dca phoning neighbours - discussion sec 40 thread

[teaboy2]

Lol thats one way of putting brigadier

[Fred Bassett]

Whose thread is this by the way?

[BRIGADIER2JCS]

dont know:madgrin:

[theghost]

Where have I ever said they are able to call you every minute of every day? I feel DCAs are able to contact genuine debtors a couple of times a week if they are ignoring them - that to me is justifable. Where they have contacted an innocent person then it could quite clearly be harassment after 3-4 calls. You seem to have a misunderstanding of what section 26 is.

 

They also have something called a 'due dilligence defence' which is why it is critical to get the facts of the matter in each case and not just jump to conclusions like so many of you seem to do.

 

DCAs can be prosecuted under the CPUTR.

 

Why do you seem to think I am reffering to the CPUTR as somesort of protection for DCA?

 

The CPUTR offer much tougher penalties AGAINST DCAs than the AJOA.

 

If you dislike DCAs then you should be HAPPY that the CPUTR applies over the AJOA.

 

BTW there is a lot more to the CPUTR than schedule 1 - if hey cannot be doen for somehting i nthat scehdule there are other areas to be looked at.

 

Get a grip. I am not wasting any more time on this.

[BRIGADIER2JCS]

[theghost]

The CPUTR doesnt 'allow' things' it disallows things.

 

It sounds like they may have what they wanted out of the neighbour anyway.

 

Also I had a quick look at the DPA s55. Are you sure an offence exists if the neighbour provides information not held on a computer or written format?!?

[bernardski]

Where's Casper (the friendly ghost) tonight?? I prefer reading his comments than the plain argumentative dribble coming from theghost (the not so friendly ghost i may add)

 

Sorry if i have caused offence with this but as usuall you seem to have completely hijacked the thread and after reading the whole thing twice im none the wiser so at this point i feel sorry for vtr80 who i imagine came on for guidance and left with 1 hell of a blood y headache and a feeling of being forgotten!!

[teaboy2]

Friggin hell. Where have I ever said they are able to call you every minute of every day? I feel DCAs are able to contact genuine debtors a couple of times a week if they are ignoring them - that to me is justifable. Where they have contacted an innocent person then it could quite clearly be harassment after 3-4 calls. You seem to have a misunderstanding of what section 26 is.

 

They also have something called a 'due dilligence defence' which is why it is critical to get the facts of the matter in each case and not just jump to conclusions like so many of you seem to do. Sorry but is it not for the DCA to get the facts prior to issuing proceedings? yes it is. So such a defence would fail if found they were acting unreasonably or their actions were not justifiable. So please do not pass the buck on to us Caggers who advise people on their issues. Its not for the Debtor to prove anything but for the DCA/Creditor to prove the facts.

 

DCAs can be prosecuted under the CPUTR. Yes and any other leglisation too.

 

Why do you seem to think I am reffering to the CPUTR as somesort of protection for DCA? As your using it to tell people that they no longer have protection from persisten and/or excessive phone calls from DCA's under section 40, when they do. A breach of section 40 is a breach of the CPUTR.

 

The CPUTR offer much tougher penalties AGAINST DCAs than the AJOA. YES I KNOW, BUT IT DOESN'T MEAN THAT SECTION 40 AOJ NO LONGER APPLIES AND SHOULD NOT BE USED, THEY BOTH APPLY.

 

If you dislike DCAs then you should be HAPPY that the CPUTR applies over the AJOA.

 

BTW there is a lot more to the CPUTR than schedule 1 - if hey cannot be doen for somehting i nthat scehdule there are other areas to be looked at.

 

Get a grip. I am not wasting any more time on this.

 

Ohh so now its personal insults, i have been saying what you have said about phone calls all along, you have just back tracked from saying that section 40 does not apply (even though its a criminal offence) and now say that the same applies under CPUTR but offers greater punishments which i agree it does, but if you are in breach of section 40 then your in breach of the CPUTR also. You were implying they were entitled to call the debtor as many times they wanted to as under section 26 they are were allowed to, where above your saying the opposite to what you were implying before. Either that our we have both misunderstood each other completely

 

Yes there is more to the CPUTR than schedule 1 but it is section 26 of shedule 1 that is relevant to the argument here.

