BOS [+live in Scotland] Debt Purchased by 1St Credit

[daviscup]

Hi dx,

 

I just checked what I was paid back on my statements &

 

looks like I was paid back 953.03 on a JNL transfer (what ever that is?)

953.08 cancelled insurance was 1,832.72 &

good will gesture of £394.67.

 

Unfortunately I didn't see a penny of it all went against the money owed:-(

 

Regarding the SD dispute with 1stcrud everything has went quite since mailing them with informing them that the debt is no longer active.

 

Kind of looking forward to there response.

[dx100uk]

well knock up a spreadsheet

http://www.consumeractiongroup.co.uk/forum/showthread.php?330996-Latest-Spreadsheets-PPI-Claims-and-Charges-Claims-Dec-2011

dx

[daviscup]

Ok finally received a response from 1stcrud, regarding the statute barred debt.

 

Quote.

I understand you consider the above account to be statute barred under the prescription and limitation (Scotland) Act 1973.

 

An action founded simple contract shall not be bought after the expiration of five years from the date on which the cause of action accrued.

 

The 'cause of action' that resulted in future payments becoming due and payable on the above mentioned account

was the issue of default notice

which gave notice for the arrears to be made prior to a specified date.

 

As payment was not received a default was registered on your credit file 31st May 2005,

therefore the six years commences from the date the registered.

 

However, as payments were subsequently received this extends the period by a further five years.

 

Please find enclosed for your case of reference, a payment for the period of 21st june 2005 to 10th November 2008

 

Therefore we do not consider account statute barred...blah blah

End quote

 

just to reconfirm last payment I made was 07/08/2007 £40.00 all others are returned ppi as requested on 03/06/2008.

 

Appreciate any help on how to respond?

x

[dx100uk]

PPI refund cannot change the SB date.

 

get them to prove WHERE the payments came from.

 

dx

[BRIGADIER2JCS]

Give me a while and I'll draft a letter for you their letter is rubbish.

 

Need to know when the last payment was made to the account?

And the explanation given and justification for the alleged payments pleas?

Edited July 15, 2013 by BRIGADIER2JCS

[daviscup]

Give me a while and I'll draft a letter for you their letter is rubbish.

 

Need to know when the last payment was made to the account?

And the explanation given and justification for the alleged payments pleas?

 

Thank would be great if you could draft a letter for me below details on the last payments made on account.

 

Payment of £40.00 paid on the 07/08/2007 by myself using mother bank card

 

Payment of £953.08 13/08/2008 JNL Transfer (result of PPI claim 03/06/2008)

 

Payment of 1,832.72 13/08/2008 Cancelled insurance

 

Payment of £394.67 10/11/2008 Good will gesture

 

Hope this is enough info

x

[BRIGADIER2JCS]

OK so the only 'personal' payment is the £40 o7/08'2007. Luverly!!

 

For The Personal Attention of

The Compliance Manager

1st Credit Finance Ltd.

 

Date: xx.xx.xxxx

 

Ref: use theirs.

 

Sir/Madam,

 

I refer to a letter from 1st Credit dated xx. xx, aaaa, in reply to may statement dated xxxxxxxxxx: asserting that the alleged debt is statute barred,.1st Credits claim that this alleged debt is not statute barred is totally refuted as a spurious attempt to mislead me as to the status of the alleged debt.

 

1st Credit is reminded that default dates and the date that starts a limitation period are not synonymous, this account was defaulted on 31/052005 (1st Credits information).

 

It is however agreed that a 'personal' payment of £40.00 was made on 07/08/2007 restarting the six year (5 years in Scotland) limitation period.

 

However 1st Credits Claim that the payments into the account made on 13/08/2008 and 10/11/2008 restart the limitations period is of course totally and completely wrong and is of no merit.

 

I am sure that 1st Credit is fully aware that these refunds of charges/insurance etc. were not personally made by me and do not affect the limitations period in England or Scotland as this money had at no time been in my personal possession and not at my disposal.

 

This alleged debt is therefore Statute barred and no payment will be made as the account became statute barred in 2012.

 

This communication is NOT an admission of any liability to 1ST Credit Ltd.

[daviscup]

Wow this is great, thanks very much for taking to time to do this for me. I will send this off tomorrow & respond once I have a reply.

