Burden of proof for DCA to provide evidence of payment when debt is claimed to be statue barred

[Fluviomarine]

My first post, and not a very cogent one at that! (I realise I should have taken more time to write a shorter thread, but I've got a sense of urgency here.) Anyway, let me test the waters. I know there is a sea of already very useful, probably germane (if gloriously painstaking) information on the theme out here. So let me get to the meat on the hook of the matter, up front, and deposit some background info for - and I use the term advisedly, if not with some pride - any bottom feeders. With any luck, things will go swimmingly . . .

 

Thanks in advance to those of you who take the time to read this and who think it worthy enough to reply to. (Apologies, too, for droning on tedioulsy about what appears to be such a common, if sadly taxing, phenomenon.)

 

The meat on the hook of the matter is . . .

 

In response to a demand, from a DCA, for payment of a 9-year-old debt that the DCA attributes to me, I sent a letter claiming that as far as I was concerned any such debt, whether mine or not, would be statue-barred and that unless they could provide evidence of payment or written contact for me in the relevant period they wouldn't be able to take court action, redering the collection of the debt unenforceable. The DCA responded and claimed that I'd acknowledged the debt within the 6-year period with a payment on such and such a date and therefore the debt is not statute barred.

 

Irrespective of the wobbly start to this (I already realise the errors of my ways and that at least I should not have claimed the debt was statue barred as, I imagine, a sharper-toothed creature might have been able to take it as an admission of owing the debt?), my question is:

 

Saying that a payment was made on the debt and providing evidence that a payment was made by me on the debt are two different kettles of fish - what should I expect the DCA to provide, or what should I insist they provide, as evidence?

 

 

And lastly, the preamble. . . (Well, this is an old story, isn't it?)

 

Out of the (ocean) blue, Cabot Financial (Europe) Limited sent a letter addressed to me claiming that it would be calling on such and such a date (let's call it recently). As you'd expect, there was no introduction, no explanation of what the letter was about, in fact, no information on the letter whatsoever — besides my last name and address — to show how it related to me in any way. They were fishing — and I took the bait.

 

I picked up my mobile phone, called, quoted the reference number given on the letter and heard what they had to say — much to my regret and dismay, as I should have known better (but never mind!).

 

In any event, here begins the odyssey:

 

• The DCA claimed I owed it a debt for for under £300 on/for a Barclay's account opened in 1998 and closed in 1999. (Yes, nine years ago.)
  
• I acknowledged that I used to have a Barclay's account but that I had no knowledge, written down or otherwise, of any outstanding debt. The DCA ignored this and pressed for an immediate payment to stop further action. (Action?)
  
• Unfluttered, I stated that my credit files have not shown that I owed or owe any outstanding debt to Barclay's or to a company called . . . Cabot (quelle surprise!), to which Cabot admitted that the debt would have been removed from any credit history after six years. Again, I was told, only a full payment now would resolve the matter once and for all.
  
• Still unfazed, I asked Cabot how it came across my name and address for this debt. Cabot would only admit that it acquired the debt in November of 2006 (7 years after the fact, note) and that it had sent me a previous letter (which I never received). Again, Cabot pressed for payment, which I continued to ignore. Instead, I said that I'd never received a written communication from Cabot before today — ever — which was true. Cabot suggested that I might have changed addresses. I responded that most people change addresses, many times in fact, over the years, but who's to say how many times in nine years? (Nevertheless, Cabot's saying they sent me a letter doesn't mean they did send me one. Cabot would not confirm where they sent the letter.)
  
• Cabot pressed for payment again. I said I would definitely not pay anything to Cabot for a debt I knew nothing about, that I wanted to find out what was fact and what was fiction and that I would like Cabot to make a note of such in its records.
  
• Cabot responded that it would hold the account for a week, stop calling me and allow me to establish that I owed the debt (how considerate); but that unless I paid the debt, Cabot would continue to press for payment. It could legally call me up to 6 times a day, I was told.
  