 

As for my understanding of section 26, well it states in black and white that making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media are deemed as an unfair commerical practice, except in circumstances and to the extent justified to enforce a contractual obligation. Which a DCA is not a party to a contract and therefore have no right to enforce a contractual term and therefore can not make persistent unwanted telephone call, faxes and or emails.

 

I would much rather have the DCA convicted for harassment as a result of section 40 administration of justice and convicted for use of unfair commercial practices amounting to harassment. Also when it comes to sec 40 the criminal justice act 1982 c48 section 35 applies in regards to ss 4 of section 40 AOJ, so the punishment for both is more or less the same. But id rather they be convicited for harassment so then damages can be claimed under the protection from harassment act 1997, which would be hard to claim if under unfair commercial practices under the CPUTR. Plus unlike with the CPUTR they would not have the due deligence defense for harassment. So the harassment leglisation is much more favourable for the debtor, then soley relying on the CPUTR which allows them the due diligence defence

 

As for "The CPUTR doesnt 'allow' things' it disallows things." thats not the impression i got from your earlier post both in this thread or others, where you were clearly implying that under section 26 they were allowed to by execption of enforcing a contractual term to make excessive phone calls. Perhaps if you had been clearer from the start as to the view you posted in the qoutes above, then we would not have needed this debate. Though given what you have said, implied or stated in earlier posts, i do feel you have back tracked, though thats a matter of opinion.

 

As for DPA, well if the person does not have permission to disclose your personal data then doing so without your permission is a breach of data protection act. And yes the DPA includes how data is obtained not just how it is held. Sechdule 1 Part 2 section 1 ss2 makes it clear the person providing the information is:-

 

Subject to paragraph 2, for the purposes of the first principle data are to be treated as obtained fairly if they consist of information obtained from a person who—(a)is authorised by or under any enactment to supply it, or

(b)is required to supply it by or under any enactment or by any convention or other instrument imposing an international obligation on the United Kingdom.

So unless the data subject has given permission for his neighbour to provide them such data, then such method of obtaining of data is unlawful.

Edited June 28, 2011 by teaboy2

[theghost]

I believe the CPUTR offers protection for all types of debtors from harassment.

 

What section 26 says is that you can keep calling people to enforce a contractual obligation if its justifiable - therefore it 'allows' you to call a debtor but it 'disallows' you from harassing people. Lets take your view and say that there is no contractual obligation and under your theory section 26 cannot apply - other parts of the CPUTR can apply therefore that does not mean you default to the AJOA. The crucial thing is if the activities are a commercial practice within the meaning of the CPUTR and there is no breach of the CPUTR then you cannot then look at the AJOA because the CPUTR quite clealy says if it is a commercial practice then the AJOA doesn't apply. So you could have something that is NOT an offence under the CPUTR but cannot be taken under the AJOA because it is a commercial practice under the CPUTR.

 

Where we seem to disagree I think it whether all DCA activities fall within the definition of a comemrcial practice.

 

The purpose of the CPUTR is to harmoise and reduce laws - not to have a 2 tier system where you revert back to old legislation. And in a previous thread I pointed out that the Directive that the CPUTR comes from quite clearly mean to encompass contractual and non contractual commercial practices.

 

Because of the way CPUTR works not all breaches under the AJOA would necessarily translate as breaches as CPUTR (though that interpretation of wording is down to a court ultimatley) - therefore there may well be gaps in the law now - but my understanding of the CPUTR is that it offers all around better protection so its probably unlikely.

[teaboy2]

I believe the CPUTR offers protection for all types of debtors from harassment.

 

What section 26 says is that you can keep calling people to enforce a contractual obligation if its justifiable - therefore it 'allows' you to call a debtor but it 'disallows' you from harassing people. Lets take your view and say that there is no contractual obligation and under your theory section 26 cannot apply - other parts of the CPUTR can apply therefore that does not mean you default to the AJOA. The crucial thing is if the activities are a commercial practice within the meaning of the CPUTR and there is no breach of the CPUTR then you cannot then look at the AJOA because the CPUTR quite clealy says if it is a commercial practice then the AJOA doesn't apply. So you could have something that is NOT an offence under the CPUTR but cannot be taken under the AJOA because it is a commercial practice under the CPUTR.

