Harassment claim

[meagain]

Long story short - I wrote to Aktiv telling them they have no right to collect anything from me, and that I'd dob them in for harassment if they didn't stop. All I got back from them was a copy of the OC's refusal to comply with a S10 notice, "I hope this makes our position clear to you".

 

I am now planning to file at Court (serving the documents myself, with a covering letter stating "I hope this makes my position clear to you"), and have drafted the following PoC, cobbled from various places. I am wondering if they are suitable:

 

IN THE AMBRIDGE COUNTY COURT

 

Between Claimant

MCMICHAEL ERVIN AGAIN

and Defendants

HSBC BANK PLC

AKTIV KAPITAL (UK) LTD

 

1.Defendant HSBC Bank plc shall herein be referred to as “the Bank”, and Defendant Aktiv Kapital (UK) Ltd. as “the Collectors”.

 

2.At various times between October 2006 and July 2007, the Bank issued the Claimant with several demands for payment, varying between £550 and £1650.

 

3.Many of these demands were issued under the alternative names of “Metropolitan Collection Services” (or “Metropolitan” or “MCS”) and “D G Solicitors”. It is alleged that these are both aliases of the Bank, and that the use of these multiple names to falsely imply escalation amount to an attempt at harassment contrary to s.40 Administration of Justice Act 1970 and Protection From Harassment Act 1997.

 

4.Both in its own name, and under the alias “Metropolitan Collection Services”, the Bank repeatedly attempted to contact the Claimant by telephone. Many of these calls were deliberately not answered, and on each occasion where a call was answered a verbal request was made that such calls cease. A written request was made on 9 March 2007 that the calls cease, which was ignored. It is alleged that the frequency of these calls, and the use of multiple aliases, amount to harassment contrary to the above and additionally to section 127 Communications Act 2000.

 

5.The Bank is a Data Controller within the meaning of the Data Protection Act 1998 and is responsible for the processing of data of which the Claimant is a Subject.

 

6.The Bank has recorded defamatory information with numerous Credit Reference Agencies (“the Agencies”), in respect of the amounts demanded, and additionally a “gone away” record. The Bank was served with notices under ss.10,12 Data Protection Act 1998 to remove these entries, and to cease and desist from further processing any personal data. To date, the Bank has yet to comply with these notices.

 

7.On 18 October 2006, the Claimant filed requests with the Bank (both in its own name and additionally under the alias “Metropolitan Collection Services”) pursuant to s.78 Consumer Credit Act 1974.

7.1.These requests fell into default on 3 November, and offences committed on 3 December. This default has not ever been rectified.

7.2.It is clearly stated in the Act that creditors are restrained from engaging in any attempt at collection while this default persists.

7.3.It is inferred from the inability to produce these agreements that proper notices of default of the form stipulated by the Act have not been served.

 

8.The Bank latterly instructed the Collectors to pursue the alleged balances.

 

9.The Collectors repeatedly attempted to contact the Claimant by telephone on behalf of the Bank, contrary to the formal notice issued on 7 March 2007. On 7 November 2007 the Collectors were referred by the Claimant both to this written notice, and the defaulted requests pursuant to the Consumer Credit Act 1974, and were instructed by the Claimant to cease and desist from any further attempts at contact. This notice was ignored, telephone calls resumed, and the Collectors are still attempting collection. It is alleged that this behaviour amounts to harassment contrary to s.40 Administration of Justice Act 1970 and the Protection From Harassment Act 1997.

 

10.The Collectors further claim to have lodged entries of default with the Agencies. The Claimant served a notice pursuant to ss.10,12 Data Protection Act 1998 to remove the entries and to cease and desist from processing data further. The Collectors have explicitly refused to comply with this notice.

 

11.The entries lodged with the Agencies are alleged to be inaccurate in the case of the defaults in that pursuant to the requirements of the Consumer Credit Act 1974 the Bank was unable to provide the agreements under which the alleged debt was owed or valid notices of default pursuant to and in the form prescribed by the Act.

 

12.The entries lodged with the Agencies are alleged to be inaccurate in the case of the “gone away” status in that such status implies that an alleged debtor has moved without providing a forwarding address. The Claimant moved temporarily in October 2006, and several items of correspondence were sent to the Bank showing this address, at least one of which attracted a response. The Bank therefore knowingly entered a “gone away” status with the Agencies while in full knowledge of the Claimant's address at the time, knowing this status to be inaccurate.

