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

[ODC]

Stick with it fluvio. As you well know the burden of proof rests with the DCA not you.

[Fluviomarine]

Thanks, ODC. Will do and will keep posting.

[babybear39]

Please do so as it helps other members

[Fluviomarine]

Just an update for those of you who are interested: no news since my last action on this issue. But silence in these matters betokens anything but a reprieve, I'm sure. So, to recap:

 

THE PROBLEM

 

In a nutshell, the DCA (qua Cabot) claim I owe them money (sub £300) from a Barclay's account closed over 9 years ago, which Cabot "acquired" over 7 years after closure and, after "locating me" at my home address this year (where else would I be?), decided I should pay for. They decided to do this with a fanfare of letters (that have taken a strange chronology [see my post #25]) and with a barrage of telephone calls, most resulting in adenoidal messages left on my mobile phone answering service that heared the caller pretend as if they didn't know they are leaving messages on an answering service: "Ah, hello? Hello? HELLO?" (Click.)

 

WHAT I DID

 

In effect, I claimed that the accont attributed to me is statue-barred (STABD) and that unless they could prove it wasn't (i.e. that I'd made a payment on the account or that I'd communicated in writing that I acknowledged the debt) I considered legally unenforceable. I decided to do this because:

 

a) the debt in question (sub £300) is older than 6 years (the DCA itself only picked up the thing 7 years after the fact, and the account it relates to, a Barclay's account, closed 9 years ago, 1 year after it was opened); and

 

b) there is nothing in any of the big three credit reference agencies against my name for this debt.

 

Rather than toil with establishing whether the debt could ever have belonged to me at all (I have no paperwork for the account in question or for the debt from the original creditor, Barclay's), I decided it was STABD as it wouldn't matter whether or not the debt once applied to an account in my name or not if it was out of bounds.

 

THE ISSUE

 

The DCA decided to ignore my response and then suddenly claimed that a payment was made on the account by me in the period in question and so it was no longer STABD and therefore I had better pay it. (More letters and more soporific phone calls and messges.)

 

WHAT I DID

 

I took action a second time (see my post #6) as the DCA in question, qua Cabot, failed to provide the evidence that I had made that payment. I also insited they refrain from contacting me by phnoe and warned them that if they continued to contact me by phone after this very final request (I'd already told them once before) and/or continue to claim that I was liable for a debt they have yet to prove is not STABD and then continue to press for payments, or if I have any reason to suspect that fraud was/is involved in anyway, I would contact the relevant authorities, starting with the police. I gave them seven days to provide proof that I had made the payment, considering it a reasonable turnaround time as they were able to tell me almost immediately after I'd claimed the debt was STABD that it wasn't and that I'd made a payment on the account.

 

COROLLARY

 

I gave them a week to respond - 11 days ago. So if I hear anything more from them, this fish won't be a happy shoaler, at all.

 

 

WHAT HAS HAPPENED SINCE

 

Nothing.

 

WHAT I WILL DO NOW

Is wait for the next (scabrous tenesmus?) communique on their part. Oh, and thank anyone out there for "listening". . .

 

"Hello? Hello? Hello?"

 

(Out.)

[Fuzzgin]

I do love it when the single DCA braincell challenges someone who relishes a good verbal battle. They don't stand a chance. Ever thought of writing a book about it?

 

Go get 'em!

[ODC]

The DCAs and their threat monkeys are completely useless if you get them off the script. Similarly if you ask them things that the threatomatic computer cannot process then they are up the proverbial creek sans paddle

[Percival Wigglesbottom]

Even if they could prove you made a payment in 2003, they would still need to prove there is no period of 6 years of no payment or acknowledgment preceeding this date. They would need the month and year determined by your agreement that was the original cause of action, can they supply that information ? Just because you paid ( not saying you did ) within the last 6 years doesn't prove it isn't statute barred.

 

 

 

They would need the month and year determined by your agreement that was the original cause of action

 

That stipulated the conditions of cause of action.. not the date signed in the cca in itself , that being just a time stamp after which it could have happened .

Edited June 23, 2008 by Percival Wigglesbottom

[ODC]

They are a slppery lot. They yried the same trick with me. I had conclusive proof I made NO payments but Lowell took it NO further,

 

What has happened is a common DCA ploy. They or the OC make a token £5 payment just to extend the life of an agreement

[locutus]

Please keep an eye on your credit report! I'd not put it past them to register a default!

