dca phoning neighbours - discussion sec 40 thread

[theghost]

I believe they can phone up your neighbour and ask them if you live next door or where you are now. They should not ask your neighbour to pass on a message.

 

They should not tell your neighbour that you owe money but if your neighbour does a phone number check then there is not a lot they can do.

 

I am fairly sure I read somewhere that the ICO or OFT had cleared the way for DCAs to ring neighbours as long as they were cautious with what they said.

 

If you are sure the DCA broke the rules then report them to Consumer Direct.

[theghost]

If the way you have described it is accurate then it sounds like they are in breach of the DCG.

 

Could it be that because they are phoning you and you ot picking up they are still trying to trace you by calling your neighbours.

 

How and when did you tell them to write to you only?

[DonkeyB]

I believe they can phone up your neighbour and ask them if you live next door or where you are now. They should not ask your neighbour to pass on a message.

 

They should not tell your neighbour that you owe money but if your neighbour does a phone number check then there is not a lot they can do.

 

I am fairly sure I read somewhere that the ICO or OFT had cleared the way for DCAs to ring neighbours as long as they were cautious with what they said.

 

If you are sure the DCA broke the rules then report them to Consumer Direct.

 

Please show me where the OFT said this kind of action was OK.

[brokebutnotbeatn]

the ghost - i am getting really fed up reading your replies which appear to me to be deliberately misleading and inaccurate and designed to cause worry or throw people off track. It is clearly not ok for a DCA to be phoning neighbours and your suggestion that it is is mischievous I'm all for open debate but you should call it a day now IMHO. Thanks.

[Revenant]

If the way you have described it is accurate then it sounds like they are in breach of the DCG.

 

Could it be that because they are phoning you and you ot picking up they are still trying to trace you by calling your neighbours.

How and when did you tell them to write to you only?

 

 

You made a similar remark in another thread

 

I have assigned ring tones for all those I've given my number to and hardly ever answer an unknown caller

 

The various guidelines state that DCA's must not act in a way to embarrass the person they're trying to contact and they must be clear as to the who/where/why aspect of the contact so that leaves them in a difficult position that leads to giving over misleading information re having mail

 

Further to BBNB's post at 9 I too feel a little uncomfortable that your comments tend to lean towards the DCA's perspective of what's wrong/right

 

Regards

 

R

[Huff&Puff]

Any actions that DCAs take is perfectly OK according to The Troll Ghost

[teaboy2]

yeah apparently section 40 of the administration of justice act does not apply in regards to harassment. According to ghost, because they are enforcing a contractual term they are entitled to phone you excessively - clearly completely forgetting about the reasonableness test and the fact the DCA has no rights under any contract they are trying to enforce as no contract exist between Debtor and DCA, even when the debt is sold to DCA no contract exist as it is terminated at the point of sale.

 

As for this thread, no they should not be calling your neighbour, nor do they have the right to process your neighbourts data without his/her permission, so they are in breach of the data protection act for processing your neighbours data without his/her consent.

[Dial Square]

yeah apparently section 40 of the administration of justice act does not apply in regards to harassment. According to ghost, because they are enforcing a contractual term they are entitled to phone you excessively.

 

That's exactly what Cabot wrote to me in response to my harassment letter!

[theghost]

The various guidelines state that DCA's must not act in a way to embarrass the person they're trying to contact and they must be clear as to the who/where/why aspect of the contact so that leaves them in a difficult position that leads to giving over misleading information re having mail

 

Further to BBNB's post at 9 I too feel a little uncomfortable that your comments tend to lean towards the DCA's perspective of what's wrong/right

 

 

Most of my posts are not concerned with what we think is right or wrong - its about what is legally allowed and what is not legally allowed.

 

DCA, like any citizen, can do whatever they wnat as long as they are not brekaing any laws or rules (which could affect their credit licence).

 

There is nothing illegal about phoning someone up out of the blue and asking them if thy know where their neighbour is.

