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Everything posted by teaboy2

  1. The Harrison V Link is case law, though it didn't specifically mention section 40 of administration of justice act - though by going down such route you can use the Harrision V link judgement in your arguement, as for compensation will a breach of section 40 would allow you to claim under protection from harassment. Ghost their is no difference between criminal and/or civil harassment other than the satndard of proof. So i do believe you may be entitled to compensation under section 41 of AOJ but either way your certainly able to claim compensation under protection of harassment act. Anyway the point of this thread is to dicuss the definition of commercial practice under the CPUTR and whether they apply to the practices and methods used by DCA's and how it would effect a claim under section 40 or not. My view is that if they have acted in breach of section 26 of the CPUTR, or any part of Scedule 1 - Its clear to me that if they use unfair practices in breach of schedule 1 then persistent use of such unfair practices has to be a breach of section 40 AOJA, as an unfair practice can not be passed off as a fair commerical practice can it? Sectection 26 allows them to use persistent phone calls to the extent to enforce a contractual agreement, but theirs a difference between persistent and excessive, and section 26 does not allow for excessive phone calls to enforce a contractual obiligation - nor does it allow for a NON contractual party under (unless Named in the contract) to enforce (in my opinion) - And why should a non contractual party be allowed such rights to a contract they are not a named party too? Surely doing so opens up the consumer to be victims of abuse and puts the consumer at a considerable detriment. I do not believe that the AJOA applies solely to criminal cases either, as there is no difference between criminal and civil harassment other than the standard of proof.
  2. they called on the house phone not on my office phone so no recording, though i will look at forwarding calls to home phone to the company phone system as its online based so can be accessed in any location basically. I wasn't expecting the call but i put them in their place and followed it up with a letter before action with a section 10 notice under the DPA sent via email (reciept of which has been received confirming they have opened it). So if they report me for fraud when theirs no evidence of any fraud is simply an unenforceable and disputed debt, then i will sue for libel, harassment and blackmail (attempting to extort money form me by threatening me). I get the feeling these guys will do the same to losingmymind here, so we should help him/her prepare for it. Basically they think they can enforce an unenforcable debt that was also unlawfully terminated (no DN) by reporting the debt as being taken out fraudulently.
  3. Yes they would i believe, though i wouldn't put it past them to accidently intentionally leaving that info out. Just report them to the Information commissioners office they will investigate it. Has your wife complained to the court itself?
  4. Brigadier sorry if my post confuses you but i am simply posting it so people know what lenghs MMF will goto and so losingmymind knows what maybe ahead.
  5. Well well now MMF phone me at 8pm about the debt. Asking if i denie the debt, i said i not saying either way as the first date you gave me nothing had been paid in and on the 2nd date i do not know, because i do not have a statement for that date. (had to order the one for the 1st date so am not ordering another one). Anyway i told them its in dispute and unenforcable, they threatened to report it as fraud to the police, i said you can't, am not denying it or acknowledging it eitherway as i do not know if the money was paid, but what i do know is the agreement is unenforcable and there was no default notice either which also makes it uneforceable. They said it will be enforcecable by matching your IP, i said no it won't as the cca is not enforceable so it can not be enforced. If they report it to the police as fraud and the police visit me i will sue them for libel and making unfounded allegations on a disputed and unenforceable debt in and attempt to get payment. Oh and all this after i told them not to call me as per the telephone harassment letter. So will sue them for harassment to under the protection form harassment act 1997
  6. Yes - any false information provided to a 3rd party is libellous, and detrimental to the person. Although they maywell have ment to have sent it to the employer for the other person with the same name, they should have checked to make sure your other half was the person to whom the attachment of earnings was ment for. Are you certain they issued the CCJ on the other person and not your wife, have you check credit files to make sure? It maybe that they have not registered the CCJ on your file yet.
  7. Thanks for the link Ghost, but it would appear that it is all speculative and not confirmed, so its not clear as to whether debt collection practices used to collect debts come under commercial practices, or as to a clear meaning of the definitions of commercial practice. They refer to debt collection as after sales calls, when they are not after sales calls in my opinion but debt enforcement calls. So there is still alot of uncertainty about the definitions under the CPUTR - Though i will have a read through the entire documents at a later stage as i have only browsed through the parts relevant. P.s. Thanks DX from moving the posts in to there own discussion thread.
