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Old debt in Spain being chased in UK


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I am writing on behalf of my father, who is retired and unwell.

 

He and my mother lived in Spain for a number of years,

and took out a loan for what he thinks was about 1000-2000 Euros whilst they were there,

which they serviced on a regular basis.

My mother sadly passed away in 2001,

and my father returned home to the UK.

He thought all his business in Spain was concluded.

 

Out of the blue, now, at least 10 YEARS later, he has received a letter from a solicitors in London (who also have an office in Spain) demanding he gets in touch with them before the 10th July.

They claim he owes 4,196.23 Euros.

He is very agitated and upset by this.

He has no savings to speak of and no great assets.

He lives on pension credit and does not own his own home.

 

I have been looking into the matter for him and would really appreciate some advice.

I understand there is "The Prescription and Limitation (Scotland) Act 1973" and the "Limitation Act 1980" the first which does not allow creditors to chase debt if they have not contacted the debtor for 5 years, the second of which does this for 6 years.

Do these laws apply in my Dad's case?

 

I've also read up on the European Payment Order to try and figure what action the solicitors are planning.

I am thinking we should send a letter similar to the one I have copied from this site below.

Please let me know your thoughts.

Many thanks.

 

 

Dear Sir/Madam

 

Acc/Ref No ****

 

You have contacted me regarding the account with the above reference number, which you claim is owed by myself.

 

I would point out that under The Prescription and Limitation (Scotland) Act 1973 Part 1 Section 6 "If, after the appropriate date, an obligation to which this section applies has subsisted for a continuous period of 5 years:

 

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

(b) without the subsistence of the obligation having been relevantly acknowledged,

then as from the expiration of that period the obligation shall be extinguished:"

 

I would also point out that the OFT say under their debt collection Guidance on statute barred debt that "it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period".

 

The last acknowledgement of this alleged debt was made over five years ago.

Unless you can provide evidence of payment or written contact from myself in the relevant period under Part 1 Section 6 of The Prescription and Limitation (Scotland) Act 1973 , I would respectfully suggest that you are no longer able to take any court action against myself to recover the alleged amount claimed.

 

Should you continue to pursue this account without providing this evidence I shall seek an interdict and damages accordingly. A formal complaint will also be made to Trading Standards along with a report to the OFT questioning your fitness to hold a consumer credit license.

 

I await your written confirmation that this matter is now closed and that no further contact will be made concerning the above account after that last letter.

 

I look forward to your reply.

 

Yours faithfully

Mr A N Other

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It's statute barred, so if they were to try and bring a claim against you in the UK ( they wont), then SB is an absolute defence.

 

Personally, i would simply ignore them. Or you can send a simple SB letter and then ignore them.

Any advice i give is my own and is based solely on personal experience. If in any doubt about a situation , please contact a certified legal representative or debt counsellor..

 

 

If my advice helps you, click the star icon at the bottom of my post and feel free to say thanks

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The statute of limitations in Scotland is 5years with no payment or written acknowledgment of the debt the debt in Scotland is extinguished.

In England an Wales the limitation is 6 years the debt is still collectable but not enforceable in court.

The OFT states that it is unfair to pursue for payment (of a stat barred debt) once the debtor has informed the creditor of the status of the debt and they will not be paying.

 

The two scenarios are not interchangeable.

 

You must ne clear under which jurisdiction this debt falls.

Any Letters I Draft are N0T approved by CAG and no personal liability is accepted.

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It will be the limitation act in the country the debt was incurred that would apply. In spain it is 5 years, so your Dad could just send a letter back saying that he has not been resident in Spain since 2001, is not aware of any liability to be outstanding and in any event statute of limitation laws in Spain would apply. Then say that he will not communicate with them in any way and that they must stop contacting him or they face being reported to UK regulatory authorities.

 

I am presuming that this debt was not secured to property and there has not been any Spanish court judgement. If this is the case then if more than 5 years has passed without payment or written acknowledgement of the debt, then the debt will not be enforceable.

 

Many companies who write saying that they are Solicitors are actually just debt collection agencies.

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I am writing on behalf of my father, who is retired and unwell.

He and my mother lived in Spain for a number of years, and took out a loan for what he thinks was about 1000-2000 Euros whilst they were there, which they serviced on a regular basis. My mother sadly passed away in 2001, and my father returned home to the UK. He thought all his business in Spain was concluded.

