I don't know whether you've seen this but it does give a break down of the legal pitfalls involved from the viewpoint of the lender and LPA receiver: http://www.jgrweb.com/downloads/buy_to_let_property_law.pdf

Sounds to me like the DCAs are getting desperate and are hoping that they can trawl about to find a kindly relative to pay this off for you! They can also then try the old statute barred clock stop thing because a payment was made and hope to rely on peoples' ignorance of the law.

It doesn't ring true to me either. There may be a lot more to the story in the background over other debts/mortgages that the landlord has. But now that you have that letter your mother can argue that she is a lawful tenant and that the lender must stick to the tenancy agreement because, if their agent (the debt collector) was aware that the property was let out, then they are too. One thing to check, was the deposit put into a properly regulated tenant's deposit scheme?

I tend to disagree Dodgeball. A CCA in Scotland is subject to Scottish mandatory law (those that cannot be signed away) like the prescriptions act 1973 - so it may not matter where they move afterwards. Whereas in England it would be subject to the limitations act 1980 in the same way. Please do not confuse 'jurisdiction' (the right to hear a case) with applicable law (what law applies to a case). They are not the same thing. And the law covering conflicts and differences in jurisdiction and applicable law between Germany and France is the same as those between England and Scotland etc. As I see it there is no simple rule (something we would like to see) rather it is on a case by case basis depending on the date of the contract, the domicility of the parties as well as the question of business to business or business to consumer.

But Ganymede, where the debtor who signed a contract in England but defaulted and now lives in Scotland gets taken to court after five years of no acknowledgement/payment, it is against Scottish public policy if they are a consumer to say that the debt still exists. So they are protected? Rameses, as I understand it business to business contracts are viewed more strictly by the courts because the parties are 'equals' whereas the consumer is always viewed as the underdog so given more protection. In fact even where a consumer contract specifies that it is under 'English law' that may not always apply. See here: http://www.govanlc.com/jurisdiction.htm This applicable law versus jurisdiction has further implications - if a contract is governed by scots law but heard in an English court does the Scots more stringent proof of the CCA docs apply?

I took this comment: From here: http://www.out-law.com/page-479 And this one: From here: http://www.kentlaw.edu/cyberlaw/docs/rfc/euview.html

Hi Ganymede, the only point I would make with your reply is that, an EU consumer MUST be sued in the country in which they are domiciled at the time. So in this case the consumer would have to be sued in the French courts, but using which law? And would the French or English SOL be the one to use? But the route you suggest could I think be used against a business debtor.

It seems to me that there are several factors in the example you put: Where is the loan taker domiciled? Where is the lender domiciled? What applicable law is stated on the contract? Is the loan taker a consumer or a business borrower? I may be wrong but as I see it a consumer would probably be protected by the Scots 1973 Act, but a business borrower could legitimately be taken to court in England (no consumer protection) and the English SOL would apply.

Hi Dodgeball, I do agree that as long as the Op in the original thread was a 'consumer' as opposed to a business customer they would probably be covered by the 1973 Scottish Act. But with the complexities as pointed out by rameses we need to be a little careful. For my part I lived in Scotland then moved to England where I defaulted on a couple of consumer credit cards. I have not paid/acknowledged for 5 and a half years. But just looking for a simple answer to 'am I covered by Scots or English law' threw up more questions than answers - especially as the laughable T&Cs that the DCA and OC sent to me said that the alleged and unreadable agreement I signed when domiciled in Scotland was governed by 'English law'. As a law graduate I found it hard to wade through and understand all the conflicting laws, so i was worried that others might end up being shafted because they put the wrong argument forward.

Hi rameses, that was sort of what I was trying to do. But what concerned me was that it seems that business to business debt is treated differently to business to consumer debt where jurisdiction and applicable law are concerned. Also there are differing laws depending on the date of the contract as well as what was actually written on the contract agreement as well as where each party was domiciled when the contract was formed. This would mean that the debtor would have to be extremely careful when just saying this is statute barred. As to my reference to 'non contractual tort', all I was pointing out was that when looking at breach of contract what is important is what took place when the contract was formed. Where the cause of action took place seems to have no bearing on jurisdiction or applicable law for a contract only for a wrong such as injury.

These took me a long time to dig out and I was not aware that any of the following sites that I posted were mason/FOTL sites: Cripps Harries Hall: http://crippslink.com/index.php?option=com_cont ent&view=article&catid=26 %3Acdr-publications&id=805%3Arom e-1-the-law-applicable-to-contracts&Itemid=537 Europoean Commission: http://ec.europa.eu/civiljustice/applicable_law/applicable_law_sco_en.htm European Commission: http://ec.europa.eu/civiljustice/app...law_eng_en.htm Pinsent Masons: http://www.out-law.com/page-479 HM Revenue and Customs: http://www.hmrc.gov.uk/manuals/ihtmanual/ihtm28384.htm

Thanks dx. I just think this subject should be looked at in more detail because at some stage someone my think a debt is statute barred when it is not.

I was only trying to discuss around this issue and point out what I've read on legal sites.

Hi, sounds like you're going through the mill at present, especially as you are on medication. It looks like they've got a judgment but as you have nothing to take they are trying to scare you into paying. Remember that if the court said you can't afford to pay then no-one else can force you. In fact the court might be interested in this person's activities. Also there are time limits on some things. Can you help us by putting some rough dates to when you got ill, defaulted and the CCJ etc?