  8. I personally would make a complaint against the officer that gave you the warning on the grounds you were not responsible for the email nor do you have such an email account and as such the email needs to be investigated so the true offender can be found and dealt with appropriately. And also ask for a copy of the alleged email and details as to the senders IP address so you can present it in court since there is currently court proceedings ongoing and it is therefore relevant to the court case.
  9. Lol poor barnaby and ascent at MMF just do not get it do they. They chasing me for an alleged debt from early 2009 (prior to when i started my company) where the date they said i received it showed no such payment in my account and then the loan was one for 1 month but the agreement they sent was for 2 months with a second loan account created for the second month as result of extension in the 1st month, so basically the agreement is unenforceable as it is not the original executed agreement and half what they are after is in £12 charges for alleged failed debit payments which were processed without my permission for them to take such payments on such dates from my card Now they send emails offering reduced settlement, so sent them one back stating by direct reply: "Yeah and i told you lot that the debt is unenforceable plus the documents sent did not prove the debt was mine either. You are to stop sending me mailshots, and to cease and desist your actions to enforce this. Also i never gave you permission to process my data, so unless you stop now i will have no choice but to isssue you with a formal section 10 notice under the data protection act. Along with reporting you to the OFT and the ICO along with any other relevant body." This company doesn't have a clue about leglisation, i had to tell them the laws on default notices and how failure of such is unlawful rescission and as such can not be enforced. Just report them for harassment and to the oft an all relevant bodies.
  10. Report them to the OFT, ICO and trading standards, they are in breach of oft guidelines for requesting a signiture and/or forms of id. I would then send them a letter in response:- RE Account NO XXXXXXXX Thank you for your letter dated xx/xx/2009 in which you say that you will not comply with my subject access request dated xxx under the `Data Protection Act 1998 unless I provide you with a signature or proof of ID. There is no requirement under the Act that require a subject access request to be accompanied by a signature, and I am unable to accede to your request - However my request was accompanied by my signiture with crosses though it to protect it from being lifted to prevent misuse of my signiture. Further, I note that you have sent statements and correspondence containing sensitive private information to me at same address as given in my subject access request. If you are concerned that you are not corresponding with the correct person, then I wonder why you have not verified the information before. As you are aware, disclosing data without adequate checks of identity is contrary to the 7th principal of data protection, listed in schedule 1 of the Data protection Act 1998. The time to confirm my identity was before you sent your first threat letter. My request for a subject access request was made on xx/xx/2009 and the 40 days for your compliance expires on xx/xx/2009. I note that there is no provision that removes the requirements of the act to provide this information on time, even if you are unsure of my identity - Which given your previous corresponce it is clear that you are more than certain as to my identity Please now comply with your legal obligation without further delay. Note i most also point out that requesting a signiture or form of identification is in breach of OFT debt collection guidelines, i have therefore reported your actions to the OFT, and if you fail to produce my subject access request, i will also report you to the ICO, FOB and Trading Standards along with any relevant body or organisation that you are part of or are regulated by. Regards PRINT NAME, DO NOT SIGN.
  11. they have 12 + 2 days in order to produce the agreement after that they are in default of your request and can not enforce the debt, By the sounds of it their is no such agreement hence why the first DCA past it back. What they said over the phone was grossly misleading as they are required by law when sent a request and the £1 fee to produce a true copy of the agreement or reconstituted or microfinche. Since its over 10 years old then even if such agreement did exist (most banks only keep documents for 6 years) then it would likely be unenforcable in court anyway. So once its past the 14 days mark, sent this - http://www.consumeractiongroup.co.uk/forum/content.php?436-Failure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale. Then sit back and ignore them. Though if they continue to sent you demands for payments or call you report them to OFT, trading standards, ICO, Consumer Direct, FSA and FOB and to any other relevant body you can think off.
  12. well i did report the thread to the site team asking them to move all posts on the debate to a thread of their own, which will have brought VTR80's thread back to where it was prior to the debate, but looks like nothing has been done about it yet. Though am not going to respond futher on the debate until its in its own thread.