 

The main piece of legislation they can breach is the DPA by giving away information about the debtor. They will tend not to do this - rather they will try and verify if the person is still at that address.

 

disclosing or threatening to disclose debt details to third parties unless legally entitled to do so

 

acting in a way likely to be publicly embarrassing to the debtor either deliberately or through lack of care

 

Theregotr they can get away with phoning someone up and asking if someone lives next door. What they cannot do is tell them they are a DCA and chasing that perosn. if that person does a 1471 and realises its DCA it is questionnable whether the DCA can be held to account for that. The DCA cannot withhold their number.

 

If you have any statement to the contrary I will be happy to admit I am wrong.

 

EDITED TO ADD - if they HAVE breached the DPA then the OP should report them. But only if sure of course. Make sure your neighbour remembers the exacted wording that was used.

[teaboy2]

That's exactly what Cabot wrote to me in response to my harassment letter!

 

Typical crabot, they like thinking they are the judge and jury - i guess they forget they weren't a named party to any contract or have your permission to process your data.

[theghost]

According to ghost, because they are enforcing a contractual term they are entitled to phone you excessively.

 

Only thing is - I didn't actually say that - though I will not bother going over it again in this thread.

[teaboy2]

Most of my posts are not concerned with what we think is right or wrong - its about what is legally allowed and what is not legally allowed.

 

DCA, like any citizen, can do whatever they wnat as long as they are not brekaing any laws or rules (which could affect their credit licence).

 

There is nothing illegal about phoning someone up out of the blue and asking them if thy know where their neighbour is.

 

The main piece of legislation they can breach is the DPA by giving away information about the debtor. They will tend not to do this - rather they will try and verify if the person is still at that address.

 

disclosing or threatening to disclose debt details to third parties unless legally entitled to do so

 

acting in a way likely to be publicly embarrassing to the debtor either deliberately or through lack of care

 

Theregotr they can get away with phoning someone up and asking if someone lives next door. What they cannot do is tell them they are a DCA and chasing that perosn. if that person does a 1471 and realises its DCA it is questionnable whether the DCA can be held to account for that. The DCA cannot withhold their number.

 

If you have any statement to the contrary I will be happy to admit I am wrong.

 

Err they not allowed full stop, section 55 DPA Unlawful obtaining etc. of personal data. it is unlawful to ask someone for another person personal data when they do not have the data holders (alleged debtor) permission to give such personal data. So they are committing an offence for trying to unlawfully obtain the data from someone that does not have the legal authority to disclose such data. Which i might add also puts them in breach of section 1.2 of OFT guidelines Not to mention 2.5 and 2.6J

The Communications Act 2003 sets out the law for nusiance phone call's and DCA's cold calling neighbours is a nusinace phone call. Not to mention if they continue to call the neighbour then is is harassement under section 40 of the administration of justice act.

[teaboy2]

Only thing is - I didn't actually say that - though I will not bother going over it again in this thread.

 

You where arguing that as they were not in breach of section 26 of CPUTR then they were not in breach of section 40 AOJ and as such section section 40 no longer applied, as section 26 of CPUTR states they are entitled to make persistent (thought persistent and excessive are 2 different matters i.e. daily and more than once a day is excessive in my opinion, especially when as to communicate in writing only) phone calls to enforce a contract term. Sorry but you were either saying that or talking a of some unknown law not under section 26.

 

so i can not see you saying anything but that am afraid, but i agree we should not go over it here in this thread.

Edited June 28, 2011 by teaboy2

[Fred Bassett]

Most of my posts are not concerned with what we think is right or wrong - its about what is legally allowed and what is not legally allowed.

 

DCA, like any citizen, can do whatever they wnat as long as they are not brekaing any laws or rules (which could affect their credit licence).

 

There is nothing illegal about phoning someone up out of the blue and asking them if thy know where their neighbour is.

