But EU law says that jurisdiction law would be subject to any mandatory laws of the land where the consumer took out the contract. And the Scottish Prescriptions Act 1973 is mandatory law if a consumer takes out a contract when domiciled in Scotland. This does not change just because they move to England or anywhere else even if the contract states that it is subject to English law. But conversely if the consumer signs the contract when domiciled in England and moves to Scotland they are covered as they have to be sued in Scotland where it would be against Scottish public policy to allow a suit after the five years had passed. As I said before it is more complex than it seems.

I can only go by what I read, it is just my interpretation. Please explain what you mean by twaddle. This FOTL thing seems to be quoted as an answer to anything people don't agree with but without explaining why.

This seems a little strange. The lender has a way of protecting their assets by appointing a Law of Property Act or Fixed Charge Receiver but you would have been written to by the lender if this was the case I'm sure. If the lender does not use a properly appointed LPA receiver they run the danger of becoming the landlord in law and taking on responsibility and risk they do not want! I can see nothing on the Ascent web-site that points to them doing that type of work (but bear in mind you do not need to be qualified to be an LPA receiver). For your own protection just dig out your tenancy agreement and see whether it mentions anything about a mortgage charge on it and what would happen in the case of repossession etc. Many don't include such terms but some do. As your mother has only lived there a month I'm assuming that any mortgage was in place prior to her moving in. At the end of the day with nothing official from the lender I wouldn't cough up a single penny to anyone else! After all, you don't want your landlord coming after you because you paid someone else who was not authorised to collect it. Forgot to mention, that as far as I am aware, your mother should be protected from being asked to leave during the initial six months of the assured shorthold tenancy (I am assuming it is an AST?) That is normally 6 months but can be longer Please check the agreement. But that is only if she pays the rent on time and is deemed to be a 'lawful tenant', by that I basically mean that the mortgage company was aware that the house was or was likely to be tenanted. This'll teach me to get my ducks in a row before bursting into print!! One other thing, as a tenant you should ALWAYS open any letter that is addressed to the 'the occupier' or somesuch as lenders do not know who is in a rented property and that is how they write to you before going to court for repossession against your landlord. It may be that these had already been sent before your mother moved in. I bet something else occurs to me just as I press the 'reply' button.

As an extra, are you aware that when a debt is extinguished under the Scottish 1973 Act the lender cannot claim tax relief on the loss? See - http://www.hmrc.gov.uk/manuals/ihtmanual/ihtm28384.htm So the more of these the DCAs hold the worse for them if they don't recover! As long as they are good little boys and girls and fill in the forms correctly.

I was looking at sources like this - http://www.out-law.com/page-479 Near the bottom it looks into the differences between B2B and B2C dealing. One of the things that I found out was that, in the absence of any other guidance, the applicable law over a contract is derived from the concept of the 'country closest to it'. And this was normally down to the party that had the 'substantial performance'. In English law it seems that party is the one that provides the service, so it would appear that in B2B cases the applicable law is where the lender is based. But in B2C cases it is the domicility of where the consumer made the contract because that is what the EU consumer protection law says. When I first started digging I thought there would be a simple answer, but it seems there is not.

Depends whether it is a business debt or a consumer debt. If it is a business debt and both parties lived in the same region when the contract was signed and the applicable law is stated on the paperwork then the lawsuit may be brought in a jurisdiction outside of Scotland.