  13. I see where your coming from, but as a DCA is not directly connected to the promotion, sale or supply of a product to or from any debtors, i.e. not named in the contract as a party to it, then they have no legal right to operate it that regards to enforcing the terms contract under commercial practice as defined by the CPUTR which is stated below. Saying that they can is in my view the same as saying i can call other companies customers up demanding payment. “commercial practice” means any act, omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a commercial transaction (if any) in relation to a product; DCA's are not connected to the sale, supply or promotion of a product i might add. So i think the definition applies only to commercial practice used to sell, promote and supply products via cold calls, marketing and after sales calls - not debt collection were no selling, marketing, promotion or supply of a product is done by them. I think we need to ascertain what is ok as commercial practice and what is not, so i would say its ok to call 1 or 2 times week to ask that they make repayment to the creditor (not to DCA as they are not entitled to any monies under the contract) and not demand full payment, when a) it is clear or they have been inform by the debtor they can not afford it and/or b) the debtor already has a repayment plan with the creditor (in which case it would not be an ok commercial practice but deliberate harrassment) or c) they have been asked to communicate in writig only. so is commerical practice defined as demanding full payment, calling more then once each day for the same reason, threatening court action if person can not make a repayment or refuses etc - no i think that falls outside of what is defined as standard commercial practice but is deliberate harassment comitted knowingly by the DCA. As in such cases section 3a of section 40 does not in my opinion apply as their actions were not inline with commercial practice, unless harassment is now a commercial practice. So i do not belive they are connected under commercial practice defined by the CPUTR Also, the CPUTR would not apply if the person being harassed is not the debtor either as they are therefore not a consumer connected to the trader/creditor. Thats my view of it, so i think we both agree in some respect but just not on section 40 or the DCA being protected under the definition of commercial practices. If the definition included pursuing payment, then yes it would - but it doesn't say that under the definition. I will request the site team move all our posts regarding this issue from this thread so everyone will be free to debate this without hijacking this thread any further. As i think the definition of commercial practice defined in the CPUTR and whether it allows room for DCA's to operate the way they do and therefore not being in breach of section 40 is itself worthy of being debated.
  14. Ohh so now its personal insults, i have been saying what you have said about phone calls all along, you have just back tracked from saying that section 40 does not apply (even though its a criminal offence) and now say that the same applies under CPUTR but offers greater punishments which i agree it does, but if you are in breach of section 40 then your in breach of the CPUTR also. You were implying they were entitled to call the debtor as many times they wanted to as under section 26 they are were allowed to, where above your saying the opposite to what you were implying before. Either that our we have both misunderstood each other completely Yes there is more to the CPUTR than schedule 1 but it is section 26 of shedule 1 that is relevant to the argument here. As for my understanding of section 26, well it states in black and white that making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media are deemed as an unfair commerical practice, except in circumstances and to the extent justified to enforce a contractual obligation. Which a DCA is not a party to a contract and therefore have no right to enforce a contractual term and therefore can not make persistent unwanted telephone call, faxes and or emails. I would much rather have the DCA convicted for harassment as a result of section 40 administration of justice and convicted for use of unfair commercial practices amounting to harassment. Also when it comes to sec 40 the criminal justice act 1982 c48 section 35 applies in regards to ss 4 of section 40 AOJ, so the punishment for both is more or less the same. But id rather they be convicited for harassment so then damages can be claimed under the protection from harassment act 1997, which would be hard to claim if under unfair commercial practices under the CPUTR. Plus unlike with the CPUTR they would not have the due deligence defense for harassment. So the harassment leglisation is much more favourable for the debtor, then soley relying on the CPUTR which allows them the due diligence defence As for "The CPUTR doesnt 'allow' things' it disallows things." thats not the impression i got from your earlier post both in this thread or others, where you were clearly implying that under section 26 they were allowed to by execption of enforcing a contractual term to make excessive phone calls. Perhaps if you had been clearer from the start as to the view you posted in the qoutes above, then we would not have needed this debate. Though given what you have said, implied or stated in earlier posts, i do feel you have back tracked, though thats a matter of opinion. As for DPA, well if the person does not have permission to disclose your personal data then doing so without your permission is a breach of data protection act. And yes the DPA includes how data is obtained not just how it is held. Sechdule 1 Part 2 section 1 ss2 makes it clear the person providing the information is:- Subject to paragraph 2, for the purposes of the first principle data are to be treated as obtained fairly if they consist of information obtained from a person who—(a)is authorised by or under any enactment to supply it, or (b)is required to supply it by or under any enactment or by any convention or other instrument imposing an international obligation on the United Kingdom. So unless the data subject has given permission for his neighbour to provide them such data, then such method of obtaining of data is unlawful.