 

The main piece of legislation they can breach is the DPA by giving away information about the debtor. They will tend not to do this - rather they will try and verify if the person is still at that address.

 

disclosing or threatening to disclose debt details to third parties unless legally entitled to do so

 

acting in a way likely to be publicly embarrassing to the debtor either deliberately or through lack of care

 

Theregotr they can get away with phoning someone up and asking if someone lives next door. What they cannot do is tell them they are a DCA and chasing that perosn. if that person does a 1471 and realises its DCA it is questionnable whether the DCA can be held to account for that. The DCA cannot withhold their number.

 

If you have any statement to the contrary I will be happy to admit I am wrong.

 

EDITED TO ADD - if they HAVE breached the DPA then the OP should report them. But only if sure of course. Make sure your neighbour remembers the exacted wording that was used.

 

 

We have already established that contact has been made with the DCA, so let's be honest about this. The ONLY reason for a DCA to contact the neighbour under these circumstances is to cause embarrassment enough that the person concerned will ring the DCA whereupon he/she can be harassed and bullied. It is not good enough to say that they gave away no details and didn't fall foul of the DPA. If somebody rang me about my neighbours, the first thing I'd to is ring 1471, get the number and google it to see who it was calling. If that then showed up as a debt collector I'd know that my neighbour was being chased. It is a nasty and vile tactic and should be subject to very heavy penalties for those who do it.

[BRIGADIER2JCS]

There seems to be a trend to creating arguments over points of law being generated by certain parties,

this IMHO detracts from the help being offered to the OP's, if the caggers concerned are qualified legal experts then fine,

but IMHO it is detrimental to the purpose of CAG.

 

I will take any censure, but wont withdraw my statement.

[theghost]

Err they not allowed full stop, section 55 DPA Unlawful obtaining etc. of personal data. it is unlawful to ask someone for another person personal data when they do not have the data holders (alleged debtor) permission to give such personal data. So they are committing an offence for trying to unlawfully obtain the data from someone that does not have the legal authority to disclose such data. Which i might add also puts them in breach of section 1.2 of OFT guidelines Not to mention 2.5 and 2.6J

The Communications Act 2003 sets out the law for nusiance phone call's and DCA's cold calling neighbours is a nusinace phone call. Not to mention if they continue to call the neighbour then is is harassement under section 40 of the administration of justice act.

 

You better tell the OFT then - they have granted credit licence to a business whose sole function it is to trace debtors - mostly by use of the phone - what would be the point if they couldnt ask some of the questions you have said are unlawful?

 

You where arguing that as they were not in breach of section 26 of CPUTR then they were not in breach of section 40 AOJ and as such section section 40 no longer applied, as section 26 of CPUTR states they are entitled to make persistent (thought persistent and excessive are 2 different matters i.e. daily and more than once a day is excessive in my opinion, especially when as to communicate in writing only) phone calls to enforce a contract term. Sorry but you were either saying that or talking a of some unknown law not under section 26.

 

I said if the CPUTR applied and a regulation 26 offence was not being commited then a AJOA offence couldnt be comitted. So yes, if the number of contacts is not unjustifiable there is no offence or 'harassment'. We probably have different views on what a justifiable number of calls is.

 

We have already established that contact has been made with the DCA, so let's be honest about this. The ONLY reason for a DCA to contact the neighbour under these circumstances is to cause embarrassment enough that the person concerned will ring the DCA whereupon he/she can be harassed and bullied. It is not good enough to say that they gave away no details and didn't fall foul of the DPA. If somebody rang me about my neighbours, the first thing I'd to is ring 1471, get the number and google it to see who it was calling. If that then showed up as a debt collector I'd know that my neighbour was being chased. It is a nasty and vile tactic and should be subject to very heavy penalties for those who do it.

