Discontinued claim... but now enforcing judgement??? robbersway/HSBC

[vjohn82]

I would wait to see what other trash they'll dream up.

 

My line of thinking too... just getting sick and tired of the constant letters and phone contact.

 

They have been told where to go numerous times... they just can't leave it alone!

[sevenhorsestakes]

Aside from Cabot Lowell Portfolio/Financial/Red have one office with lots of desks with different names. They contacted me re a Capital One - I sent a s77/78 and Capital one eventually sent me a copy of the T&C July 2010. The last recorded payment to C1 was Oct 2004, there next contact to me was Dec 2010. I sent an SB letter to them - they said it wasn't SB because the date of DN was 19/03/11. I sent a follow up SB. They passed it from Lowell Portfolio to Lowell Financial and back and back again with various letters demanding payment. On 21st March 2011 I get a Letter from RED another Lowell desk. Now it's past the DN - so I sent the third SB... But to my surprise Red have sent yet another in reply to the SB threatening that they are now going to pass the account to there Special Recovery Team to 'Assess' my account and their best course of action for recovery. They are so insane. Should I really now just leave it to them or send a letter for my time and and ask for their complains procedure? Seriously Cupid Stunts.

[DonkeyB]

Not the first time they’ve done this.

 

A complaint to the OFT is what’s required. They are deliberately trying to mislead you by claiming that the SB clock starts when a default is recorded – that is not the case. The SB clock starts when the cause of action arises, ie. the first failure to pay a due payment, so that would be about a month after your last payment.

 

To ignore your letters is simply harassment, and according to the OFT, possibly criminal harassment. Please, please contact the OFT and complain loudly.

[sevenhorsestakes]

Not the first time they’ve done this.

 

A complaint to the OFT is what’s required. They are deliberately trying to mislead you by claiming that the SB clock starts when a default is recorded – that is not the case. The SB clock starts when the cause of action arises, ie. the first failure to pay a due payment, so that would be about a month after your last payment.

 

To ignore your letters is simply harassment, and according to the OFT, possibly criminal harassment. Please, please contact the OFT and complain loudly.

 

Totally agree, I have decided to send the following SB second letter below. Then thanks to some useful information found at

http://www.oft.gov.uk/shared_oft/bus...dit/oft664.pdf and

http://www.insolvencyhelpline.co.uk/..._creditors.php

 

I think that this letter gives the perfect springboard for complaining - I have been polite and replied to each letter and assuming it will be a continuation of the same computer generated/time based letters - Will be a formal complaint must be made to The Leeds Losers, my MP, The Credit Reference Agency concerned, The Data protection Registrar, The Financial Ombudsman and the OFT...

 

And Uncle Tom Cobbly 'n'all if he'll listen.

 

Letter going today:

 

This letter does not admit liability nor does it acknowledge the alleged debt.

Thank you for your letter 31st March 2010 contents of which have been noted.

 

I refer you to my letter of 1st April, in which my position was clearly described. To reiterate, you were informed that this alleged debt is Barred under Statute in accordance with Section 5 of the Limitation Act 1980. I have included a copy of this original correspondence sent to Lowell for your perusal and ease of reference.

 

As your letter contests that this is the case, it is now your legal obligation to substantiate your claims and to prove that this alleged debt is indeed enforceable and not barred by statute. Please note that at no point have I been received a Default Notice and have never received any proof of acknowledgment in writing or payment.

 

You should be aware that I am fully familiar with the Office of Fair Trading Debt Collection Guidance, which states that it is unfair to mislead debtors as to their rights and obligations by falsely stating or implying that the debt is still legally recoverable and continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred. I also refer to 2.5 of the guidelines regarding Physical/psychological harassment

 

You should also be aware that if you are unable to substantiate your claims then your behaviour will be considered harassment contrary to section 40 (1) of the Administration of Justice Act 1970, and may result in my choosing to pursue action against you.

 

In addition, I hereby demand that you now supply me with information regarding your complaints procedure. Failure to comply will result in the complaint being escalated to the Financial Ombudsman Service, who will charge you for investigating my complaint.

 

Finally, I expect no further contact be made concerning the above account unless you can provide clear evidence as to my liability for the debt in question, or your written confirmation that this matter is now closed.I would appreciate your due diligence in this matter. I look forward to hearing from you in writing.

 

Yours faithfully,

[Bigdebtor]

SHS

 

Excellent letter!

 

I'll be interested to hear of any response - but I think they'll just crawl back under their stone now - and possibly try to sell it on to another sucker - Aktiv Kapital seem to be quite keen to buy unenforceable debts from my own experience!

 

I hadn't realised Lowell and Cabot etc. were all together - must be quite a stench coming from that particular office!

