Link phone call

[harrassedbyphone]

Just thought I would ask this as Link could not answer me and actually admitted they did not understand. For the second time in a week they have been on the phone asking me to update my agreement with them by sending my income and expenditure to them. When I asked on what legal basis can they ask for it they did not know and just said it was company policy. My response to them was I have been paying regularly since 2006, always paid on a monthly basis (although they claim that some payments have gone in late due to which would be due to weekends etc). They now say they will make a note that I will continue paying (as I told them my circumstances have changed and if I did do an I & E I would be entitled to pay less) but will take it further.

 

Can someone please answer if they do have any legal rights to ask for an I & E and also what further action could they take when I have been paying anyway?

[sillygirl1]

They have NO legal rights to an I&E and in fact a lot of the info they ask for you shouldn't be giving, ie your bank details.... unless the amount you are paying has been subject to a court order they are really on a sticky wicket.

[harrassedbyphone]

Thank you, i thought as much. I think they were just trying to see if they can get me to pay the debt of quicker to be honest

[cerberusalert]

If it is a credit card or loan debt have you CCA'd them to see if the agreement is enforceable?

 

If its an overdraft have you sent SAR to the original creditor to reclaim unfair charges?

[harrassedbyphone]

It is for an old loan debt of which should be paid by my former husband as part of the divorce agreement - however they came ringing and ringing me until I caved in and have been paying it since. I did say to them today that I will obtain another copy of the agreement (as normal for them they say they do not have the paperwork) and send it to them, then they can harrass him instead of a single parent. Sorry bit of a rant there but no I have not CCA'd as I knew of the debt when they first started calling me

[cerberusalert]

If the debt is not in your name they have no right to pursue you for it, in fact they would be in breach of OFT guidelines.

 

Send them a CCA request to see if they are entitled to collect this debt & if it's enforcable. If they fail to provide it within 12+2 days or the CCA is unenforcable you can legally withold any payment until they do. Send it recorded delivery enclosing a £1 postal order. When you get a reply, scan it & remove any identifying details and post it back here where we can have a look at it. We'll advise you from there;

 

Dear Sir/Madam

 

Re:- Account No: XXXXXXXX/Your Reference Number: XXXXXXX

 

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77 will apply.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR). I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

Furthermore, with regards to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.

 

I have verbally requested that these stop, but I am still receiving calls. (Delete if necessary)

 

I now require all further correspondence from your company to be made in writing only.

 

You are reminded of the following under The Administration of Justice Act 1970.

 

Section 40 of the act provides that a person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under contract, he or she:

 

(a) harasses the other with demands for payment which by their frequency, or the manner or occasion of their making, or any accompanying threat or publicity are calculated to subject him or his family or household to alarm, distress or humiliation;

(b) falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;

© falsely represent themselves to be authorized in some official capacity to claim or enforce payment;

(d) utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.

 

I am of the view that your harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

 

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Further to this if it is your intention to arrange a call from your 'Doorstep Collectors', I note that there is only an implied license under English Common Law for certain people to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.).

 

Take note, I revoke license under English Common Law for you, or any of your representatives to visit me at my property and if you do so without my permission, you will then be liable to damages for a tort of trespass. You would also be conspiring in a trespass if you sent someone to visit me nevertheless. Any trespassers you attempt to send therefore will be dealt with accordingly.Be further advised that any further telephone calls from your company will be recorded.

 

(Optional addition)

 

I look forward to hearing from you.

 

Yours faithfully **Edit to suit**

 

(Print do not sign signature)

[harrassedbyphone]

Thank you for that letter cerbersalert - the debt was taken out in joint names, although I have since changed mine. I don't think i can go on the angle that it was not my debt

[cerberusalert]

Maybe not, you'll probably be joint and severly liable. But if it is part of your divorce settlement you can go after your ex-husband yourself.

 

For now though send the CCA request & see what that throws up.