• At that last comment, a junk-yard dog deep down in my gut bore its teeth: I stated that if it could LEGALLY call me 6 times a day, then I would LEGALLY consider my options. I put the phone down.
  
• The next day I sent a letter to Cabot, special delivery, stating that as far as I was concerned the debt was/is stature barred. (Why bother asking Cabot to show me what it has on record, where it got its info from or from whom, whether or not the debt is valid, etc., IF the debt is legally out of bounds?) I stipulated that unless Cabot could provide evidence that I'd contacted it in writing or made any payment in the relevant period, the debt was legally unenforceable. I asked Cabot to confirm this and not to contact me again except to confirm this — and by letter only.
  
• Cabot has since written to me to inform me that the debt was acknowledged by me through a payment of £20 made in 2003 (a "fact" that was not shared with me in my first call with them), and therefore the limitation period runs from that date. It asked me to call to make repayment arrangements.
  

That's the bare bones of it, and I'm now miffed and prepared to drag them out of their fishing expedition. My next move will be to write to Cabot and tell it that its saying I made a payment and its providing evidence I made a payment (as I urged it to do) are not the same things... And so I ask you to look at The meat on the hook of the matter above.

Edited June 25, 2008 by Fluviomarine
Typos, syntax and sundry solecisms...

[babybear39]

Hi and welcome to CAG,

 

Cabot HAVE to prove YOU made the payment, simple as

[42man]

I would send them a letter asking them to prove that you made this payment, and state that if you believe fraud is involved you will have no hesitation in calling the police. also state that you believe that Barclays could owe you well in excess of £600 in excess charges and that you will now start pursuing Cabot for these. Also ask them for a copy of your Consumer Credit Agreement (this will cost you £1 (postal order), and say that if they want to instigate legal action then you will be making a full request for documentation under the Civil Procedure Rules. Also state that any calls made to you will be regarded as harrassment and treated as such - all correspondence will be in writing only.

[42man]

Oh yes and tell them you will be charging them £35 for every time you write to them - and DO IT !!

[Fluviomarine]

babybear39 and 42man, many thanks for your swift responses. (I'm feeling better already...)

[Fluviomarine]

For the record (feel free to intercept/interject at any point)...

 

* As I am taking a statue-barred approach (regardless of who owes the debt), I think the imperative here is — as babybear39 and 42man have said — that Cabot PROVE I made the payment they say I made. I will invite them to do so. (Just what form that proof will take and how I can establish if it is valid and legally tenable is beyond me — does anyone know?) I will add that if I have any reason to suspect that fraud is involved in any way I will inform the police.

 

* I will then reiterate that I do not acknowledge the debt (they keep referring to it as mine without any substantiation — remember, I have nothing on this matter, not even old account statements).

 

* I will repeat that unless they can prove it as per S. 5 of the Limitation Act I maintain that it is statute-barred and therefore unactionable (and unrecoverable). And I will add that if they persist in making unsubstantiated claims and/or further press for payment contray to the Administration of Justice Act 1970, that I will report Cabot to the appropriate legal and regulatory authorities.

 

* I will then remind them that I told them I would not deal with Cabot over the phone and, to make things clear once and for all, I will ask them not to make any more calls and remove my number from their systems. Any more calls will be regarded and treated as harrassment () and * I will remind them that persisting to call after a request from me not to call may constitute a criminal offence under S. 127 of the Communications Act 2003 and I will report Cabot to the OFT and Trading Standards, with times, frequency and content (they leave pointless messages on my answer phone when clearly no one but my answering services is answering — "Hello? Hello? Hello?" Doh!).

 

* I will then sign off telling them I consder the matter closed unless they provide me with that evidence (is there a time limit I could/should impose?)

 

The rest - pursuing damages or excess charges or whatever, including the CCA request and obtaining full account info, etc. - I will, like the proverbial bigger stick, hold behind my dorsal fin. I want to see what they will come up with.

 

Sound reasonable?

