PRA (Scotland) Prescribed Debt

[KNNH74]

Hello,

new here!

I recently received a letter from PRA saying....hey we haven’t heard from you in a while and we have been given this address for you...

I have never had any contact with them.

They are chasing a debt which was for Barclaycard. The account was defaulted in December 2015.

I live in Scotland now and have done since May 2015, although was in England when first had the card. I went through a terrible mental health crisis which is when I moved back to Scotland.

I believe the debt becomes prescribed after 5 years in Scotland. So does this mean that the debt they are chasing for is no longer enforceable?

if so, what should I do next? Should O ignore the letter or respond with a template for statute barred (Scotland) letter?

Does it matter that I lived in England when took out card? Or does where I live now mean that Scottish law applies?

sorry for all questions.

I also have another letter from Hoist about an overdraft but I will cover that in another thread.

any advice gratefully received

[Joanna Connolly Solicitors]

Hello

When did you last make a payment to Barclaycard regardless of the Default date which you say was in December 2015. Barclaycard have a reputation for adding Defaults up to a year or two late.

I wouldn't send PRA any letter referring to the debt being Statute Barred until you're certain it is.

If their letter is mild then wait until or unless they send another one or two before taking any risks.

When was the Barclarcard opened (what year)?

It may makes sense to send a s78 CCA Request to PRA but not yet! You may live in a different legal jurisdiction but the Consumer Credit Act is still relevant.

Di

[KNNH74]

Hello,

thank you for your reply!

I believe it was opened in 2001. The last payment I think would have been April 2015 and after checking my credit report I can see the default logged as December 2015.

So should I wait for more letters?

I have been really getting my life back on track after a difficult time and I am now so anxious.

thank you again.

[KNNH74]

Hi Di,

sorry have just checked again and the Barclay card one is actually from Hoist Finance. Opened July 2001. Default date December 2015. Again think last payment was April 2015 as that is just before I moved back to Scotland to get support from family.

The other PRA one is for an overdraft with default date of December 2016. That account was originally a student account opened in 1997. It wasn’t an account I was using and there was a bit of money going in each month which just kept the overdraft under agreed limit but that money stopped I think which is when it must have defaulted. ?

thank you!

[Joanna Connolly Solicitors]

So have you received letters from both Hoist and PRA or only from PRA?

Di

[KNNH74]

Hi,

sorry if confused matters.

one from Hoist re Barclaycard (I believe this to now be prescribed under Scottish law?)

One from PRA re overdraft.

details above for both overdraft and credit card.

[Joanna Connolly Solicitors]

one from Hoist re Barclaycard (I believe this to now be prescribed under Scottish law?)

One from PRA re overdraft.

In which case you could send a s77-79 CCA Request to both Hoist and PRA to stall things for a little while until you are certain that both debts are Statute Barred.

Since you say neither are threatening you with legal proceedings it may make sense to hold off sending them until they do, to help time pass.

Di

[KNNH74]

Hello,

Thanks again for response. I will wait to see what comes through next rather than respond for now.

As noted I am pretty certain that the Barclaycard (Hoist) one in now prescribed under Scottish law. The other overdraft one (PRA) wouldn’t be till December of this year but I will wait for them to write again and take it from there.

many thanks!

[Jollyman1]

Hi

In relation to prescription do be aware that the governing law of any contract with Barclaycard needs to be taken into consideration. In the 2018 case of PRA Group (UK) Limited v Reilly from Glasgow Sheriff Court (roughly equivalent of County Court) the Sheriff (judge) found that because the original Barclaycard contract had a choice of law clause for English law that the English rules on prescription would apply, even though the contract was with a Scottish consumer. The relevant period was therefore 6 years rather than 5. You should be able to find out the governing law of the contract from any CCA documents that Hoist produce.

Link to the decision case referred to is below.

[Warwick65]

The above post is quite interesting and a good example of why you should not automatically send a Statute Barred letter. I agree with Di about not sending a SB letter at the moment, in fact I probably go further. I have never sent a SB letter and found all my creditors pretty much stopped sending letters after 6 ash years. You are however in good hands with Di so follow her advice rather than mine.