As I understand it, the first thing is to see which law decides both the applicable law and the jurisdiction (two different things) according to EU legislation (which also covers the different jurisdictions of England & wales, NI and Scotland): For a debt contract signed before 02/04/1991 it is UK common law (whatever that is). For a debt contract dated between 02/04/1991 and 17/12/2009 it is the Rome Convention. For debt contracts after 17/12/2009 it is 'Rome I'. See here: crippslink.com/index.php?option=com_content&view=article&catid=26%3Acdr-publications&id=805%3Arome-1-the-law-applicable-to-contracts&Itemid=537 This though does not include the 'consumer' aspect. As an example see: If you are domiciled in Scotland - ec.europa.eu/civiljustice/applicable_law/applicable_law_sco_en.htm - (I think this is Rome convention). If you are domiciled in England - http://ec.europa.eu/civiljustice/applicable_law/applicable_law_eng_en.htm - (I think this is Rome convention). There is also one for each EU country on the same europa website. If you look at many UK lenders' T&Cs these days they actually say that the applicable law is the law of the country the consumer has on their application form. But even that does not guarantee anything for the lender it seems. Under EU law it appears that the consumer will always be sued in the country in which they are domiciled. But the consumer can sue the provider either where they live or where the provider has their base. (Remember this is consumer law designed to be on the consumer's side.) As I read it, as a consumer in the EU you can gain the protection of the law that is most beneficial to you, but I am happy to be proven wrong. Especially where the law is mandatory in either: the country in which you signed the doc or the country you are being sued in. As an example, if it is possible to contract out of consumer protection in Germany where you signed the contract and you are sued in the UK where you live where you can't contract out then UK law will protect you. And remember that under s.13 of the Scottish Prescriptions Act 1973 the relevant parts of that Act are mandatory (can't be contracted out of). So a contract you signed when in Scotland saying it is governed by English law should still reach the buffers at the Scottish five year point - as long as you tell the DCA/courts. But be sure of your ground! As one source I looked at said, a lot of this is undecided as yet! I just wish it was simpler, but then it has to be as complex as possible, otherwise how could DCAs fool the public and how could lawyers earn their extortionate fees?

Let's hope that Cabot are too busy over the next few weeks assessing all those nice new juicy 'assets' they've bought to worry about chasing the rest of us holding their own tired old worthless accounts. Oh! But the stuff they've bought is even more worthless - it brought the previous company down! But no doubt anyone who's on the Equidebt database will now be getting worthless Cabot confetti over the next few days.

Good point snowy101. But it might also encourage remaining DCA staff to post misleading info on here as 'Disgruntled ex of ........ '.

Lots of great advice there for you . The reason I asked about sole ownership was just to see if anyone else was involved.

Remember that if you move to a country within the EU they can chase you a bit more easily than elsewhere but it will still be difficult for them. They can take you to court but only in the country in which you are domiciled when they take the action. They can, in certain circumstances, take you to court in the UK and then apply to get the courts of the country you live in to enforce the debt, but they'd have to find you first. It all comes down to if they think they could make a profit. In your position with somewhere to go I'd be looking to burn the bridges! Don't leave a trail.

Seems strange that they were reluctant to take the payment you offered, but it may be that if they have now taken it they've possibly accepted your proposal. Are you the sole owner of the property and the mortgage is in your sole name?

First thing I would do is get a copy of what is on the land registry and see if you can combat it as that seems to be the root of your problem. Without knowing exactly what is there you won't know what to do. landregistry.gov.uk/public/faqs/what-information-can-i-get-from-land-registry

Your friend jointly with the person they jointly own the property with is at liberty to sell any asset they have to anyone they choose for any price they like. That is unless the house has been taken into possession by the lender. But bear in mind that this would be complicated if there are other creditors involved who could argue that by getting the market value for the property (as opposed to the knock down offer you make) that they would then also have their accounts satisfied. So there are issues when there are any other creditors who could argue that they've been diddled when your friend sells the house to you at a knock down price. If it's been repossessed the mortgagee (lender) also has a duty to the mortgagor (borrower) to get market value for the house. Could you imagine the furore if a bank repossessed the house then sold it off to one of the directors for a song just to get the mortgage money back? Also, when the house gets sold the other joint owner (wife) has the right to ensure the house is sold at the market value to ensure they get their share of any equity left when the mortgage debt is satisfied. At the end of the day you would be expected to pay full market value. Why doesn't your friend just sell to whoever for the best price?