[citizenB]

subbing, I like your style Fluviomarine:D

[Sol]

This same thing is happening to my friend. She's in Scotland so it's 5 years and the DCA have claimed a pymt was made in 2003. She asked for proof and they sent some rubbish statement with jargon all over it. I told her not to accept it and demand proper evidence ie. something with her bank details or signature to show she made the pymt and after two letters saying what they've sent is proof, second one very friendly, they've put the file on hold to request the info.

[itsamomentintime]

Just wait a few more weeks to see my sig

 

it better be good babybear39, its been coming for ages!!!

[babybear39]

Oh, it will be

[Fluviomarine]

Thanks for the feedback, one and all (see my individual responses below).

 

I will keep you posted, as I await news of Cabot, which could be a while, although I won't hold my breath.

 

If, however, Cabot does "decide" to test my lungs, I am minded to continue to post, not quite regardless, but fairly mindful of the fact, in the form of a divertimento: a mock play on the subject of my waiting, a redaction of an already famous Becket play, but renamed "Waiting for Cabot" . . . (In which I would hope to capture the same chronicle of wasted time that Becket has in his work - but for a slightly more - ah - modern audience?)

 

Thanks again to all.

 

***

 

Fuzzgin, ODC: true, I am getting curiouser and curiouser about the goings on here and so I will defend myself!. I shudder to think what depths I would plumb to in the waters of the many issues found across this (and so many other) forums out there, let alone in my tiny rivulet of a thread. (If I am honest, the only relish should like to take, when all's said and done, is the one I would put on my hotdog on a summer's day unbogged by all this. So much whistled breath through slightly parted teeth I fear I am giving...)

 

ODC, apropos making payments to keep debts in bounds: I can't believe DCAs would even attempt this , as it is such an obvious risk to take. In my case, however, the claim was that a £20 payment was made invalidating the 6-year rule. Would you gamble £20 to win under £300 before any cards are shown, especially without any kicker cards in hand to help you through the first round? I wouldn't. But if it's something they would do, I suspect there must be consolidated odds at work here: £20 on my sub £300, but £5 on another's £800 — that sort of thing? Hmm...

 

Percival: I believe you are correct: establishing the debt is not STABD thanks to a payment would presuppose that the debt wasn't STABD to begin with! (In answer, yes, I could request a CCA. But I have yet to have anything from them that warrants my taking that next step - or the one after that, when they fail to deliver it on time, fail to produce the proper paperwork (they seem to like sending their own system-generated documents on their own headed paper. I.e. I want to keep holding the big stick behind my back.)

 

locutus: for your peace of mind, I have done so and checked my records, and nothing showing. I will keep checking, though. Thanks.

 

citizenB: style is a state of mind, which is to say: I simply refuse to have any DCA comport themselves as if anything I brought up were anachronistic. I shall overcome!

 

Sol: thanks for this. You and ODC are singing from the same hymn sheet. I won't ignore the chorus when it comes round again!

 

itsamo, babybear39: pray tell, what's a "sig"? *(This a graveyard of lost souls or sorts? If so, sounds like most won't be able to hold a candle to yours, babybear39!)

[babybear39]

The 'sig' referred to is when I update my signature when my bankruptcy discharge is granted in a few weeks

[ODC]

FM

 

As regards the DCA making a payment to keep an account inside the magic 6 yrs. I believe it to be a widespread practice as even paying a toke like a fiver before selling on a debt makes it look active to the prospective purchaser and makes them think that they have a full6 yrs in which to chase it.

I was told by our favourite firm in Leeds that I have made a payment on a certain date. I knew I hadnt and could prove it for a fact yet they insisted they could prove it. Still its a pity they couldnt come up with a CCA because I know whose proof the Court would have accepted

[letitbeme]

Hi, This thread has been an excellent read, especially the post’s that enlighten and expose those deciatfu frauds that are knowen as DCA’s .

Regards LIBM

[Fluviomarine]

Dear fellow Caggies*

 

Nothing to report since posts 39 and 29, I am afraid. Nothing material, that is. Cabot continues to call me, usually three times a day, leaving that familiar message on the third try: "Hello, can I speak with... Hello? HELLO? H-E-L-L-O?". This is in direct contravention of my explicit request not to contact me except in writing.

 

Cabot & Co. continue to pretend not to know (else they are truly butt heads and really do not know) that they are leaving a message on an answering service. I've cleverly disguised mine, you see. It says, Hi. please leave a message after the tone and I'll get back to you as soon as possible. BEEP.

 

But I'm thinking of employing something a little more . . . sporting?