Where you default has no bearing, a cause of action only applies to non-contractual tort. It all depends on the applicable law at the time the contract was formed - that is the bedrock of contract law after all. Enforcement of the sums owed can only be derived from the contract itself - otherwise trying to prove a debt is not enforceable because the contract was faulty due to missing terms would never work. If you live in Edinburgh, take out a loan then default before moving to Swansea what then? As a consumer you have to be sued in the country you are domiciled in. Which statute of limitations applies and why? Bearing in mind that when forming the contract you are not allowed to opt out of the Scots prescriptions Act. And what if you moved to Wales before defaulting? In both cases above the contract was signed in the same place. So if consumers have to be sued in the place they are officially domiciled what would happen?

Surely if the claimant discontinued the claim then it as if they never made it? So the SB clock kept running?

The answers at 3 and 4 above show how confusing this can be. The substantive law is decided where the contract is formed within the limits of UK and EU law - so of course several bits of legislation are going to apply. But trying to apply one single response to this is the same as when a judge asks you 'why is that agreement wrong?' and you just say 'the case of Wilson sir', and are then surprised that you lost (as some have). Scottish courts can decide (have jurisdiction over) cases where foreign laws also apply. What would you say if the claimant's barrister showed you the agreement from this case and it says quite clearly on it that the applicable law is that of NI, or more likely that of England? It's what you signed so it must be right so NI or English statute of limitations applies not the Scots one, 'the fact you are being sued in Scotland doesn't alter that' they could say. And as we know we can't rely on judges to get us out of anything, we have to understand and do it ourselves.

Is your ex aware that this will trash his credit rating as well as damage you? That is if the property is in your joint names? Are you in a joint tenancy or tenants in common? When you parted what was the agreement over the future of the property between you?

Not so, the cause of action under EU law only concerns non-contractual tort. The law governing a contract is determined on the date it is made. That is when the relevant mandatory laws are decided. Bear in mind that many UK credit agreements today say just that - in fact they say that the applicable law will be governed by the address on the application form (Eng&W, Scot or NI). It then does not matter where you move to or where you default.

Every time you write to a lender or DCA in these circumstances you must always state that you do not owe them, or anyone they represent, any money.

It isn't about what those individual pieces of legislation say. It is what EU legislation says and that seems quite clear. Where there is a consumer involved they are protected by the best of either the law where they signed the contract or where they are domiciled at the point where the law suit is brought against them.

I had a phantom payment letter from cabot in 2009. All I did was reply basically saying: I do not owe you or anyone you represent any money You say I recently made a payment to you, but I am telling you I did not nor did I tell anyone to act as my agent and pay you any money. If you continue to claim this then you must tell me: The data it was made on How much The cheque number The postal order number the electronic transfer details the account it came from You will also supply me with a copy of your records regarding this payment. They then sent me (several months later) a copy of the account that confirmed no payments but they did not apologise.

But neither party would be domiciled 'at sea'. Each would have to be domiciled somewhere and that would decide the applicable law and the jurisdiction. then it would be down to three things: The date of the contract Whether it was business to business or business to consumer where the parties were domiciled at the contract signing

With what I assume to be over 3 months in arrears it may be difficult. It may be a silly question but have you tried your local CAB? Any errors that the landlord makes when serving a s.8 notice can also delay things. It also comes down to the relationship you have with your landlord, which in your case may not now be good.

Many people do not realise that the LPA Receiver (or in circumstances where they are appointed under the mortgage deed - as opposed to the Law of property Act 1925 - when they are called Fixed Charge Receivers) are appointed as agents of the mortgagor (the borrower) - it says so in the mortgage deed. But they are appointed by the mortgagee (the lender) sick isn't it? This means that the borrower is responsible for all errors made by the LPA receiver and the lender has no duty to vet the receiver! If you look at an LPA receiver's letter it always says somewhere that they are always agents of the mortgagor and it will also say this on the agreement between lender and receiver. But the LPA receiver has to be appointed properly or the lender and/or receiver could be in a world of hurt. LPA receivers can be appointed as: Agent to the Mortgagor (what they always tell you) Attorney to the mortgagor (goes hand in hand with the above as they have to sometimes sign stuff in the place of the borrower) Agent to the mortgagee (lender will avoid this at all costs - especially BTL cases) Principal agent in their own right - LPA receiver will not do this except in extreme circumstances But where the mortgagor is or they become aware that the mortgagor is bankrupt they can never be appointed as mortgagor's agent (American Express International Banking Corporation v Hurley 1985). But they tend to ignore this and rely on ignorance as bankrupt mortgagors cannot afford legal advice. But once they know they are likely to be 'disinstructed'. And this is because a mis-appointed LPA receiver is technically a trespasser. If you have been made bankrupt and there is an LPA receiver involved you might want to tell them. This is especially the case if you are a tenant and your landlord has LPA receivers appointed and you know the landlord is bankrupt, it gives you breathing space if you challenge the appointment (you should get copies of the documentation to check). The powers of an LPA receiver are dictated by the LPA 1925, the powers of a fixed charge receiver by the mortgage deed. A receiver so appointed cannot act outside those limitations or they are trespassers.