.

[maroondevo52]

I can't see how you can reclaim charges on an account you claim not to acknowledge, maybe I'm missing something but that's the way I see it.

[IdaInFife]

I can't see how you can reclaim charges on an account you claim not to acknowledge, maybe I'm missing something but that's the way I see it.

 

And me and the courts as well

[ew23]

IdaInFife

 

Thanks for responding.

 

"and the courts as well" Are you aware of any court cases in point on this that I could reference?

 

maroondevo52

 

It is not that I claim that I have not acknowledged the debt, the fact is that other than the two instances I mentioned where I referenced the account in question, I have not. A claim for refunding of charges could have been made against an account on which there was no balance or debt.

 

I don't mean to be argumentative, but I need to be fairly sure of my ground here, if my approach is to be to approach the CCA in some shape or form, as opposed to doing nothing (unless a summons is served on me) and wait it out until Dec 2013 when the debt will definitely prescribe. If I do approach the CCA, then the prescription clock will be reset to zero.

[blueda]

You can write to the DCA asking for a true Copy of the Consumer Credit agreement ( CCA ) as that is not acnowledging the debt.

[Crocdoc]

IdaInFife

 

Thanks for responding.

 

"and the courts as well" Are you aware of any court cases in point on this that I could reference?

 

maroondevo52

 

It is not that I claim that I have not acknowledged the debt, the fact is that other than the two instances I mentioned where I referenced the account in question, I have not. A claim for refunding of charges could have been made against an account on which there was no balance or debt.

 

I don't mean to be argumentative, but I need to be fairly sure of my ground here, if my approach is to be to approach the CCA in some shape or form, as opposed to doing nothing (unless a summons is served on me) and wait it out until Dec 2013 when the debt will definitely prescribe. If I do approach the CCA, then the prescription clock will be reset to zero.

 

I totally agree with Ida and others on this one, to reclaim charges is to acknowledge that the account exists.

[citizenB]

I too agree, that once you had requested a refund of charges, which were subsequently returned to the account - the debt was acknowledged and any statute barred timing was reset.

[ew23]

Is there not a difference between the debt on the account and the account itself? The charges refunded relate to a period prior to the existing debt being run up i.e. the account was in arrears and charges applied prior to March 2005 at which point the then outstanding amount (including charges levied) was cleared. A further debt was then run up on the account, which is the debt I am hoping has prescribed. The refund of charges was applied to reduce that outstanding amount.

 

Surely acknowledging the existence of an account does not mean that you accept that whatever the lender/credit card company say is the sum outstanding on the account is in fact the true incontestable amount?

 

Perhaps I am splitting hairs, but I cannot find any legal authority either way.

[Crocdoc]

In a word no, the mere fact that it is the same account and the refunded charges were paid into the account in 2008 (following the reclaiming process) the proceeds will be deemed as payment and therefore the 5 year clock restarts.

 

I'm sorry, but I cannot see it from any other angle.

[ew23]

Do you therefore conclude that the 5 years will start from the day I asked for the charges to be repaid or the day they were credited to my account (around a month later)?

[maroondevo52]

The day you acknowledged the account asking for the charges refund.