 

(Once again, thanks for any feedback. I will keep posting until I get to the end of this canard.)

Edited June 25, 2008 by Fluviomarine
Typos, syntax and sundry solecisms.

[babybear39]

7 - 14 days is the usual

[sequenci]

Just a little note that might be of help here:

 

Once a limitation argument has been raised, the burden of proof is on the creditor to prove that the debt isn't statute barred.

 

London Congregation Union Inc v Harriss and Harriss [1988] 1 All ER 15, CA at 13.3)

[gni03349]

Good luck Fluvio... subbing to this thread

[Fluviomarine]

Thank you, sequenci. Good to know, I think. I wouldn't help Cabot by reminding them (like they don't know!). But, for my benefit, in this case would the creditor be the bank in question or the DCA taking up the debt on that bank's behalf? Or both?

[BeauBrummie]

Subbing,

 

One for the Cabot Fan club me thinks.

 

BB

[gni03349]

Can't be sure, but the bank probably sold the debt to Cabot, and now it's up to them to TRY and squeeze money from you, but of course, we know that isn't going to happen now, don't we? It's just a shame it's allowed to happen at all, because there must be no end of people who don't know about statute-barred, and then pay up!

[Fluviomarine]

Quite possibly, BeauBrummie.

But my concern here is that the DCA (in this case it happens to be Cabot) has failed to provide evidence of payment or written contact from me in the relevant period under Section 5 of the Limitation Act after I invited them to do so. (A clear-cut case would be a clear-cut case, no? I suspect they have nothing - at least nothing legally tenable - on me.) Instead, the DCA wrote back to tell me that, no, I did acknoweldge the debt way back when with a payment - and that was that. I think this rather important for statute-barred claims: the burden of proof is an important, I dare say decisive, factor in the process, whatever the particulars of the case.

(Ta for the update, gni03349, and for the well wishing.)

[Fluviomarine]

Indeed, gni03349. (And no, we won't.... )

 

Will pick up on this shortly. I will keep you all posted. Thanks again to one and all.

[sequenci]

The burden of proof is 100% down to Cabot.

[ODC]

Its a well known fact that DCAs 'make' a payment to extend the life of an alleged debt. Usually its a nominal sum of £5 or so.

 

A well known company in Leeds tried this little game with me. Strangely enough the date they quoted for my payment was the same date the ALLEGED debt was sold. When asked for proof they were unwilling or unable to produce it. Not that it would have mattered because I could prove beyond any doubt that it would have been impossible to have made ANY such payment.

 

Not of course that a very reputable company like Cabot would do anything wrong or unlawful

 

 

 

Whooooooooops ther goes another flying pige over the two blue moons

[gni03349]

You're missing out ODC.. most sigs have how much money was returned... all your creditors just seem to want to run away from you.

[ODC]

You're missing out ODC.. most sigs have how much money was returned... all your creditors just seem to want to run away from you.

No money returned. These were not about excess Bank charges but more about UNENFORCABLE Debts the companies tried to chase.

[gni03349]

Aha.. ok... I'm sure if I look, I'll see over 6000 posts from you at least some of them being your episodes with these people. Well done anyway.

[babybear39]

Just wait a few more weeks to see my sig

[make them aktiv runners]

Unfluttered, I stated that my credit files have not shown that I owed or owe any outstanding debt to Barclay's or to a company called . . . Cabot (quelle surprise!) for that matter, to which "Cabot" admitted that the debt would have been removed from any credit history after six years. Again, only a full payment now would resolve the matter once and for all.

• Cabot has since written to me to inform me that the debt was acknowledged by me though a payment of £20 made in 2003 (a "fact" that was not shared with me in my first call with them) and therefore the limitation period runs from that date. It asked me to call to make repayment arrangements.
  

 

Credit file history is removed 6 years after the last payment. The fact that there is nothing on your credit file shows the debt is statute barred. NB, there are 3 credit reference agencies, you need to check the one that Barclaycard use.