 

Again thanks very much:-D

[daviscup]

Hi again, I have received a response from 1stcredit, below the letter.

 

Thank your for the response dated 15 July 2013

 

As we have previously advised you we do not consider this account is statue barred and enclose copy of statement for this account to demonstrate this,

in addition, I have highlighted your last payment which was received by our client on 10th November 2008.

 

I suggest you take free independant legal advise.

 

Ok so what do you think my next step should be?

 

Any advise would be appreciated x

[BRIGADIER2JCS]

This was not a personal payment mad by you personally and this payment should have been made to you by cheque so that you could decide what use it should be put.

 

The reply CAN be refuted on these grounds.

[Peterbard]

This was not a personal payment mad by you personally and this payment should have been made to you by cheque so that you could decide what use it should be put.

 

The reply CAN be refuted on these grounds.

 

Do we have any authority on this view ?

[daviscup]

Thanks again Bridadier2jcs, I will contact them again & see what the response is, I expect the same nonsense.

 

As Dodgeball mentioned I would like to have seen an example of this being the case before, especially in court as I suspect thats were I will have to fight this...

 

I will keep everyone posted on the response.

[Peterbard]

Thanks again Bridadier2jcs, I will contact them again & see what the response is, I expect the same nonsense.

 

As Dodgeball mentioned I would like to have seen an example of this being the case before, especially in court as I suspect thats were I will have to fight this...

 

I will keep everyone posted on the response.

 

Yes please do,

I have been looking around and cannot see any case law, which may be a good thing and mean that creditors do not push enforcement when in this position,

I cannot believe that this has not happened before.

 

Should it go to court there are also other arguments you can use in addition to the one mentioned earlier.

[BRIGADIER2JCS]

Do we have any authority on this view ?

 

Whose we??

[BRIGADIER2JCS]

Thanks again Bridadier2jcs, I will contact them again & see what the response is, I expect the same nonsense.

 

As Dodgeball mentioned I would like to have seen an example of this being the case before, especially in court as I suspect thats were I will have to fight this...

 

I will keep everyone posted on the response.

 

I would advise the following to 1ST Credit addressed to the employee that wrote the letter in reply to the SB claim.

 

Ref: use theirs:

 

Sir/ Madam,

 

I refer to a letter from 1ST Credit Dated xx.xx.xxxx, regarding the statute barred debt.1ST Credits position that I made a payment to this account on 10/11/2008 is refuted.

I did not personally make any payment to the account nor did I authorises any 3rd Party to pay funds into the account, had the original creditor acted properly in this matter the funds issued as a gesture of goodwill would have been paid to me directly and I most certainly would not have paid said funds into the statute barred account.

 

The creditor WAS NOT MY AUTHORISED AGENT IN THIS MATTER.

 

Therefore I consider the account is statute barred and I will not make any payment or offer of payment in regard to a statute barred debt.

[Peterbard]

I would advise the following to 1ST Credit addressed to the employee that wrote the letter in reply to the SB claim.

 

Ref: use theirs:

 

Sir/ Madam,

 

I refer to a letter from 1ST Credit Dated xx.xx.xxxx, regarding the statute barred debt.1ST Credits position that I made a payment to this account on 10/11/2008 is refuted.

I did not personally make any payment to the account nor did I authorises any 3rd Party to pay funds into the account, had the original creditor acted properly in this matter the funds issued as a gesture of goodwill would have been paid to me directly and I most certainly would not have paid said funds into the statute barred account.

 

The creditor WAS NOT MY AUTHORISED AGENT IN THIS MATTER.

 

Therefore I consider the account is statute barred and I will not make any payment or offer of payment in regard to a statute barred debt.

 

Brigadier what is meant, is does anyone have any authority, by authority I mean case law , beyond that I am not willing to explain.

 

The letter seems to dispute the creditors right of offset, this is well established sadly and deflects from the argument about the statute barr.

 

Sending letters at this point is premature anyway IMO

[Zonker]

http://www.legislation.gov.uk/ukpga/1973/52

 

The Scottish limitation act that's relevant ,

 

Part 1 6(1)(b)

 

'without the subsistence of the obligation having been relevantly acknowledged, '

 

Basically as he personally didn't make the payment or instructed payment on his behalf he has not acknowledged the debt by a 3rd party paying amounts towards it.