 

13.On xx xxx xxxx, the Claimant attended an interview for employment, during which the employer made it clear that background checks would be carried out, including (but not limited to) checks with the Agencies. On xx xxx xxxx, the Claimant was informed that despite an “impressive” performance at interview, in relation to skills and experience, the application had not been successful. The Claimant has no criminal record and a full category B driving licence with no endorsements, therefore it is alleged that the inaccurate and defamatory entries lodged with the Agencies were partly responsible for the failure of the Claimant to secure employment in that case, and in any other case where such checks are carried out.

13.1.The salary for this position was £xxxxx per annum. The Claimant believes this to be a low but nonetheless acceptable salary for a person of the qualification, skills, knowledge and experience possessed by him. The Claimant was a student prior to 15 June 2007, and contends that had he been working from that date would have been earning such a salary.

 

14.Accordingly, the Claimant claims:

14.1.the removal of all data lodged with the Agencies by the Bank and the Collectors in relation to the Claimant;

14.2.an order from this Court restraining the Defendants from making further entries with the Agencies in relation to the Claimant;

14.3.an order from this Court instructing the Defendants to cease and desist telephone contact with the Claimant;

14.4.an order from this Court instructing the Defendants to cease and desist from attempting to collect monies from the Claimant;

14.5.compensation for loss of earnings at a rate of £xxxx per annum (namely half the expected salary), effective from 15 June 2007.

 

The red parts are uncertain, and probably won't survive to the claim form. Otherwise, any thoughts?

[ThisVeryMoment]

Do you owe them any money?

 

Seems strange that you have not mentioned this.

[renegotiation]

I wouldn't dare comment, as i'm not qualified. However, this is just the sort of stuff I dream off. We need more templates, helping hands and bags of encouragement to assist Joe Bloggs in taking 'them' to court. They only understand the stick. Go and hit them hard meagain. When they have been 'hit' enough times they might take some notice!

[meagain]

Perhaps I should have put a big red flashing notice at the top saying "DON'T COPY THIS JUST YET!" One of my many concerns is that it backfires and I wind up with a CCJ for the balance when they counterclaim and "magically" produce the original documents in court.

[meols cop]

I think you would be hard pressed to prove your allegations written in red. The Bank and their agents would just say that you didnt get the job through the natural process of interview. You would probably have to call your prospective employers to Court and question them as to why you didnt get the job. Something I cannot see them being too keen to do.

[renegotiation]

Perhaps I should have put a big red flashing notice at the top saying "DON'T COPY THIS JUST YET!" One of my many concerns is that it backfires and I wind up with a CCJ for the balance when they counterclaim and "magically" produce the original documents in court.

 

They would have to produce it before court wouldn't they? And then you could just make an offer of payment which would stop you getting a CCJ? Is this right anyone?

[ScarletPimpernel]

This is very much the sort of thing I am thinking of doing with HSBC, who have recorded a default on my CRA files in respect of a credit card account which they have admitted in writing is unenforceable. Nonetheless, after their own efforts failed, they have now passed it to Capquest, who I have fecked off at the high port.

 

Recently I forced Robinson Way to remove another default originally recorded by HSBC - another unenforceable debt, this time sold to RW.

 

I am currently dealing with MCS on yet another matter, passed (internally) to them despite being quite clearly in dispute.

 

Anything that can show HSBC et al that they are not above the law and regulations must be a good thing.

[renegotiation]

'Recently I forced Robinson Way to remove another default originally recorded by HSBC - another unenforceable debt, this time sold to RW.'

 

 

 

Nice one. :D

 

We need to put these D.C.A.'s out of business and FORCE the original creditors to take resposibility for their lending. I think we should have a C.A.G. D.C.A. blacklist. Any D.C.A. on that list should be fought by any means possible. If they have bought the debt outright, then tough. No morality here. Learn to behave how the O.F.T., statute books etc. say you should, not in a way that C.A.G. has dreamt up! What debts haven't been bought can be passed back to the original creditors. If it is deemed that any D.C.A.'s are behaving properly they can be removed from the C.A.G. blacklist. Lobbying by other means should still continue to take place to have them shut down though. Am I talking complete nonsense here???