Have I got this wrong, I thought a decree was enforceable for 20 years? ( see - bdl.org.uk/images/prescriptions.pdf)

I was reading some credit card T&Cs the other day when I saw it state that the applicable law governing the contract would be: English if the address on the application form was in England and Wales. Scots if the address on the application form was in Scotland NI if the address on the application form was in NI I then Googled for some others as well as loans T&Cs and many said the same thing, the rest seemed to say that the relevant law was just English. So I thought to myself that these credit card companies wouldn't be expressing a difference in law based on the address on the application form without a good legal reason. Looking further into it I saw that many debt forums say that 'jurisdiction' determines the law, jurisdiction as determined by EU law (2001). But this did not quite sit with me so I researched further. As I understand it there are two parts to consider: 1. Which country's law is to be applied to the contract 2. Which country(s) has the jurisdiction to hear and decide the case And the answer may end up to involve two separate countries. And this applies to debts between the differing law systems within the UK as equally as it does to debts between say a French creditor and a German debtor or say Spain and Ireland. As far as I can make out, the relevant EU directive and supporting law says that where a consumer contract is concerned: 1. The applicable law is determined by where the contract was set-up as long as the consumer was domiciled there in accordance with the rules (living there for the required period etc). So if signed in Scotland then Scottish law applies. This cannot be signed away unless special conditions are met. It does not seem to matter where the default took place. It also overrides the term in a contract where it just says that the applicable law is English. 2. Then the country having the jurisdiction to hear and decide the case will be the country in which the consumer is domiciled when legal action is taken. But note that there may be times when action can be taken in the provider's own country (not usual). That means that a case can be heard in one country subject to another country's law. IF this is the position it has some interesting outcomes (and that is a big IF): For example - anyone being taken to court in England & Wales when the debt was signed in Scotland then Scottish law applies so making the claimant's position harder to prove given the Scottish courts' stance on relevant CCA paperwork. The defendant should insist that Scots law is followed. If it is the other way round then make sure the Scot's court uses its own systems. The Statute of Limitations 1980 or the Prescription and Limitation (Scotland) Act 1973 will apply based on where the contract was signed by the consumer, not where the default took place or where the debtor lives now. But a creditor in England trying to take to court a debtor who signed the contract in England but now lives in Scotland after the five years has passed would have another year to take the debtor to court in England (allowed by the EU regs I think), get a judgement then get the Scots courts to enforce it. (Do you think they'd bother.) This is purely my interpretation. Resources: europa.eu/legislation_summaries/justice_freedom_security/judicial_cooperation_in_civil_matters/l33054_en.htm kentlaw.edu/cyberlaw/docs/rfc/euview.html out-law.com/page-479 internationaltrade.co.uk/articles_print.php?CID=1&SCID=17&AID=33 legislation.gov.uk/ukpga/1973/52

Hi unclebulgria867, I think you have missed my point. If a DCA buys the debt based on a defective contract and then convinces a debtor to pay based on misleading them then I would say that the DCA that misleads people has no right to collect.

The debt may be 'legitimate', but if someone knowingly buys an unenforceable debt then surely they also buy the debt clock that is running with it? So any misinformed acknowledgements or payments made by a party to that contract are null and void in equity?

Good point but not what I am arguing. I am saying that any debt purchaser that knowingly goes after a debtor based on a flawed contract is not following equitable rules, so loses the right to the proceeds.

The tax position is a red herring. The OC may get tax relief but the subsequent DCA will pay tax on income they receive from payments from debtors. Tax will be neutral in this regard. If the OC claims tax relief then gets payments they will still have to declare those later payments and pay tax on them.

I must admit to being ignorant as to FOTL. Please can you educate me?

It is actually quite simple. The debt purchaser buys a debt knowing that it is unenforceable based on the paperwork they received from the original creditor and then supply to the debtor trying to convince them that it is a proper contract. They entered the contract as a third party on that basis so should not be able to stop the statute of limitations clock running when a debtor pays them or acknowledges the debt to them. For them to come up with new paperwork later would then void the initial 'contract' that they formed.

Hi Dodgeball, under Jones v Link (http://www.bailii.org/ew/cases/EWHC/QB/2012/2402.html) the purchaser becomes the creditor so the rights and duties are assigned. Otherwise a CCA request to a DCA would be invalid.

Hi Dodgeball, But where is the meeting of minds to base the contract on? No meeting of minds no contract.

I agree with respect to their tactics and that a debt exists, but surely it comes down to contract law. Is there a meeting of minds between all parties? Did the debtor agree that the debt was collectable even if no paperwork existed? Did the debtor agree that someone could purchase the debt and mislead them over the law? If not then any contract based on that must be voidable. And this is the type of contract DCAs rely upon - a contract based on ignorance.