In the world of Australian finance and business, few topics are surrounded by as much myth and misconception as statute barred debts.

It’s crucial for both creditors and debtors to understand the reality behind these misconceptions to navigate the complexities of debt collection effectively.

The term “statute barred” refers to a legal provision embedded within the Australian legal framework. A debt becomes “statute barred” after a certain “limitation period” has passed, during which the creditor has not taken court action to recover the money. Once this period lapses, it’s generally not possible for creditors to reclaim the debt through court action.

In this article, we’re going to talk about statute barred debt and the common misconceptions or misunderstandings that we as debt collectors often hear.

Myths and Misconceptions of Statute Barred Debt

Navigating the realm of statute barred debts and debt collection can be challenging, especially with the myriad of misconceptions that exist. Many individuals and even businesses often operate under false assumptions, which can lead to unnecessary stress, financial losses, or missed opportunities. To clarify the landscape and empower both debtors and creditors with accurate information, let’s debunk some of the most prevalent myths:

Myth 1: Once a debt is old, it’s automatically non-recoverable.

Reality: Old debts can still be collected, especially if there has been an acknowledgment or payment towards the debt within the limitation period.

Myth 2: Any interaction with a debt collector resets the statute barred timer.

Reality: Only specific actions like making a payment or acknowledging the debt in writing might restart the limitation clock.

Myth 3: If a debt doesn’t appear on a credit report, it’s statute barred.

Reality: The absence of a debt on a credit report doesn’t necessarily indicate its statute barred status.

Myth 4: Statute barred means the debt is cancelled or written off.

Reality: The debt still exists, but the creditor is legally barred from pursuing court action to collect it.

Myth 5: If you ignore reminders or letters from a debt collection agency, the debt will automatically become statute barred after some time.

Reality: Ignoring communications from creditors or agencies doesn’t guarantee a debt becoming statute barred. The limitation period is based on various factors, including the last acknowledgment or payment.

Myth 6: Making a partial payment towards an old debt won’t affect its statute barred status.

Reality: Making a payment or even acknowledging the debt in certain ways can reset the limitation period, making it crucial for debtors to be cautious before making any commitments.

Myth 7: Creditors can’t contact you about a statute barred debt.

Reality: While they can’t enforce court action, creditors can still contact you or attempt to recover the debt through other means. However, they should not mislead you about your rights concerning the debt.

Myth 8: All debts have the same limitation period.

Reality: The limitation period can vary depending on the type of debt, jurisdiction, and specific circumstances. For instance, some debts in certain Australian states may have a different limitation period than others.

Australian Debt Collection Laws

Australia’s debt collection laws, primarily governed by the National Consumer Credit Protection Act 2009 (NCCP Act) and the Australian Consumer Law (ACL), establish a fair and transparent framework for both creditors and debtors. One of the most pivotal aspects of these laws is the concept of “statute barred” debts.

The general limitation period for most debts in Australia is six years. However, certain nuances exist. For instance:

• In South Australia, the limitation period for a simple contract debt is six years, but some specific types of debt might have different periods.
• Mortgage debts or secured loan debts often have a longer limitation period, sometimes up to 15 years.

It’s crucial to understand that the limitation period is not just about the age of the debt but is more specifically tied to the last activity or acknowledgment of the debt. Legal actions, written acknowledgments, or payments can all affect and potentially restart this limitation clock.

Rights of the Debtor

Every Australian debtor has a set of rights designed to protect them from unfair practices:

• Challenge the Legitimacy: Debtors have the right to request proof or validation of a debt, ensuring that the claimed amount is accurate and rightfully owed.
• Statute Barred Protection: If a debt is genuinely statute barred, debtors have the right to use it as a defense against legal actions aimed at debt recovery.
• Unfair Practices Protection: Debtors are protected from harassment, misleading information, or undue pressure from debt collectors. The Australian Competition and Consumer Commission (ACCC) and the Australian Securities and Investments Commission (ASIC) provide guidelines that collection agencies must follow.
• Privacy: Debt collectors cannot reveal information about the debtor’s situation without permission. This includes discussing the debt with family, friends, or employers.
• Seek Assistance: Debtors can approach financial counsellors, legal aid, or ombudsman services for advice and mediation if they believe a creditor or agency is acting unfairly.

Rights of the Creditor

While debtors have protections, creditors too have rights that allow them to recover what’s owed:

• Pursue Owed Amounts: Creditors have the right to contact debtors to seek repayment, provided they adhere to fair practices and avoid harassment.
• Engage Collection Agencies: If direct efforts fail, creditors can engage a debt collection agency to recover the debt. These agencies must operate within the bounds of the ACL and ACCC/ASIC guidelines.
• Legal Action: Before the expiration of the limitation period, creditors can initiate court proceedings against the debtor to recover the debt. This can lead to judgments that mandate repayment.
• Report to Credit Bureaus: Creditors can report unpaid debts to credit reporting agencies, which can impact the debtor’s credit score and borrowing capabilities.
• Recover Secured Debts: For debts tied to collateral, like mortgages, creditors have the right to take possession of and sell the asset if the debtor defaults on their obligations.

Practical Steps for Creditors

Businesses often face challenges when dealing with delinquent customers. To navigate this complex landscape and increase the likelihood of recovering debts, creditors, particularly businesses, should consider the following practical steps:

Clear Communication

Ensure that all terms and conditions related to payments, including interest rates, penalties, and due dates, are clearly communicated to the customer from the onset. Clarity can prevent misunderstandings later.

Maintain Detailed Records

Keep thorough and organised records of all transactions, communications, and actions related to the debt. This includes invoices, receipts, email exchanges, and notes from phone calls.

Such records can be pivotal if legal action becomes necessary.

Send Reminders

Before escalating to aggressive collection measures, send gentle reminders to customers. Often, a simple reminder can prompt payment without further conflict.

Offer Payment Plans

If a customer is experiencing genuine financial difficulties, consider offering a payment plan or negotiating a settlement.

This can facilitate a partial recovery and maintain a positive business relationship.

Engage a Collection Agency

If direct efforts are unfruitful, consider hiring a reputable debt collection agency, like us here at JMA Credit Control.

We can employ specialised techniques and have expertise in recovering debts while adhering to Australian Debt Collection Laws.

Understand Statute Barred Implications

Familiarise yourself with the limitation periods for debts. Avoid wasting resources trying to recover a debt that’s statute barred, but also be aware of actions that might reset the limitation clock.

Legal Action

For significant amounts or persistent non-payment even after debt collection agency efforts, consider taking legal action.

Engage with a legal expert to ensure you follow the correct procedures and improve the chances of a favourable court judgment.

Stay Updated with Regulations

Australian Debt Collection Laws evolve. Stay updated with any changes to ensure compliance and effective debt recovery strategies.

Protect Your Business Reputation

While it’s essential to recover owed amounts, always act fairly, ethically, and within legal bounds. Heavy-handed tactics can damage your business reputation.

Seek Financial Counseling or Mediation

If a debtor disputes the debt, consider mediation or counseling services. A neutral third-party can help reach an agreement beneficial to both sides.

Talk to JMA About Your Business Debt

Navigating the intricate world of statute barred and debt collection requires a mix of knowledge and prudence. Recognising myths from reality can save individuals stress and money, while creditors can operate within the bounds of the law.

The ever-evolving Australian financial landscape, combined with the variables that can affect personal financial situations, means that it’s more important than ever to stay informed and proactive.

Whether you’re looking to recover old debts, verify an alleged debt, or simply wish to understand your rights better, knowledge is your most potent weapon against misinformation.

Call JMA Credit Control on 1300 664 223 for support.