  15. well with respect to the OP he/she should tell his neighbour to, or the OP write to them him/herself, that if they call his nighbour again then they will be in breach of section 40 administration of justice as nothing under the CPUTR allows a company operating as a commercial practice to contact a 3rd party in attempt to enforce a debt owed by an other party, nor is it lawful to request personal details from a person not legally entitled to disclose such personal information.
  16. Another point is that inorder to not be inbreach of section 26 CPUTR, then they must show their actions were jusitified and only way they can do that is by proving the person they were contacting was the debtor, though still if the debtor has asked to for communication in writing only then the call will be deemed as unwanted as under section 26, and therefore a breach of section 40. Section 26 appears under the schedule 1 named Commercial practices which are in all circumstances considered unfair - thats should be a clue to you as to it being unfair to persistently make unwanted telephone, fax and emails. Their only defense for doing so is to justify there actions by proving the debt exists, that they had the right to enforce it, that the person they were calling was the alleged debtor, and that the calls were not execissive and that they were justified in calling the alleged debtor when they have already requested communication in writing only - if they fail on any one of those points then they are in breach of section 26. They would also have to show that the reason for each call was reasonable, i.e. asking for full payment is not in my view reasonable when you have already made it clear you can not afford it or when like alot of debtors they are already in a repayment plan with the creditor, and therefore such unwanted calls can not be jusitified or deemed as reasonable nor can calls when they are abusive of make threats of legal action which is very common in about 95% of cases. So yes section 40 does still apply. Only time it does not apply is if the reason for call was reasonable and justified and not made when already requested to communicate in writing only, which is what the telephone harassment letter requests.
  17. Theres nothing for me to debate with you, i know what the law is so i have no need to debate it with you, unless you want to continue to misinform people of the law in regards to section 40 of the AOJ. I have already stated that we should agree to disagree on this, plus i informed you previously in an other thread that the very point you have raised have already been debated on CAG and found that it does not mean section 40 no longer applies but simply strenghens its. Now i repeat my question that you did not answer - please point me to the legalisation which states that section 40 does not apply to debt collection? - If you can not answer that to back up your earlier claim then i suggest you do not reply to this post or anymore of my posts regarding the issue.
  18. well the following confirms what i said - http://news.roslingking.com/?p=391, though i can not find any case law on notice of assignment, but that maybe due to any such cases being more about other things than the assignment itself - so it would be interesting to see some case law.
  19. Make you mind up ghost, either it does or it doesnt apply - Personnally from my experience and knowledge, yes it does apply if they are not a contractual party or make excessive amounts of phones calls and it applies if they continue to call you when you have asked them not to but to communicate in writing only which is exactly what the telephone harassment letter does. Also please point me to the legalisation which states that section 40 does not apply to debt collection? Not even section 26 of the CPUTR says that.
  20. Response in red above, i suggest we just agree to disagree on the section 40 argument for the sake of the thread
  21. Geuss that settles it then from the first through posts i read in the linked thread.
  22. Well a registered letter as stated by the act, would in my opinion include both registered post and recorded delivery. But standard post is not as there is no prove of postage or delivery where as registered or recorded you do have such proof. It is the proof of postage/delivering that is important and what would be required when stricted to proof it was sent - either way though it must still be sent by the OC and not the DCA. Without such proof then a court would not beable to say one way or the other as to whether it was sent or not or recieved or not - hence why the act makes it clear it must be sent by registered post.
  23. You where arguing that as they were not in breach of section 26 of CPUTR then they were not in breach of section 40 AOJ and as such section section 40 no longer applied, as section 26 of CPUTR states they are entitled to make persistent (thought persistent and excessive are 2 different matters i.e. daily and more than once a day is excessive in my opinion, especially when as to communicate in writing only) phone calls to enforce a contract term. Sorry but you were either saying that or talking a of some unknown law not under section 26. so i can not see you saying anything but that am afraid, but i agree we should not go over it here in this thread.
  24. Err they not allowed full stop, section 55 DPA Unlawful obtaining etc. of personal data. it is unlawful to ask someone for another person personal data when they do not have the data holders (alleged debtor) permission to give such personal data. So they are committing an offence for trying to unlawfully obtain the data from someone that does not have the legal authority to disclose such data. Which i might add also puts them in breach of section 1.2 of OFT guidelines Not to mention 2.5 and 2.6J The Communications Act 2003 sets out the law for nusiance phone call's and DCA's cold calling neighbours is a nusinace phone call. Not to mention if they continue to call the neighbour then is is harassement under section 40 of the administration of justice act.
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