 

The Op says they sent in a CCA request 3 days ago. Presumably the DCA has called and or written to her before with no positive response - hence calling the neighbour. We don't know if the Op has contacted them previously - and if the CCA is her first contact back and it was only sent 3 days previously then perhaps CQ havent recieved it yet?

 

Depending on the timeline it could be a tad hasty on Capquests part to send a letter to the Op and then call the neighbour within say a week - which wouldnt give the Op much time to respond. We dont know the timelines though based on what has been posted in the Op.

[theghost]

There seems to be a trend to creating arguments over points of law being generated by certain parties,

this IMHO detracts from the help being offered to the OP's, if the caggers concerned are qualified legal experts then fine,

but IMHO it is detrimental to the purpose of CAG.

 

I will take any censure, but wont withdraw my statement.

 

Is the purpose of CAG not to contain decent advice for readers?

 

One of the Ops questions was whether the DCA were allowed to do what they did - I suggested they could possibly - depending on what was said..

 

If posters want to accuse the company of illegal acts then they should be able to back up their claims instead of potentially providing shoddy info for the Op to take action on.

[teaboy2]

You better tell the OFT then - they have granted credit licence to a business whose sole function it is to trace debtors - mostly by use of the phone - what would be the point if they couldnt ask some of the questions you have said are unlawful? There sole function is to collect debts, not to trace debtors, that what tracing agent companies are for along with the electoral roll, phone directories and credit reference agencies. It is also not their sole purpose to chase debtors by phoning every tom dick and harry in that live nextdoor to or in the nighbourhood of the alledged debtors last known address. So is it unlawful to ask a person not legally entitled to diclose another person personal details, yes it is as by doing so you are asking them to breach the data protection act.

 

 

 

I said if the CPUTR applied and a regulation 26 offence was not being commited then a AJOA offence couldnt be comitted. So yes, if the number of contacts is not unjustifiable there is no offence or 'harassment'. We probably have different views on what a justifiable number of calls is. No you quite plainly stated that the AOJ argument no longer applied, you are only now starting to back track on the issue. The use of the argument itself was in a letter informing them to communicate in writing only and if they continued to call you they would be deemed to be in breach of section 40 AJO. So once you have asked them to not contact you by phone and they continue to do so, then they are in breach of section 40. Plus if they are not named partys to any contract then they are not entitled to enforce it on you nor have you given them permission to process your data either. Though i accept we have different views of what amounts to excessive amounts of phone calls

 

 

 

The Op says they sent in a CCA request 3 days ago. Presumably the DCA has called and or written to her before with no positive response - hence calling the neighbour. We don't know if the Op has contacted them previously - and if the CCA is her first contact back and it was only sent 3 days previously then perhaps CQ havent recieved it yet? Agreed, it is a bit tight on time, though i do not agree that they should be calling the neighbour.

 

Depending on the timeline it could be a tad hasty on Capquests part to send a letter to the Op and then call the neighbour within say a week - which wouldnt give the Op much time to respond. We dont know the timelines though based on what has been posted in the Op.

 

Response in red above, i suggest we just agree to disagree on the section 40 argument for the sake of the thread

[theghost]

I stated the AOJA offence no longer applies to any for of consumer debt collecting and I believe the Law Comission backs me up on that.

 

ANYWAY - OP are you going to report the DCA on this occasion?

[teaboy2]

I stated the AOJA offence no longer applies to any for of consumer debt collecting and I believe the Law Comission backs me up on that.

 

ANYWAY - OP are you going to report the DCA on this occasion?

 

Make you mind up ghost, either it does or it doesnt apply - Personnally from my experience and knowledge, yes it does apply if they are not a contractual party or make excessive amounts of phones calls and it applies if they continue to call you when you have asked them not to but to communicate in writing only which is exactly what the telephone harassment letter does.

 

Also please point me to the legalisation which states that section 40 does not apply to debt collection? Not even section 26 of the CPUTR says that.

[theghost]

If you wanna carry on the debate on harassment then start a new thread. Will be happy to contribute.