 

P.S. Are there any that wouldn't currently be on the list?

[42man]

I am absolutely with you on this one as I have experienced very similar harrassment....I was told yesterday by the HSBC bank that they are allowed to call up to 4 times a day....despite speaking to one of their operatives for 15 minutes yesterday about my situation (disputed charges etc).....they called me 1.5 hours later without any knowledge of the call made by them earlier....!!! watching this one closely meagain...good luck...

[ScarletPimpernel]

I was told yesterday by the HSBC bank that they are allowed to call up to 4 times a day

 

 

Ask them upon which statute law, or regulatory rule they base their contention, and they cannot answer - unsurprisingly, because it's a myth, though variations of it are a widely held view in the debt industry.

 

When I challenged HSBC on this, one of their call centre managers (i.e. allowed a pencil rather than crayons), told me that they were allowed to do this because it is their company policy; he thought that this took precedence over everything else. Mind you, in the strange world of HSBC, writing a letter which clearly states: "I can confirm that your telephone number has been removed from our systems", actually means that they will call you a further 30 times over 5 days, and then, when accused of lying and harassment shrug it off by saying that their system is automated, and because I logged the calls rather than answer them, it isn't harassment. I don't understand the logic of their reply, but they won't discuss it further. Their attitude doesn't surprise me; deceit, misleading answers and a complete lack of insight into their own errors seem to be routine for a company that has claimed on no fewer than 6 occasions that the reason for failing to respond to letters is that they did not receive them, despite having signed for them.

[rosierose]

Long story short - I wrote to Aktiv telling them they have no right to collect anything from me, and that I'd dob them in for harassment if they didn't stop. All I got back from them was a copy of the OC's refusal to comply with a S10 notice, "I hope this makes our position clear to you".

 

I am now planning to file at Court (serving the documents myself, with a covering letter stating "I hope this makes my position clear to you"), and have drafted the following PoC, cobbled from various places. I am wondering if they are suitable:

 

The red parts are uncertain, and probably won't survive to the claim form. Otherwise, any thoughts?

 

 

Hello!

 

This is something dear to my own heart and I have had to undertake a fair deal of research to get to the point that I am now at with another high street bank.

 

Couple of things…

 

With regard to your POC. I would add exactly which sections of which statutes you wish to claim under - eg the restraining order would be under s3 of the PfHA 1997

 

I’m fairly sure that the loss of earnings should be provable with an affidavit from the would-be employer – or an S.A.R - (Subject Access Request) should they prove unwilling?

 

What I’m not quite sure about is whether the default markers were logged after the bank defaulted on the agreement request. If so then it could be argued, as mentioned elsewhere on the board that such would amount to an unlawful recession of contract (Woodchester Lease Management Services Ltd v Swain & Co [1999] 1 WLR 263), with damages for damage to reputation possibly being evinced citing Kpohraror v Woolwich Building Society - 1996 4 All ER 1192.

 

On a more general note re telephone harassment - We know the OFT regards contacting debtors too frequently to be oppressive which one of the determining factors in the definition of harassment under s1 of the PfHA. But what is the "too frequently" figure? The CAB put it at three times a week - but, so far as I’m aware, there's nothing in the records of the higher courts to give guidance to a DJ. I seem to recall someone here actually brought proceedings for phone harassment and won (a token amount), so if anyone can recall who I’m sure it would be of help - to me as well as you.

 

 

One more thing - IMO it would be multi-tracked

[42man]

These are just 2 high profile harrassment cases....

 

Mother sues bank for harassment in landmark legal action | the Daily Mail

 

And this one....

 

Cancer patient sues the Halifax for harassment after 762 calls about loan - Times Online

[rosierose]

Well, they are claims, as you say, but I don't think either were actually heard.

 

The Plymouth lady settled (for a reputed 7K, though this has been denied in a conversation I had with a senior HBOS lawyer, ) and the later case was IIRC an injunction only.

 

When you delve into the actual records there are none that have made it to the CoA, and I don't know whether any have made it to the HC. All we know at one has been heard in the CC.

 

Nothing there, that I know of, that would bind a DJ.

[renegotiation]

 

 

Hello!

 

This is something dear to my own heart and I have had to undertake a fair deal of research to get to the point that I am now at with another high street bank.

