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I much appreciate the advice you have provided me with and I will check out the case of the PRA Group v Reilly.
Your welcome Ron and you made me think, you may have a point about LILA’s, so thanks.
Everyday is a school day.
Thanks for the information. I am aware of Sheriff Reid’s comments in the Donnelly v RBS case especially the part on the 20 year prescription period. The Donnelly bankruptcy was done under a full administration and Protected Trust Deed a LILA sequestration has very different rules and regs. And yes I agree the legal issues are mind boggling!
I contacted The Accountant in Bankruptcy by email this morning asking if my creditor had made a claim during my sequestration and their reply was “We informed them of your sequestration, but cannot confirm if they made a formal claim or received any dividends” the reason for this is the data is not available due to the new data protection laws.
Reading between the lines I would say that they did not make a claim and therefore the 5 year prescription period still applies.
Anyway, thank you for your help and I will let you know how I get on in obtaining the PPI redress.
As you will know from your research both LILA and Full Adminsitration Bankruptcies are essentially the same, it’s just the eligibilty criteria for applying was different, as was how they were administered, with LILA being administered in a low cost way.
The crucial question is whether there was an ajudication. If your case was never transferred into the Full Administration Bankruptcy process, there won’t have been.
To be fair this is a fairly esoteric point, but you appear to have researched the matter thoroughly, So well done. I am sure the Creditors and their lawyers will have their arguments, so do let me know how you get on, I am interested in hearing.
One other point you may want to consider Ron, is a case Mike Dailly, from Govan Law Centre, was involved in: PRA Group v Reilly.
In that case the PRA Group were able to argue it was possible for the English Limitation period of 6 years to apply to a Consumer Credit debt owed by a Scottish Consumer. Again a Sheriff Reid decision.
I am just conscious your Trustee was not discharged until January 2014 and the 6 years would not be up to January 2020.
Most Consumer Credit contracts will have clauses that say the governing law of the contract is English Law, so worth checking.
This could be another obstacle the other parties throw down for you even if you are successful in arguing the 20 years doesn’t apply.
My sequestration was processed under the low Income Low Assets rules. The creditors were informed before making any claim that they would unlikely receive any dividends in the bankruptcy.
Consequently when the Trustee was discharged any adjudication/court order was ended with all the terms and conditions fulfilled. This ends the relevant claim and would force the creditors to make a new claim in a alternative civil procedure.
So I think that the obligation then reverts to the 5 year prescription period.
My point is at discharge of the trustee the adjudication which is analogous to a court order has been satisfied and all the obligations and requirements have been fulfilled.
Thanks for your comments.
I appreciate the point your making and would love to hear of any success you have on making it.
You may find it interesting to read, if you have not already, the decision of Sheriff Reid in Donnelly v RBS. In that decision Sheriff Reid gives a lengthy judgement and looks at this issue at length from paragraph 63 onwards.
There may be a case to be argued that if the creditors did not submit a claim, there could not have been an adjudication and, therefore, the 5 year role may still apply.
It’s a complex area of law and would really depend on what happened in your sequestration.
To be honest it’s probably out the scope of this blog, but thanks for raising the question. It’s an interesting one and would love to know the outcome.
I voluntarily went bankrupt using the Low Income, Low Asset (LILA) procedure in January 2013.
I and the trustee were discharged in January 2014.
Although I am debt free now any outstanding balances at the end of my bankruptcy are still there but unenforceable.
My question is can these debts be extinguished completely in Scotland after 5 years based on the statute of Barred debts?
You are correct, your discharge frees you from any liability for these debts, but technically they still exist.
You can no longer be pursued for them and as the Trustee is no longer in Office, having been discharged, there is no-one effectively collecting them.
However, as they have been part of a Sequestration, they are covered by the 20 year long prescription period, not the the 5 year period.
Where this may be important is where, say for example, there is a PPI refund for PPI that you took out prior to going bankrupt.
The Trustee may be notified of this by the Firm making the refund, and he may try and re-open your bankruptcy to return these funds to the creditors, as your debts still exist.
This is because the Trustee would have had an interest in them and that interest in them would have vested in him, even if he was not aware of it during your bankruptcy.
Alternatively, if the bank giving the refund was also a creditor in your bankruptcy, they may refuse to give you the refund and offset it against the debt (with interest) that was included in your bankruptcy.