[teaboy2]

Theres nothing for me to debate with you, i know what the law is so i have no need to debate it with you, unless you want to continue to misinform people of the law in regards to section 40 of the AOJ. I have already stated that we should agree to disagree on this, plus i informed you previously in an other thread that the very point you have raised have already been debated on CAG and found that it does not mean section 40 no longer applies but simply strenghens its.

 

Now i repeat my question that you did not answer - please point me to the legalisation which states that section 40 does not apply to debt collection? - If you can not answer that to back up your earlier claim then i suggest you do not reply to this post or anymore of my posts regarding the issue.

Edited June 28, 2011 by teaboy2

[theghost]

No legislation says the AJOA does not apply to debt collection.

 

When the CPUTR were introduced they amended the AJOA to say that if something that was previously covered by the AJOA falls winthin the scope of a 'commercial practice' within the CPUTR then the AJOA no longer applies for that case.

 

In the last thread I pointed you to the law commisions website where they had a document which suggest the CPUTR applies to both contractual and non contractual issues. Therefore a DCA chasing the wrong person would fall within the scope of the CPUTR even though there is no contract.

 

S 40-1 of the AJOA therefore quite clearly (and it says it in black and white within the legislation) 'does not apply' where the CPUTR can apply.

[teaboy2]

No legislation says the AJOA does not apply to debt collection.

 

When the CPUTR were introduced they amended the AJOA to say that if something that was previously covered by the AJOA falls winthin the scope of a 'commercial practice' within the CPUTR then the AJOA no longer applies for that case. Sorry but execption in section 26 is for enforcing contractual terms - so no contract with company attempting to enforce a contractual term means they are not entitled to enforce it and can not use section 26 to hide behind. Same for if they are acting as a commerical practice for non contractual matters. What your saying is they are entitled to call you every minute of the day whether they have a contract with you or not, whcih would mean anyone can call you every minute of the day - for example sales calls are commercial practice too. Sorry but i find that as harrasment and breach of section 40

 

In the last thread I pointed you to the law commisions website where they had a document which suggest the CPUTR applies to both contractual and non contractual issues. Therefore a DCA chasing the wrong person would fall within the scope of the CPUTR even though there is no contract.

 

S 40-1 of the AJOA therefore quite clearly (and it says it in black and white within the legislation) 'does not apply' where the CPUTR can apply. Yes but as they are not contractual parties they are not entitled to enforce the contractual terms and are therefore acting outside of commerical practice inregards to the legal entitlement to the contract term they are enforcing or debt they are seeking payment off

 

Another point is that inorder to not be inbreach of section 26 CPUTR, then they must show their actions were jusitified and only way they can do that is by proving the person they were contacting was the debtor, though still if the debtor has asked to for communication in writing only then the call will be deemed as unwanted as under section 26, and therefore a breach of section 40.

 

Section 26 appears under the schedule 1 named Commercial practices which are in all circumstances considered unfair - thats should be a clue to you as to it being unfair to persistently make unwanted telephone, fax and emails. Their only defense for doing so is to justify there actions by proving the debt exists, that they had the right to enforce it, that the person they were calling was the alleged debtor, and that the calls were not execissive and that they were justified in calling the alleged debtor when they have already requested communication in writing only - if they fail on any one of those points then they are in breach of section 26. They would also have to show that the reason for each call was reasonable, i.e. asking for full payment is not in my view reasonable when you have already made it clear you can not afford it or when like alot of debtors they are already in a repayment plan with the creditor, and therefore such unwanted calls can not be jusitified or deemed as reasonable nor can calls when they are abusive of make threats of legal action which is very common in about 95% of cases.

 

So yes section 40 does still apply. Only time it does not apply is if the reason for call was reasonable and justified and not made when already requested to communicate in writing only, which is what the telephone harassment letter requests.

Edited June 28, 2011 by teaboy2

[BRIGADIER2JCS]