 

Couple of things…

 

With regard to your POC. I would add exactly which sections of which statutes you wish to claim under - eg the restraining order would be under s3 of the PfHA 1997

 

I’m fairly sure that the loss of earnings should be provable with an affidavit from the would-be employer – or an S.A.R - (Subject Access Request) should they prove unwilling?

 

What I’m not quite sure about is whether the default markers were logged after the bank defaulted on the agreement request. If so then it could be argued, as mentioned elsewhere on the board that such would amount to an unlawful recession of contract (Woodchester Lease Management Services Ltd v Swain & Co [1999] 1 WLR 263), with damages for damage to reputation possibly being evinced citing Kpohraror v Woolwich Building Society - 1996 4 All ER 1192.

 

On a more general note re telephone harassment - We know the OFT regards contacting debtors too frequently to be oppressive which one of the determining factors in the definition of harassment under s1 of the PfHA. But what is the "too frequently" figure? The CAB put it at three times a week - but, so far as I’m aware, there's nothing in the records of the higher courts to give guidance to a DJ. I seem to recall someone here actually brought proceedings for phone harassment and won (a token amount), so if anyone can recall who I’m sure it would be of help - to me as well as you.

 

 

One more thing - IMO it would be multi-tracked

 

 

Regardless of what the definition of harassment actually is, if someone formally requests in writing that they don't wish to be phoned any more (even once) then that should be that right? Black and white? That's how I saw it. Someone please just clarify this for me.

[rosierose]

Regardless of what the definition of harassment actually is, if someone formally requests in writing that they don't wish to be phoned any more (even once) then that should be that right? Black and white? That's how I saw it. Someone please just clarify this for me.

 

I agree whole-heartedly with your feelings, but Meagain is considering bringing an action to, amongst other things, gain a court order under section 3 of the PfHA precluding contact from a creditor whom Meagain feels is harassing. In order to do that it would be necessary to prove that the creditor's actions could, in the balance of probabilities, be deemed as harassment as defined under section 1 of that Act.

 

When you read the act the definition is wide, but recent cases, in the opinion of some legal commentators have narrowed it somewhat. I disagree with that interpretation. See Conn v Sunderland City Council.

 

Ultimately, law in this country is, so far as I know, often not always matter of black and white allowing for many shades of grey, particularly with something like harassment where context is a consideration. So when bringing an action its best to get a bit of precedent behind you. The point of my post was to illustrate that there isn't much, to my knowledge, and I have searched long and hard.

 

Interestingly though, one member has recently been awarded "substantial compensation" from the FOS for just such a situation.

[42man]

Is there a link to that Rosie ?

[rosierose]

This is it

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/102011-blair-oliver-scott-bank-7.html#post1264469

[renegotiation]

I thought there was some law to do with data and how you wished to be contacted. Maybe I got confused.

[Yyates]

We need to put these D.C.A.'s out of business and FORCE the original creditors to take resposibility for their lending. I think we should have a C.A.G. D.C.A. blacklist. Any D.C.A. on that list should be fought by any means possible. If they have bought the debt outright, then tough. No morality here. Learn to behave how the O.F.T., statute books etc. say you should, not in a way that C.A.G. has dreamt up! What debts haven't been bought can be passed back to the original creditors. If it is deemed that any D.C.A.'s are behaving properly they can be removed from the C.A.G. blacklist. Lobbying by other means should still continue to take place to have them shut down though. Am I talking complete nonsense here???

 

P.S. Are there any that wouldn't currently be on the list?

What a wonderful thought, if only (sigh)

[renegotiation]

Some of them have inhouse collectors anyway. Just force them to use inhouse collectors and force them to bear the company name that everyone knows. Is it impossible to achieve this goal?

[meagain]

IIRC, "Metropolitan Collection Services" and "D G Solicitors" are both HSBC in-house operations. As for proving harassment, it should be fairly trivial to demonstrate this - if a written order to cease telephone contact has been made, then the required number of telephone calls to constitute telephone harassment is two (allow one to verbally inform them).

 

I wrote to Aktiv almost two months ago - it took them over a month to respond. My last letter to HSBC was to their D G Solicitors alias back in March, instructing them to stop this very sort of thing, so I could argue that they have had plenty of notice of this issue, and that if Aktiv weren't keeping them informed about this correspondence then it would be a failing between HSBC and Aktiv, not me.