 

In real world terms it means a 3rd party can make a payment on your debt but it wont count as you acknowledging the debt...the phantom £1 entries we hear from DCA's is an example.

Relevantly acknowledged is a payment made by you or a written confirmation that it is your debt.

 

Another observation is that the debt is also 'extinguished' after 5 years of no relevant acknowledgement. That is to say the debt no longer exists which is different from other parts of the UK where the debt still exists but is unenforceable.

 

*edit*

From OFT debt collection practices

http://www.oft.gov.uk/shared_oft/consultations/OFT664Rev_Debt_collection_g1.pdf

 

However, in Scotland, statute barred debt is 'extinguished' and is consequently no longer recoverable.

 

A relevant acknowledgement will normally be made by performance of the debtor (or his representative). For example, by making payments or by making an unequivocal written admission clearly acknowledging that the obligation still subsists.

 

I think if OFT includes it in their guidelines the law is pretty well clear cut and no case law is required.

Edited July 24, 2013 by Zonker
adding oft guidance

[BRIGADIER2JCS]

Obsession with case law, often leads those obsessed quoting said case when they have no knowledge of the relevance if any to the case in question.

[Peterbard]

Obsession with case law, often leads those obsessed quoting said case when they have no knowledge of the relevance if any to the case in question.

 

This is just uneducated nonsense and not deserving of further comment

 

The part for the act is interesting, and I think gives the real reason why this would be safe from prosecution,

the act says the substance of the debt, the claim for PPI does not acknowledge the debt it just acknowledges the agreement.

 

Secondly the repayments to the account are added retrospectively,

the account according to the FOS has to be restructured to a condition it would have been in if paymeent for the PPI had not been made.

 

I shall continue looking for relevant case law for you.

[BRIGADIER2JCS]

The agreement allegedly to pay for PPI only.

[BRIGADIER2JCS]

Obsession with case law, often leads those obsessed quoting said case when they have no knowledge of the relevance if any to the case in question.[/quote

 

This is just uneducated nonsense and not deserving of further comment

 

The part for the act is interesting, and I think gives the real reason why this would be safe from prosecution, the act says the substance of the debt, the claim for PPI does not acknowledge the debt it just acknowledges the agreement.

 

Secondly the repayments to the account are added retrospectively, the account according to the FOS has to be restructured to a condition it would have been in if paymeent for the PPI had not been made.

 

I shall continue looking for relevant case law for you.

 

I see stoop once again to personal abuse when your 'theories' are challenged!

 

292

[Peterbard]

 

I see stoop once again to personal abuse when your 'theories' are challenged!

 

 

The use of common(case law) in determining liability in court proceedings is not a theory Brigadier.

 

I am sorry if you feel I am being abusive but you should really read some information,

and gain some knowledge of basic procedures in law, off this forum before you advise people.

[Zonker]

to help you out again , 10 (1) (a) of the act

 

'that there has been such performance by or on behalf of the debtor towards implement of the obligation as clearly indicates that the obligation still subsists'

 

Real world speak:

 

debtor pays something or instructs another to pay on his behalf.

 

There is a 'bible' for private Scotland Law called Gloag and Henderson: The Law of Scotland . Alas it costs nearer £200.

[Peterbard]

to help you out again , 10 (1) (a) of the act

 

'that there has been such performance by or on behalf of the debtor towards implement of the obligation as clearly indicates that the obligation still subsists'

 

Real world speak:

 

debtor pays something or instructs another to pay on his behalf.

 

There is a 'bible' for private Scotland Law called Gloag and Henderson: The Law of Scotland . Alas it costs nearer £200.

 

Thanks for this "authority", it would seem that payment by a third party is acceptable,

 

however I still think that the way the restructuring of the payment from the beginning of the contact,

which is prescribed by the FoS rules on redress ,

would mean that the repayment were to be treated as never being made, rather than crediting the account.

 

I think that this is the real argument.

[BRIGADIER2JCS]

Payment BY an AUTHORISED 3rd Party, this EG payment was not ''authorised''.

Edited August 20, 2013 by ims21
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