[cashins]

NB, there are 3 credit reference agencies, you need to check the one that Barclaycard use.

 

Barclaycard usually show up on Equifax & Experian

 

David

[ODC]

All the CRAs are aligned with DCAs in what would appear to be some sort of incestuous relationship

[babybear39]

All the CRAs are aligned with DCAs in what would appear to be some sort of incestuous relationship

 

A mixture of incest and symbiosis I'd say Allegedly...

[Fluviomarine]

I have now posted my next letter to the DCA (Cabot), and am following my plan of action as set out in my last post. (You can catch a refresh below, if you're a glutton for punishment.) But I would like to bring something else up here. In my correspondence with the DCA in question a disturbing pattern has emerged - trickery or tainting with due process? You decide. (Note the order of events...)

 

1. First letter: going on a fishing expedition?

 

This DCA sends its first letter to me "out of the blue". It arrives at my home address, addressed to me, but the letter does not:

 

* introduce the DCA;

 

* relate why it has contacted me;

 

* inform me what it is about or in relation to;

 

* explain why it thinks this relates to me; or even

 

* invite me to contact the DCA to find out any of the above.

 

The only info on this letter besides DCA's letter head? My last name, an account number (claimed to be mine), a date it would be calling, a request to call if the time is inconvenient and then someone's name and (electronic) signature on the bottom.

 

2. I contact DCA by phone, a long exercise in futility and can you just here that money rolling in?

 

Though the DCA rep was courteous and soft-spoken, she explained the letter received was in relation to a debt with a Barclay's account opened in 1998 and closed in 1999. Persistent calls to pay the debt now (kerching) would ensure the account got settled, she said. I refused to pay anything on a phonecall and insisted that I would look into the matter, especially as I'm not aware of any debt and nothing has showed on my credit reports (I then checked them again after the call and still nothing showed). After much toing and froing ("you must pay", "I won't pay", "only a full payment now", "I won't pay anything now", etc.), the rep admitted the debt would have been wiped off my records after six years. (Kerching!) I end the conversation saying that I would look into the matter and, before I got off the phone, the rep agreed to make a note of this in the account (annoying as it made me feel that we were dealing) and would hold off pursuing for one week (kerching!). The rep stated, furthermore, that it was important I paid as they could call me, legally, up to 6 times a day (Kerching!). A junkyward dog deep down in my soul bore its teeth as I stated that I would be looking into the matter legally.

 

3. DCA renegs: not three days go by before I recieve another letter

 

Miffed that my week's grace had been eaten into, I found the next letter from the DCA, with the same lack of information in 1 above, this time stating that my name had been linked with this address (my home address) and that I should call immediately to speak with a rep about the account quoted - this before the agreed hold for a paltry week.

 

4. I strike: sending a letter claiming the debt is statute barred

 

Deciding not to muck around in particulars, as I have no info on the debt, its supposed creditor (Barclay's) or agent (the DCA, Cabot), I claim the debt to be statute barred. Why bother to hunt for info and toil with the DCA if the debt is legally out of bounds? Plus, there's nowt on my Experian or Equifax files and the account in question was closed in 1999, 7 years before DCA acquired the debt (in Nov 2006), by the DCA's own admission (over the phone). My statue-barred claim included the proviso for the DCA to offer evidence of payment or written communication from me in the relevant period.

 

5. "Hello, it's the DCA calling..." (A longer exercise in futility, this time with a minor exchange of words.)