[harrassedbyphone]

Ok thank you will send that off and see what they come up with

[joemay]

It is for an old loan debt of which should be paid by my former husband as part of the divorce agreement - however they came ringing and ringing me until I caved in and have been paying it since. I did say to them today that I will obtain another copy of the agreement (as normal for them they say they do not have the paperwork) and send it to them, then they can harrass him instead of a single parent. Sorry bit of a rant there but no I have not CCA'd as I knew of the debt when they first started calling me

 

Has he told you he hasn't been paying or is it them saying he hasn't, could they be taking payments from both of you. I've heard before that a DCA had chased both parties, and both were paying but neither of them knew this. Have you been receiving statements of accounts?

 

As already suggested by cerberusalert, if it was part of your divorce settlement you should look into that angel as well.

[harrassedbyphone]

It is the DCA that have told me this - they even said on the phone today that they have not been in contact with him for quite a while! I have also never once received a statement from them the whole time I have been paying!!

 

How would I go about getting the money back off my ex?

[The GodMother]

sue

[joemay]

Hi, You haven't rec'd statements of accounts:eek:they are required to send regular statements to you.

 

I would SAR them, it costs £10(but do not signed the letter with your usual signature)That will give you details of everything they have on your account, statements, phone call transcripts etc.

 

I'm sorry but I don't have any knowledge in the area of getting the money back from your ex? You mentioned that it was agreed in the divorce settlement, would it not be an idea to see the solicitor who dealth with the settlement, for advice on this one.

 

Keep us posted:)

[harrassedbyphone]

That is not worth doing at the mo - he has just walked out on his job, not even I am getting a penny in child maintenance. Will have to sit and wait on that one for a while. In the meantime a copy of my affidavite which has his agreement to pay any joint debts has been requested and I will write off a cca and save for a subject access request.

 

Many thanks for all your help guys and girls

[The GodMother]

YW.

[harrassedbyphone]

Just a thought - if they should be sending me regular statements and never have, why should I pay to receive them?

 

Also, sorry to be thick but what does YW stand for?

[make them aktiv runners]

I did not think regular statements were issued for loan agreements. You can ask them for a statement of account under CCA 1974.

 

As far as Link are concerned the debt is in joint names, meaning they can chase one or both of you for repayment. If neither of you paid, they would have to justify to court why they were not equally pursuing both parties. If your divorce agreement is one certified by the court and is clear over who pays for what, I would be tempted to send them a copy and insist they chase him for payment.

 

YW means your welcome.

[The GodMother]

Your Welcome.

 

You dont pay to recieve them they should be free. U have the rite to know what your balance is and what if they are charging you.

[harrassedbyphone]

Thank you again for that info. I know (even though I don't have a copy here) that my ex wrote on the affidavit that he has agreed to pay any outstanding loans and this was obviously stamped as seen and agreed by the court. I am thinking of just continueing paying until I have the copy and then just send that to Link with his address but not sure if this is just a cop out

[cerberusalert]

I am thinking of just continueing paying until I have the copy and then just send that to Link with his address but not sure if this is just a cop out

It's not 'a cop out' at all, if it was part of the settlement you have every right to enforce it. Besides, no doubt you have better things to spend the money on, particularly as you are not receiving maintenance.

[cerberusalert]

Once you get a copy of the affidavit send Link a copy and it should be the end of the matter. Even if they were stupid enough to take it to court they would lose as it is a legal document accepted and endorsed proving your ex's sole liability.

[harrassedbyphone]

Thank you for that - its the fact that I am no longer receiving maintenance that makes me want to enforce it all the more

[make them aktiv runners]

Once you get a copy of the affidavit send Link a copy and it should be the end of the matter. Even if they were stupid enough to take it to court they would lose as it is a legal document accepted and endorsed proving your ex's sole liability.

 

Without getting too technical, this does need a little expansion.

 

Legally you cannot assign the debt to anyone else, meaning you cannot force your ex to pay.

 

Agreements usually have a condition for debtors to be denied the right to assign their laibility, or debt.

 

Whilst the debt itself cannot be assigned, the court has made it clear which of the 2 parties must be chased first.

 

As long as you are up front with information from the divorce, any future court action would raise a very big question over why your ex is not paying.

[harrassedbyphone]

Thank you that is quite enlightening. As already stated they have admitted that they have not been in contact with him for a long time and as I am paying they probably wont be. I am aware that it is apparaently the decision of the DCA who they chase and if they agree to the terms in the divorce proceedings but as you say it would be interesting to find out why they have not contacted him first - if indeed they have at all