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eclecticzebra

BOS Current Acount - Denying account is statute barred

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Hey this is my first thread but i've been following closely in the background for a long while. I'm not sure if this should go here or the scottish debt forum :/

 

Hbos have a default registered on my current account dating back to an alleged debt that was last acknowledged in October of 2009 by way of a transaction by myself.

 

I had forgot all about this until recently when I checked my credit report on Noddle so in response knowing the age of the account I fired off the template provided on here for debts affected by scottish law.

 

Bank of Scotland

Sort Code: ******

Account No: ********

I do not acknowledge the alleged debt.

 

I have found that there is an alleged debt lodged against my credit file owed to the Bank of Scotland. Following your customer service advisors failing to follow the legislation and guidelines issued in relation to Statute Barred debt I feel I have no option but to raise this matter to yourself. I'd be grateful if you could read my following points in relation to the alleged debt and acknowledge it has now been extinguished.

 

I would point out that The Prescription and Limitation (Scotland) Act 1973 Part 1, Section 6 states as follows:

 

“If, after the appropriate date, an obligation to which this section applies (an appropriate debt) has subsisted for a continuous period of five 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/we would also point out that, in their Consumer Credit sourcebook, the Financial Conduct Authority states the following:

 

"In Scotland, a statute barred debt ceases to exist and is no longer recoverable if:

(1) a relevant claim on behalf of the lender or owner has not been made during the relevant limitation period; and

(2) the debt has not been acknowledged by, or on behalf of, the customer during the relevant limitation period." 7.15.3

 

"A firm must not continue to demand payment from a customer after the customer has stated that he will not be paying the debt because it is statute barred." 7.15.8

 

The last payment or written acknowledgement of this debt was made over five years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from me in the relevant period under Part 1 Section 6 of the above Act, I suggest that you are no longer able to take any court action against me to recover the alleged amount claimed as the debt is now extinguished under Scottish financial Legislation.

 

I await your written confirmation that no further contact will be made concerning the above account and confirmation that this matter is now closed with your entry against my name also subsequently removed from my credit file.

 

Regards

 

In response I received this back:

 

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I therefore raised a complaint to the Financial Ombudsman outlining the same complaint and informing them of the response and failure to comply with the relevant legislation/financial guidance.

 

This was the response from the ombudsman:

 

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So rather than appealing via the ombudsman, following their failure to make a decision based on the actual complaint of hbos pursuing a statute barred debt I emailed a complaint to Antonio Horta-Osorio(CEO).

 

Dear Antonio,

 

I recently made a complaint to the Financial Ombudsman Service and I believe if you look through the findings from my complaint they refused to be drawn on the legal status of the alleged debt. I therefore do not consider this matter closed and would like to re-iterate to you the following things, which I'd be grateful if you could explain to me of which yourselves at HBOS can't comprehend?

 

In my email I pointed out the following items:

1) Under The Prescription and Limitation (Scotland) Act 1973 Part 1, Section 6 states as follows.

 

“If after the appropriate date, an obligation to which this section applies (an appropriate debt) has subsisted for a continuous period of five 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…”.

 

2) The FCA say in their Consumer Credit sourcebook "...In Scotland, a statute barred debt ceases to exist and is no longer recoverable if:

(1) a relevant claim on behalf of the lender or owner has not been made during the relevant limitation period; and

(2) the debt has not been acknowledged by, or on behalf of, the customer during the relevant limitation period." 7.15.3

 

"A firm must not continue to demand payment from a customer after the customer has stated that he will not be paying the debt because it is statute barred." 7.15.8"

 

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

 

4) The FCA Consumer Credit sourcebook states further that "A firm must not continue to demand payment from a customer after the customer has stated that he will not be paying the debt because it is statute barred." 7.15.

Therefore it is clear that your original contact regarding this debt may well have been in breach of the FCA Rules referred to in item (2).

 

As you are no doubt aware, breaches of the FCA Rules are treated seriously by the FCA when considering your fitness to hold an Authorisation with the FCA.

 

Therefore I wish to formally notify you that unless I received confirmation that this matter is now closed, then I will not hesitate to make a formal complaint to the 'FCA' and also to 'Trading Standards'.

 

Furthermore, any attempted contact (other than to confirm that this matter is now closed) by any:

"trading style" of the Lloyds Banking group

constituent member of the Lloyds Banking group

a third party acting on your behalf

a third party that claims to have been legally assigned this debt

will result in an immediate complaint to the aforementioned regulatory bodies.

 

Also please note that any legal action you may consider will be FULLY and VIGOROUSLY defended, and you will be put to a strict proof of the alleged debt and any payment or acknowledgement that you claim within the relevant limitation period.

 

In line with the protocols on pre-action conduct, I therefore request a independently verifiable copy of any acknowledgement or payment that you may claim was made within the limitation period. Failure to comply with this reasonable request will result in your actions being brought to the attention of the court.

 

This COMPLAINT is not going to go away and ignoring this problem could potentially make your situation worse. I therefore strongly recommend that you send written confirmation that no further contact will be made concerning the above account and confirmation that this matter is now closed.

 

I would appreciate your due diligence in this matter.

 

Regards

 

To which I received the following reply:

 

Dear Eclectic

 

Thank you for your email. The Complaint Manager has again looked at your email, and has reiterated that he has nothing further to add to our responses regarding your complaint. Should you feel there is any additional information to be considered, you would need to provide it direct to the Financial Ombudsman Service, who will review your complaint there. Regrettably, we are unable to progress your complaint further from here, and must confirm that further emails or letters may be filed with no response, as protracted correspondence will not benefit either party.

 

Regards

 

T A Rose

 

 

So I'm kinda lost and not sure where I go from here... any help would be appreciated.

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Statute barred does not mean the debt has gone away, it means that the courts cannot be used to enforce collection, but it can still be chased by the creditor.

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Hi

In my opinion, the debt is not Statute Barred, it is extinguished (as this is in Scotland) I doubt they will try this via a court.

 

As for the default. It will stay on your file for 6 years as that is the standard time agreed.

 

As it stands, the credit file entry should vanish in 7 or so months.


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