Out of the blue, now, at least 10 YEARS later, he has recieved a letter from a solicitors in London (who also have an office in Spain) demanding he gets in touch with them before the 10th July. They claim he owes 4,196.23 Euros. He is very agitated and upset by this. He has no savings to speak of and no great assets. He lives on pension credit and does not own his own home.

I have been looking into the matter for him and would really appreciate some advice.

I understand there is "The Prescription and Limitation (Scotland) Act 1973" and the "Limitation Act 1980" the first which does not allow creditors to chase debt if they have not contacted the debtor for 5 years, the second of which does this for 6 years. Do these laws apply in my Dad's case? I've also read up on the European Payment Order to try and figure what action the solicitors are planning.

I am thinking we should send a letter similar to the one I have copied from this site below. Please let me know your thoughts.

Many thanks.

 

 

Dear Sir/Madam

 

Acc/Ref No ****

 

You have contacted me regarding the account with the above reference number, which you claim is owed by myself.

 

I would point out that under The Prescription and Limitation (Scotland) Act 1973 Part 1 Section 6 "If, after the appropriate date, an obligation to which this section applies has subsisted for a continuous period of 5 years:

 

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

(b) without the subsistence of the obligation having been relevantly acknowledged,

then as from the expiration of that period the obligation shall be extinguished:"

 

I would also point out that the OFT say under their debt collection Guidance on statute barred debt that "it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period".

 

The last acknowledgement of this alleged debt was made over five years ago. Unless you can provide evidence of payment or written contact from myself in the relevant period under Part 1 Section 6 of The Prescription and Limitation (Scotland) Act 1973 , I would respectfully suggest that you are no longer able to take any court action against myself to recover the alleged amount claimed.

 

Should you continue to pursue this account without providing this evidence I shall seek an interdict and damages accordingly. A formal complaint will also be made to Trading Standards along with a report to the OFT questioning your fitness to hold a consumer credit license.

 

I await your written confirmation that this matter is now closed and that no further contact will be made concerning the above account after that last letter.

 

I look forward to your reply.

 

Yours faithfully

Mr A N Other

 

Which DCA is chasing this, the limitation of his residential are is important.

Any Letters I Draft are N0T approved by CAG and no personal liability is accepted.

Please Consider making a donation to keep this site running!

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Thank you so much for your replies.

He has no idea whether a Spanish Court Judgement was issued or not. He certainly did not recieve one. The "solictors" Eshkeri & Grau, do not say there is one in their letter. They quote: "If you are unable to bring your account up to date but you wish to avoid further proceedings to be issued against you and your assets, you should contact us immediately in order to study an alternative solution."

The loan was not secured against any property.

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I tried to upload a link to the DCA website but cannot because there are not more than 10 posts. They come up on a google search and under "debt collection" they say this:

 

Cross Border Debt Recovery

 

If you are based in the UK and need to recover a debt from a party located in Spain, or vice versa, we can assist whether or not you already have obtained a court judgment against the debtor.

 

At E&G Solicitors in Spain we specialise in the recovery of debt by way of a European Order for Payment, which can be obtained from courts anywhere in the EU, other than in Denmark. No judgment is necessary in order to obtain the European Order for Payment. This means we can help you to recover debts quickly and cost effectively.

 

If you have already obtained an uncontested judgment in respect of a debt, either in Spain or in the UK, we can help you to enforce that judgment in the country of residence of the defendant by way of a European Enforcement Order. The procedure speeds up the process of enforcing judgments, and allows you to access the funds you are owed at a vastly reduced cost.

 

For more information, or if you would like us to assist you in recovering a debt in Spain or in the UK, please contact...

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Ok so Spanish based solicitors I believe the limitation in Spain is 5 years.

So write back with the following.

 

Ehskeri and Grau Solicitors.

 

Ref: Use theirs.

 

Sir/Madam,

 

I refer to your letter dated xx xx xxxx, regarding an alleged debt for Exxx.xx please take note I do not acknowledge any debt to Eshkeri and Grau or any third party you may claim to represent.

 

Given the information I have this alleged debt is statute barred under Spanish, English and Scottish Law, therefore no payment will be made now or in the future.

 

I now consider the matter closed and this is my final response.

 

No need for quotes of law or regulations.

Any Letters I Draft are N0T approved by CAG and no personal liability is accepted.

Please Consider making a donation to keep this site running!

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Would it make a difference if they had issued a Spanish CCJ after he left Spain and was unaware of it?

(Once again thanks so much for all your help)

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Would it make a difference if they had issued a Spanish CCJ after he left Spain and was unaware of it?

(Once again thanks so much for all your help)

 

My feeling is they would have mentioned any such court action upfront, would not be worth hiding it!

