Decree on a statute limitation debt

[asr2]

I acknowledge a debt to a court summons unaware that the debt had passed the required 5 years for SL. I requested and was granted a time to pay order which I have not yet begun the payment schedule. Can i challenge the fact the debt was SL before the decree was granted and therefore should it not have been enforced or is it just my donald duck that I was not aware of due process at that time.

 

Any info and guidence much appreciated.

[asr2]

Bump

[saintly_1]

As far as I am aware (I may be wrong) but once a debt is aknowledged then the limitations clock starts ticking again but I will check

[pt2537]

I acknowledge a debt to a court summons unaware that the debt had passed the required 5 years for SL. I requested and was granted a time to pay order which I have not yet begun the payment schedule. Can i challenge the fact the debt was SL before the decree was granted and therefore should it not have been enforced or is it just my donald duck that I was not aware of due process at that time.

 

Any info and guidence much appreciated.

 

 

Hi there,

 

I note you are quoting 5 years, can i ask are you in Scotland or England?

 

its vitally important as Scottish Law varies from English law in relation to time frames when a debt becomes Stat Barred

 

Regards

paul

[Filthy Monkey]

As far as I am aware (I may be wrong) but once a debt is aknowledged then the limitations clock starts ticking again but I will check

 

 

Only if it is acknowledged before it becomes Statute Barred. A debt based on simple contract in Scotland becomes Statute Barred after five years, at which time it is extinguished. Under English law the debt becomes Statute Barred after 6 years. Although the debt still exists, it cannot be legally enforced. Servicing the debt after it is barred does not reset the clock. Once it is barred, it cannot be re-instated.

[rory32]

A debt based on simple contract in Scotland becomes Statute Barred after five years, at which time it is extinguished.

Almost spot on, its actually the obligation that's extinguished.

If, after the appropriate date, an obligation to which this section applies has substided 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

Scots Law is based on Roman and canon law hence acts are often expressed in terms of rights and obligations. An obigation being the legal responsibility to meet the terms of a contract.

[asr2]

Confused Rory does that mean i have to honour my 'obligation' to pay under the time to pay directive or can I challenge it's validity, and subsequently the enforcement by the Sheriff court???

[Filthy Monkey]

Thank you, Rory

[rory32]

Confused Rory does that mean i have to honour my 'obligation' to pay under the time to pay directive or can I challenge it's validity, and subsequently the enforcement by the Sheriff court???

No. The sheriff won't have been made aware of any statute barring of the debt. It can't become un-statute barred and the act is deliberately worded in that the obligation is extinguished (assuming there was a continued period of 5 years without any acknowledgement). Once the obligation to pay something is extinguished it can't then be reinstated. You'll need to apply for the decree to be recalled though. Please read the factsheet about recalling decrees here

[Filthy Monkey]

asr2, I take it you are based in Scotland, then. You should be able to have the decree recalled so that you can submit your argument. I'm sure Rory will be along soon to confirm if this is the case, but until he is, have a look at this fact sheet. It is quite informative.

[asr2]

Many thanks Rory and FM, this advice will give me an opportunity to consider my actions.

 

Much appreciated.

[asr2]

Hi, Can you please confirm this is a correct assumption. I was presented with the court papers on 6/12/07 and acknowledged the debt on 27/12/07 when I submitted the time to pay directive. As said previously I was not aware this debt was staute barred until I found the default notice which was dated 14/12/02. I had not been in contact with nor made payments to anyone connected with tis debt up until the TTP order was submitted on 27/12/07. Am I correct in stating this debt is well and truly statute barred under Scots Law.

 

A prompt reply would be much appreciated as I am due to start payments on 5/3/2008.

 

Cheers all.

[rory32]

Am I correct in stating this debt is well and truly statute barred under Scots Law.

 

Yes. Post #6 is quoting from The Prescription and Limitation (Scotland) Act 1973 Part 1 Section 6.

[asr2]

Thanks again Rory, does the 5 year period start from the default notice or when a payment waqs last made, this would have a significant effect on the time frame..last paid march 2002.

[Filthy Monkey]

As Rory says in his previous post, the act states -

6. Extinction of obligations by prescriptive periods of five years. —

 

(1) If, after the appropriate date, an obligation to which this section applies 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

 

So, it starts from when you last made a payment to the debt or acknowledged it in writing, which would be March 2002. The fact that a default notice was served later is irrelevant. The finance company should, at that point, have taken legal action to recover their money. As they didn't, and then allowed such a significant period of time to pass before any action was taken, the debt is now Statute Barred and you should be able to have the decree recalled.

[asr2]

Great news FM will get the priocess for the decree to be recalled started asap..should I use a solicitor or do you think i have enough substance to go it alone...won't hold you to your view, f you know what I mean.

 

Anyway you and Rory are stars many thanks.

[rory32]

I would say that IMO you don't need a solicitor. If you wish to use one though make sure that any fees are agreed before hand.

[Filthy Monkey]

I agree. It should be pretty straight forward and you can always come back on here and ask for advice. No point spending money where you don't have to...

[asr2]

Mnay thanks guys, and congrats and respect on a great site.

[JohnBoy47]

Hi - I've got a similar problem. Lived in Scotland for a few years. Had credit card with Royal Bank of Scotland (visa I think). Moved back to the states in 1997. Now I've got a company (not Royal Bank) hounding me for some $ supposedly still owing on the RBS visa. They tell me I last paid on the card in June 2001. Anyone know whether the Royal Bank of Scotland credit card agreement requires application of Scottish law? Supposing it probably does. Also I guess if they sued me they'd have to do it in Scotland, although that would be a pain. I guess I could just tell court here that Scottish law applies that the obligation was extinguished June 2006. Any thoughts?

[asr2]

Hi Guys,

 

I am in deep trouble now and need your advice urgently. recieved a Charge for payment of money from the Sheriffs for the TBI account that is I believe statute barred as previously stated. I have not had it recalled yet and I am wondering if it is to late to do so now that I have had the charge for payment notice. I have 14 days to repay £7513 or else they will a)arrest my wages b) attach an auction of articles or c) sequstration. Waht should I do, can I still recall the decree and should I consult a solicitor.

 

please help this is extremely urgent.

 

regards,

 

John

[asr2]

Bump

[asr2]

Sorry to be impatient guys but I am really stressed by this.

 

Bump

[asr2]

Hi Guys,

 

Any advice would be much appreciated. Desperate to the extreme.

 

Regrads

 

John

[slick132]

Hi asr2,

I have not had it recalled yet

Did you APPLY to have the Decree recalled as advised in February or was this not done for some reason.