 

BD

[The Mould]

Totally agree, I have decided to send the following SB second letter below. Then thanks to some useful information found at

http://www.oft.gov.uk/shared_oft/bus...dit/oft664.pdf and

http://www.insolvencyhelpline.co.uk/..._creditors.php

 

I think that this letter gives the perfect springboard for complaining - I have been polite and replied to each letter and assuming it will be a continuation of the same computer generated/time based letters - Will be a formal complaint must be made to The Leeds Losers, my MP, The Credit Reference Agency concerned, The Data protection Registrar, The Financial Ombudsman and the OFT...

 

And Uncle Tom Cobbly 'n'all if he'll listen.

 

Letter going today:

 

This letter does not admit liability nor does it acknowledge the alleged debt.

Thank you for your letter 31st March 2010 contents of which have been noted.

 

I refer you to my letter of 1st April, in which my position was clearly described. To reiterate, you were informed that this alleged debt is Barred under Statute in accordance with Section 5 of the Limitation Act 1980. I have included a copy of this original correspondence sent to Lowell for your perusal and ease of reference.

 

As your letter contests that this is the case, it is now your legal obligation to substantiate your claims and to prove that this alleged debt is indeed enforceable and not barred by statute. Please note that at no point have I been received a Default Notice and have never received any proof of acknowledgment in writing or payment.

 

You should be aware that I am fully familiar with the Office of Fair Trading Debt Collection Guidance, which states that it is unfair to mislead debtors as to their rights and obligations by falsely stating or implying that the debt is still legally recoverable and continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred. I also refer to 2.5 of the guidelines regarding Physical/psychological harassment

 

You should also be aware that if you are unable to substantiate your claims then your behaviour will be considered harassment contrary to section 40 (1) of the Administration of Justice Act 1970, and may result in my choosing to pursue action against you.

 

In addition, I hereby demand that you now supply me with information regarding your complaints procedure. Failure to comply will result in the complaint being escalated to the Financial Ombudsman Service, who will charge you for investigating my complaint.

 

Finally, I expect no further contact be made concerning the above account unless you can provide clear evidence as to my liability for the debt in question, or your written confirmation that this matter is now closed.I would appreciate your due diligence in this matter. I look forward to hearing from you in writing.

 

Yours faithfully,

 

Good afternoon Sevenhorse

With reference to the above letter, I would like to post some information for you in respect of the Administration of Justice Act 1970.

Administration of Justice Act 1970

s.40 (1) 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 a contract, he;

a) Harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of 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;

c) Falsely represents himself to be authorised in some official capacity to claim or enforce payment; or

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.

2) A person may be guilty of an offence by virtue of subsection (1)(a) above, if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.

3) Subsection (1)(a) above, does not apply to anything done by a person which is reasonable (and otherwise permissible in law) for the purpose –

a) of securing the discharge of an obligation due, or believed by him to be due, to himself or to the persons for whom he acts, or protecting himself or them from future loss; or

b) of the enforcement of any liability by legal process.

An individual is offered no civil remedy under the said act, therefore, an individual holds no right to bring an action under said act, any such proceedings commenced under the said act would be subject to criminal proceedings and so an individual holds no standing in court to present a criminal prosecution.

Instead of quoting said act in your letter, might I suggest that you instead refer the creditor to;

Protection from Harassment Act 1997

s1 (1) prohibits a course of conduct which amounts to harassment of another.

s3 provides that a breach of s1 may be the subject of a claim in civil proceedings. Damages may be awarded for anxiety and any financial loss caused by the harassment.

Please do bear in mind that I make no criticism of your fine letter, I am simply informing you (and any others) that you would be told by the courts that you have no right to argue any breach of the Administration of Justice Act 1970 as it is a matter for the Crown Prosecution Service to exercise and that would be subject to upon being presented with evidence by the Constabulary (the Police Force).

You should then (in my view, which is based upon what you have reported here, so also please keep in mind that I do not have knowledge of your full case details), state in your letter (under the harassment part)

“ that you are considering on taking the necessary action under s3 of said act and therefore this letter is intended to put you on notice as to the same, as a Data Controller you do of course, have duties that ought to be complied with not only under the said act but also to me as the subject of the data and a potential claimant therein”

“As you have notice of a potential claim, I require your written confirmation that you will now ensure your compliance with your obligations under said act within 14 days of receipt hereof”

I hope this posting will help you somewhat.

Kind regards

The Mould

[sevenhorsestakes]

Thank you TM for that. This is information I have gleamed from a number of sources and have seen the Administration of Justice Act 1970 quoted on every letter template I have seen. Quoting as you said Protection from Harassment Act 1997 makes more sense. I have already sent the letter - which is a shame. But will see what comes back. Cheers for that excellent information which I will employ in the future and will be good to have out there for others in the same SB situation.