 

Ah, dear butt heads! (You know who you are, don't you?) You continue to flout the law and ignore what I have warned you not to do anymore. You bang on and on and on against what is clearly a stone wall, and I fear you are about to do some serious self-harm... You should know I cannot take any more responsibility for your own slipperiness, which, if I am honest, is starting to irk this little fishy.

 

You couldn't just keep to your own waters, could you? No, no, no. You guys just had to shoal up where you aren't supposed to. Tut, tut, tut. Don't say I didn't try to warn you. That little message I sent you a while back? The one pointing out all those things you should be careful of now that you are out in open waters? Well, you should have paid attention! The nets are laid out. I won't be able to untangle you if you get stuck in them.

 

I know, I know. You have trouble writing, what with your awkward fins and all. But you can't just froth at the mouth like you have been and expect not to make a splash. You know what they say: you blow air out of your gills, you make bubbles!

 

I don't want you to flounder unnecesarily (I am a fair-minded sort of creature), but you should know that your silly sound-offs won't get you anywhere except into hot water. Yes, all that slurping, sipping and squelching you leave me to listen to; all those sea-sounds in the background; that poor bendsy-voiced Mr Anderson -- it's time it all went into the conch, so to speak. And you know what they say about the conch, don't you? "He who holds the conch, rules the reef!"

 

Ok, so he who holds the conch rules the island, not the reef: but you're not in your little fish tank anymore, are you? And down here, in the water, it's fish-eat-fish....

 

["BUBBLE" SOUNDS IN PLACE OF "BEEP"]

 

I will keep you posted if I get anything worth posting. (I'm not holding my breath...)

 

Thanks for listening.

 

Fluviomarine

 

* Caggies = Consumer Action Groupies?

Edited July 24, 2008 by Fluviomarine
Typo

[locutus]

Fluviomarine, as they are already trying to have a conversation with your answermachine, and your answer machine and the DCA seem to have comparable IQ's... can you edit your answermachine message to see how far into the conversation you can get? see if you can create a counter-script to the one they obviously read off?

[palomino]

 

Cabot & Co. continue to pretend not to know (else they are truly butt heads and really do not know) that they are leaving a message on an answering service. I've cleverly disguised mine, you see. It says, Hi. please leave a message after the tone and I'll get back to you as soon as possible. BEEP.

 

 

I'm sure they have an autodialler which switches the call to a real person (sic) only when the call is answered. It takes a finite time to do this, by which time your answerphone message has already played out, and all the real person gets is a dead line.

 

Make your message last a bit longer and then see what happens.

[BeauBrummie]

Hi Fluviomarine,

 

Ever thought of "writing" for a living, after you have fought off the circling sharks of course. Your descriptive use of the English Language is excellent, only trouble is if you use that type of language with Cabot, I think they probably won't understand lol.

 

Excellent thread, keep up the good work (and writing).

 

BB

[Fluviomarine]

Dear Fellow Caggies,

 

GREETINGS

 

After plumbing the depths of my very own personal livelihood, I have resurfaced!

 

I said I would continue posting, if I came across anything worth posting — and I have. For any of you who happen to know (or who are able to surmise at a glance) what's what, I would say skip down to WHERE THINGS STAND to get the latest scoop; otherwise, check out the RECAP.

 

Apologies for the rather tedious and dry tirade (is that possible?).

 

I didn't spend enough time to chop this down.

 

Fluvio

 

 

***

 

A RECAP

 

After a strange beginning, Cabot contacts me "out of the blue", claiming I owed them money for a debt that they acquired from Barclay's.* (This was the first time I'd ever heard of Cabot or the debt.) I tell them I will look into the matter, but acknowledge no debt to them.

 

Cabot claims they acquired this debt in 2007 and that it relates to an account closed in 1999 (making the debt 9 years old — and counting).

 

I check my credit rating with the three credit reference agencies. I see that nothing is/has been/was ever posted concerning this alleged debt. I note that I have never received any correspondence from Barclay's or Cabot concerning this debt.

 

I inform Cabot that I consider that, unless they can provide evidence that I acknowledged or made a payment towards this debt within the relevant period (6 years), the debt is statute barred and legally unenforceable, however incurred or regardless of who the debt may or may not belong to.

 

Cabot then claims I made a payment on this debt in 2003 (in effect, attempting to invalidate my statue-barred defence, as a payment by me within the six-year period would make the debt enforceable). I tell them (in writing): prove it. I also tell them not to contact me by phone ever again and ask them to acknowledge this in writing (which they don't do).