  • Confused 1

Any Letters I Draft are N0T approved by CAG and no personal liability is accepted.

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Nemo Mortalium Omnibus Horis Sapit: Animo et Fide:

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That's what I thought. Should I send the letter for him do you think? I'm not sure he is up to it.

Yes definitely may be get some form of proof of posting too.

Any Letters I Draft are N0T approved by CAG and no personal liability is accepted.

Please Consider making a donation to keep this site running!

Nemo Mortalium Omnibus Horis Sapit: Animo et Fide:

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Thank you, you've been brilliant!

 

You're most welcome, please keep us up to date on progress!

Any Letters I Draft are N0T approved by CAG and no personal liability is accepted.

Please Consider making a donation to keep this site running!

Nemo Mortalium Omnibus Horis Sapit: Animo et Fide:

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  • 4 weeks later...

Hello again, well my Dad has heard back. I have typed out the letter we sent and the reply.

It seems the debt is attached to a bank account and was not a loan but an overdraft by the looks of it.

The balance in Feb 2003 from the statement shows Euros 1,186.16 O/D with charges applied quarterly since then.

Any further help and advice would be greatly appreciated.

Many thanks.

 

 

Eshkeri and Grau Solicitors

1 Fetter Lane

London

EC4A 1BR

 

Dear Adam Florsheim

 

Re: Your ref:

4097 0000009 270/Banco Santander

N/Cliente: Banco Santander (Red Banesto) v Peter Manley Contrato De Prestamo

 

I refer to your letter dated 1st July, regarding an alleged debt for 4,196.23 Euros. Please take note, I do not acknowledge any debt to Eshkeri and Grau or any third party you may claim to represent.

 

Given the information I have, this alleged debt is statute barred under Spanish, English & Scottish law, therefore no payment will be made now or in the future.

 

I now consider this matter closed and this is my final response.

 

Yours faithfully

Mr

 

This is the reply:

 

Many thanks for your letter dated the 08 of July 2013 explaining your reasons why you feel this debt does not need to be paid by yourself.

 

While I understand your reasoning on the statute of limitations, the debt is not actually old but in fact current.

It seems you have failed to close your bank account with Banesto, and under the terms and conditions you signed they are continuing to hit you for maintenance charges for the privilege of having an account with them in addition to the use of your bank card having plunged the account into the red in February 2003. I have enclosed a current bank statement, please feel free to contact me if you need any clarification of the concepts.

 

Did you give the bank written instructions to close this account and therefore the failing is on their side? If you did, please provide me with evidence of this which I can present to our client. If you did not, then you will need to take some action to close this account and thereby prevent the debt from continuing to increase.

 

As to the current debt amount owed of Euros4,308.20, our law firm only has instructions to seek an amicable settlement. It is my sincere hope that between us an amicable agreement to closing this matter once and for all can be found.

 

Please contact me on (phone & email), to let us know what steps you will be taking to resolve this matter.

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That is rubbish. Any statute of limitations is affected by actions of the account holder only and it does not matter whether the account is closed or not. I would just write back to advise that the account is subject to statute of limitations and you will not be entering into any further communications with them. Suggest that the return their file to their client, as you cannot be expected to provide paperwork going back 10 years ago regarding the closure of the account, as the bank should maintain such records.

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Thank you. It seems the solicitor is trying to get dad to close the account. Perhaps in some way that would make him liable?

I have read through some of the act and think you are right! It clearly states 6 years as the time limitation & I can't find anything to do with open or closed accounts.

He's really not well, struggles with the cost of living as it is, doesn't have any savings and this is really stressing him out. This forum has really helped.

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If you read the letter from these Solicitors (?) it is carefully worded.

All it says is that the debt is current, but it does not really address the issue of statute of limitations in terms of enforceability.

What they are trying to do is trick you into making payments on the basis of you believing that they can enforce the debt, which does not appear possible. If the debtor has not made any payment or admitted to the debt, it is statute barred, so not enforceable in court.

 

The letter you send back should be something like this.

 

Thank you for your letter dated xxxxxxxx.

 

Nothing you have said in that letter changes the fact that the matter is subject to statute of limitations.

Whether the account was closed sometime ago or is still showing as open, is of no relevance.

An account holder cannot be expected to maintain records going back 10 years ago and therefore you will have to ask the original creditor to check their records.

 

May I suggest that you refer this back to your client and close your file.

No further communications will be entered into.

 

Yours Faithfully.

We could do with some help from you.

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