 

A few days after I claim the letter is statute barred, I answer a phone call that interrupts my working day: hey, it's the DC-A! I give the account number, explain that I've sent a letter to deal with the matter, mention I don't want to hear from them over the phone as the account is statute barred (a mistake, I now realise: never give your reasons for anything over the phone - never discuss such matters over the phone, at all!) - the rep interrupts and claims the account is not statute barred. I ask why. He states that a payment was made on the account in 2003 (3 years before the DCA acquired the debt). Unfazed, I state it doesn't matter: I'm not paying anything. You have my letter and I'll await yours. I need proof of this paymet, after all. He claims he can provide such immediately: he'll print off a letter right now and, besides, that won't change anything as the debt is mine. He persists in selling me this "debt": "it's your debt", "you can't run from it", "it's not going to just disappear", "why claim its statute barred if its not statue barred", and on and on. I raise my voice (not necessarily a mistake if you don't let it faze you, I say ) and we tussle, verbally. Then I reach boiling point and ask him if he is a legal representative - is he a legal expert on debts? He says no but . . . I cut him off and say that in a minute I will put the phone down, and he continues to sell me this debt: "you are avoiding this debt" and "it won't go away just because you want it to . . . ". I then tell him that he has now hacked me off royally: if he had any professional decency, he would refrain from making any comments at all on what is now a legal matter, that he would make a note of my having sent a letter and my having told him as much and advise me that he will look into the matter. But he didn't, so I wasn't going to hang around. (Click.)

 

6. A week or so of telephone calls that lead me to believe my phone actually has a mind of its own...

 

Since my last communication with the DCA, I have received from it 3 to 4 calls a day, sometimes from an automated spokesdroid (I can't say "spokesperson" now, can I). I have ignored the phone, but the strangest of things happens: every call from the DCA results in a message on my mobile. At first, I thought they were mistakes: "Mr -----, hi this is ----- from. . . Hello? Hello? Hello?" Click. But it happened every time! Even when their spokesdriod called! This got me thinking. I'm sure that there's a bog standard personal answerphone greeting on my phone, but maybe . . . Well, who else thinks that their phone is jealously overriding the answering service and answering these calls behind our backs?

 

7. We'll do as we do-do and there's no doing anything about it!

 

The DCA's response to my not picking up the phone and my last letter was curt and so well thought out I couldn't find a single crack in it. It read (in effect): no, your account isn't statute barred, as you claim, because you made a payment on the account in 2003, within the past 6 years, so you owe the debt and you owe all interest on it since 2003, too; but you'd better call us now to make some repayment arrangements. (They'd not taken my proviso on board: to supply evidence I'd made tha payment they claim I'd made.) And then, two days latter . . .

 

9. "Welcome to Cabot" (Or, a slap on both sets of gills.)

 

I didn't only have their last "no, we say you owe the debt so pay or pay more" letter, but something more interesting besides: I got my first Cabot letter! Ok, it arrirved weeks (and more than a few letters behind) after it should have, but my welcome letter had everything: my full name, the account number, the debt, the creditor, who Cabot (Europe) was, who Cabot (UK) was, the reason why it/they were writing to me, alternate means of payment, a tone pitched as helpful and reassuring - the lot. I thought that I'd won a free fitness centre membership; that I'd earned access to a special club; that I'd made it into the annals . . . of the Cabot files. Wow. And only after a few weeks! And I still have not paid a single penny for the pleasure!

 

10. In the trouper's proverbial words: they don't 'cabout, do they?

 

Let's take odds on what their next response will include, shall we? How about . . . A Cabot ballpoint with a doodle pad? (For those idle moments on the phone, when they talk and we listen?) . . . A handsfree headset? (Why not have your hands free to do other things — nails, stir a pasta sauce, wave at the neighbours?) . . . A branded megaphone? (You could shout at the receiver while sitting in your chaise longue from the back of your garden?) . . . Lubrication?

 

Is it me, or its this process completely bassackwards? (From a first letter, bare as an tiny wormed hook - for fishing, no doubt - to a letter advising me that I lived at my own address - as if I did not know this already - to a letter denying the debt is statue-barred (but not proving it isn't), to a welcome letter you'd think was long overdo - and all interspersed with some over-the-phone abuse!) There must be some due process they must follow - or can they send letters to people willy-nilly?

 

Thanks for reading. If you haven't, worry not. You haven't missed much as I fear the best is yet to come.

Edited June 23, 2008 by Fluviomarine
typos/sense