 

Cabot then bombards me with telephone calls and futile messages over many months. In the meantime they send various letters (not always from the same person, and therefore pursuing different lines of communication): telling me they have traced me to my home address (where else would I be?), asking me to call them, urging me to arrange a payment plan, welcoming me to Cabot and sometimes (as the letters come from multiple sources) duplicates of these —*all of which elicit the same response from me, only with increasing admonition and warnings that I will pass on the matter to the relevant authorities: unless they can provide evidence I made a payment towards this debt within the relevant period (6 years), the debt is statute barred, etc. Lastly, I also ask them for a full description of their complaints procedure.

 

WHERE THINGS STAND

 

After all of the above, they then send me . . . two more letters (one from each correspondent). Which prompts me to send them one final, strongly worded letter, telling them that they have effectively ****ed me off royally (for starters) and that now, with or without their acknowledgment in writing, I consider their unbroken series of disjoint responses to date negligent and practice unbecoming of professional managers, both of which I highlight to [i name the authorities] as I pass the matter on them, starting with the police.

 

This last point, I would say to anyone listening, is very important, for two reasons: 1) establishing total control over the situation, first professionally, now morally; and 2) ensuring that it will appear, at some later stage (assuming it will all go pear-shaped), that I have availed myself of every means to communicate fairly and reasonably.

 

Thus I remind them:

 

* that they have not once explicitly acknowledged receipt of any of my letters;

 

* that they have not once explicitly indicated that they have noted the contents of any of my letters;

 

* that they have not once agreed to desist from calling me by phone (as I requested, citing statue and act);

 

* that they have not once confirmed that they will remove from their records any contact numbers they have for me on their system (as I requested, etc.);

 

* that they have not once agreed to communicate with me in writing only (as requested, etc.);

 

* that, importantly, they have consistently failed to produce or deliberately ignored producing any evidence of payment from me as required by law (as I have stipulated they do from the word go, citing statue and act) [i make a point of urging them to note and resolve the sheer difference between saying I made a payment and proving I made a payment];

 

* that they have continued to presume that this debt is owed to them by me when it is clear that the debt, however incurred, by whomever, is clearly in dispute and that their responses have failed to reflect this;

 

* that I consider continued claims, whether in writing or over the phone, that I owe them money plus interest for a debt that has yet to be established as legal, let alone mine, not harassment but libelous;

 

* that they have failed to provide me with a detailed description of their complaints procedure (as requested);

 

* that having two people contact me separately, sending different letters as if pursuing two separate lines of communication, is professional misconduct; and

 

* that their abject failure to cooperate with me and resolve the matter is no accident considering that a very reasonable 150 days has elapsed since they began this ordeal;

 

* that they have failed to offer me so much as an apology for the hernial inconvenience of it all;

 

And then I tell them, that because of all this, I will send my detailed and tedious account of their woeful conduct first to Financial Ombudsman (who may charge them, etc.) and then to

. Cabot went quite for about 10 days.

 

WHAT CABOT DID

 

Cabot then sent me a letter. They conceded that they would agree to stop calling me [?!] and continue to write to me [?!] provided I diligently cooperated with them [?!]. They also mentioned, that they have written to the original creditor (Barclays) to get that evidence of my having made a payment within the six years, that it may take more than 21 days and that they would appreciate my patience in this matter.

 

WHAT DO I DO NOW?

 

Obviously I have to wait and see what they come back with. I should say, I'm not worried; not at all, in fact. But I do wonder what they could possibly send me. What would be legally valid? And how long do they have to get this info? (They say 21+ days, but surely they can't wait forever, especially as 2009 is around the corner: ah, 6 years from the alleged day I made a payment! Is there such a thing a doubly-statute-barred? ) Have they exceeded their time limit to produce this evidence already (150+ days so far)?

[42man]

If it was me in your position I would have no hesitation in taking them to court for harrassment....this is what the OFT say - 2.14 (b) -

• continuing to press for payment after a debtor has stated that they

will not be paying a debt because it is statute barred could amount to

harassment contrary to section 40 (1) of the Administration of

Justice Act 1970.

[rory32]

You should also be making a complain to the OFT under the Consumer Protection from Unfair Trading Regulations http://www.consumeractiongroup.co.uk/forum/consumer-protection-unfair-trading/

[ODC]

Bearing in mind that this is Barclaycard we are talking about then I would be hugely surprised if Crapbot could ever produce anything resemmbling a properly executed CCA agreement. As for the mysterious payment made in 2003 Crapbot being the connsumate professionals that they are know that the burden of proof rests with them. It is not unknown for DCAs to 'invent' imaginary payments to extend the shelf life of an old debt