However if I received a letter of claim I would probably then send a few shots at them such as saying it was SB and also sending a CCA request - usually slows them down

[KNNH74]

Hello,

thank you for the replies.

It is good to know about the case re prescribed debt and barclaycard.

The debt which is now with PRA is for an overdraft and that will not yet be past the 5 year mark until December this year. I know overdrafts are a bit trickier.

Another question I have is regarding the letter before action. I know they have to send these in England but does this also apply in Scotland? I don’t want to end up with a CCJ because I ignore the letters and then don’t get a letter before action where I can then take further steps.

I am trying to put a little aside each month just in case but if the Hoist one is unenforceable then I have more to pay something towards the other.

I am kind of going round in circles as to what to do.

Going on what Di said I think I should wait and see what comes in the post next? The letters I received were pretty vague.

I will come back for more advice I think when the next letters come through.

really trying to get things all back on track with life.

thanks for all your help!

[Joanna Connolly Solicitors]

The debt which is now with PRA is for an overdraft and that will not yet be past the 5 year mark until December this year. I know overdrafts are a bit trickier.

Overdrafts should still be covered by the Consumer Credit Act as Jo explains here >

The claim against our clients in this case was for monies owing under a personal Current Account Overdraft. We lost at first instance before a District Judge in Peterborough County Court and appealed the decision before HHJ Walden-Smith sitting at Cambridge County Court.

The Appeal was successful yesterday. This is an important case because it confirms that consumers using the unenforceability provisions of the Consumer Credit Act 1974 can successfully defend claims for personal Current Account Overdrafts in court. In this instant case the Appeal court found the personal Current Account Overdraft agreement to be unenforceable pursuant to the Consumer Credit Act because of lack of evidence of compliance with the requirements of the OFT determination.

It was also accepted that Creditors must comply with S 78 Consumer Credit Act 1974 requests relating to personal Current Account Overdrafts, not just credit cards and loans. In this case the Appeal court did find that MFS Portfolio Ltd had complied with the S 78 Consumer Credit Act request. If they hadn’t complied with the statutory request then the personal Current Account Overdraft would have been unenforceable pursuant to s.78 (6) (a) Consumer Credit Act , which is contrary to the position creditors normally take.

Di

[KNNH74]

Hello,

Thank you!

I haven’t received anything further as yet but will see how things proceed.

It is really dragging me down as have fought so hard to get life back on track.

Very grateful for all responses!

[Joanna Connolly Solicitors]

It is really dragging me down as have fought so hard to get life back on track.

You have got your life back on track - don't let PRA derail you!

They took me to court and lost

Issuing a claim and winning in court are not the same thing as Jo explains here >

‘“RECONSTITUTED AGREEMENT” – IRREDEEMABLY UNENFORCEABLE”
“UNREDACTED DEEDS OF ASSIGNMENT – NO ASSIGNMENT PROVED”


So, held Recorder Bellamy in PRA Group (UK) Limited v Mayhew at Central London County Court on 22nd March 2017, at the end of a 3 day multi track trial, when dismissing PRA’s claim against our client.


Stale debts sued for on the back of 2 ‘reconstituted’ MBNA credit card agreements (May 1999 and October 2000) were held irredeemably unenforceable under CCA 1974. The evidence of an honest witness was preferred to that of so called “reconstituted agreements”.


After 3 days of close forensic examination of, and legal argument about, evidence and documents from both PRA and MBNA stating that our client’s specific debt had been assigned, the court held that no assignment had been proved.


Efforts, over many months, in earlier cases to force PRA into disclosure of un-redacted deeds and deep and sustained forensic challenge to the provenance of documents needed to prove regulatory compliance, finally drew back the veil. The reality behind bulk debt purchasing was revealed.


This decision shows that just saying an agreement is enforceable and producing a “reconstituted” copy does not prove that it is enforceable. Just saying an agreement has been assigned and producing a notice saying it has been assigned does not prove legal assignment.


Debt purchasers need to provide proof. If that means the pitifully few pence in the pound they pay for stale debts will increase because banks will now have to start keeping original evidence complying with regulatory consumer protection measures, it is hard to imagine many tears being shed, outside the City of London.

Di

[KNNH74]

? thank you.