 

Hi BD - Cabot and Lowell are two separate companies.

 

Lowell of Leeds, hides behind 4 company names in one building - Lowell Portfolio who buy the debt - Lowell Financial is the second desk to get you to pay - RED is there third desk involved in escalating their attack and the the forth is Hampton for when your account is very serious.

 

Cabot are in West Malling and don't bother with desks as they are a bunch of vampires that will bleed there own dry.

Edited April 7, 2011 by sevenhorsestakes

[The Mould]

No problemo memo Sevenhorses

 

Yes, the Harassment Act offers the protection and will deliver the message with the required velocity. The AOJA 1970 can put the wind up the creditors, but when they realize that the consumer can not enforce any breach thereof, the creditors just carry on with their usual unacceptable conduct.

 

Kind regards

 

The Mould

[sevenhorsestakes]

Having sent the letter which includes requesting their Complaints procedure. Lowell are also in breach of the CPUTR 2008 by threatening action which they know they cannot legally take and also by breach the guidelines of their trade organization the CSA. I can prepare various complains to OFT, CSA, FOS and DPR - have download their forms and they all ask you to call before writing. So they have the package and I can prepare and research the complaints procedure. So unless they come up with some amazing piece of evidence against me I have plenty of ammo if they don't call off the dogs.

 

Many thanks for your information - it's such a minefield and though we treat these DCA with contempt the understand when people are just taking a letter template here and there from the internet without thinking it through.

[sevenhorsestakes]

Hi All...

Have just received an encrypted CD SAR from Cabot. I was worried as to how much they would go into, but am surprised that it's less that I thought.

 

They have not provided as requested copies of recordings and transcripts there of - but have very vague notes written down about the conversation.

 

The main defence was going to be Statute Barred - In the initital trapping on the phone I agreed to let them take £10 from a Monument Card. But I don't remember and they don't have the records of the conversation to prove that I gave them permission to take £10 from each of two accounts. There a re some vague emails and am not sure if I fully hang myself in them.

 

So it may be possible to defend as statute barred but not for sure.

 

In terms of the agreements - the Alliance and Leicester never provided a copy of the agreement. So is unenforceable under s77, s78. The have however continued to add interest.

 

The Abbey terms and conditions do not contain a signature - but I know that that isn't necessary, However it does not contain my name, but does contain the address at the time.

I haven't had the agreement audited properly - would it be worth doing asap? If so does anyone know where to go to get it done for a relatively small charge.

 

The Monument is the one I know I agreed to them taking £10 over the phone. So no quarry with that - The terms and conditions though does not contain my name or address at the time.

I haven't had the agreement audited properly also.

 

I have have asked for 28 days to respond - what do you think is the best way forward?

 

As a Postscript - Lowell have at last given up on Statute barred and said they will take no further.

action.

 

Hope to have someones thought on the way through as to what would be the best policy.

 

Regards,

 

SSS

[steven4064]

Alliance and Leicester- have they provided nothing at all?

 

On the other agreements it is not worth having them audited. Recent cases have ruled that if an agreement is a 'true copy' (ie it contains the prescribed terms) than it is enforceable if the debtor admits they borrowed the money. The courts seem happy that the reconstituted 'agreement' contaning (only) the prescrribed terms is (on the balance of probabilities) an enforceable agreement. Prescribed terms are given in schedule 6 of the Consumer Crdit (Agreements) Regulations 1983

[sevenhorsestakes]

Hi Steve,

 

I issued a s78 and they did not send a copy of the T&C just hold a copy of the application dated 2000.

 

The other two come with application/confirmation form and original T&C 1996/2001.

 

I've read so much about the auditing and enforcement of the s61/65, but everything seems to be so contradictory. I thought that the T&C had to have the name and address at the time, plus a cancellation form for starters to be enforceable - but, from what you say, auditing is simply a waste of time whether they are legally unenforceable or not as the courts a re more likely to come down on the side of the creditor.

 

Re: Prescribed terms are given in schedule 6 of the Consumer Credit (Agreements) Regulations 1983 - I've just had a look and it is hard to make sense of in essence they could be unenforceable, but it's the take on the judge.

 

On your unenforceable page on...

 

Summary

 

2. An agreement that is not properly executed and was signed before 2006 is not enforceable unless it has the debtor's signature and the prescribed terms in the same document.

 

3. The enforceability of an agreement that is not properly executed, signed after 6 April 2007 and not having the debtor's signature and the prescribed terms in the same document may not be enforceable but it's enforceability has to be argued on a case-by-case basis (you cannot use section 127(3)).

 

What advice would you give as a course of action? is it worth looking at the T&C at all?

 

Regards,

 

SSS

Edited May 9, 2011 by sevenhorsestakes