 

Where we seem to disagree I think it whether all DCA activities fall within the definition of a comemrcial practice.

 

The purpose of the CPUTR is to harmoise and reduce laws - not to have a 2 tier system where you revert back to old legislation. And in a previous thread I pointed out that the Directive that the CPUTR comes from quite clearly mean to encompass contractual and non contractual commercial practices.

 

Because of the way CPUTR works not all breaches under the AJOA would necessarily translate as breaches as CPUTR (though that interpretation of wording is down to a court ultimatley) - therefore there may well be gaps in the law now - but my understanding of the CPUTR is that it offers all around better protection so its probably unlikely.

 

I see where your coming from, but as a DCA is not directly connected to the promotion, sale or supply of a product to or from any debtors, i.e. not named in the contract as a party to it, then they have no legal right to operate it that regards to enforcing the terms contract under commercial practice as defined by the CPUTR which is stated below. Saying that they can is in my view the same as saying i can call other companies customers up demanding payment.

 

“commercial practice” means any act, omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a commercial transaction (if any) in relation to a product;

 

DCA's are not connected to the sale, supply or promotion of a product i might add. So i think the definition applies only to commercial practice used to sell, promote and supply products via cold calls, marketing and after sales calls - not debt collection were no selling, marketing, promotion or supply of a product is done by them.

 

I think we need to ascertain what is ok as commercial practice and what is not, so i would say its ok to call 1 or 2 times week to ask that they make repayment to the creditor (not to DCA as they are not entitled to any monies under the contract) and not demand full payment, when a) it is clear or they have been inform by the debtor they can not afford it and/or b) the debtor already has a repayment plan with the creditor (in which case it would not be an ok commercial practice but deliberate harrassment) or c) they have been asked to communicate in writig only.

 

so is commerical practice defined as demanding full payment, calling more then once each day for the same reason, threatening court action if person can not make a repayment or refuses etc - no i think that falls outside of what is defined as standard commercial practice but is deliberate harassment comitted knowingly by the DCA. As in such cases section 3a of section 40 does not in my opinion apply as their actions were not inline with commercial practice, unless harassment is now a commercial practice.

 

So i do not belive they are connected under commercial practice defined by the CPUTR

 

Also, the CPUTR would not apply if the person being harassed is not the debtor either as they are therefore not a consumer connected to the trader/creditor.

 

Thats my view of it, so i think we both agree in some respect but just not on section 40 or the DCA being protected under the definition of commercial practices. If the definition included pursuing payment, then yes it would - but it doesn't say that under the definition.

 

I will request the site team move all our posts regarding this issue from this thread so everyone will be free to debate this without hijacking this thread any further. As i think the definition of commercial practice defined in the CPUTR and whether it allows room for DCA's to operate the way they do and therefore not being in breach of section 40 is itself worthy of being debated.

Edited June 29, 2011 by teaboy2

[theghost]

I agree the posts should be removed to another thread.

 

Your question on whether the practice falls within the definition of commercial practice is discussed in detail on page 28 onwards of this document and explains it better than I could:

 

http://www.justice.gov.uk/lawcommission/docs/cp199_consumer_redress.pdf

[firstship]

Interesting and volatile discussion,what has happened to VTR80s original post,we need this back on track

 

FS

[BRIGADIER2JCS]

Agreed.

[teaboy2]

well i did report the thread to the site team asking them to move all posts on the debate to a thread of their own, which will have brought VTR80's thread back to where it was prior to the debate, but looks like nothing has been done about it yet. Though am not going to respond futher on the debate until its in its own thread.

[brokebutnotbeatn]

Hear hear Fred

[The Debt Star]

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.

 

sorry, am I missing somehting here as I cannot see what is wrong with this post at all??

[BRIGADIER2JCS]

Cgbotted ds

[teaboy2]

I agree the posts should be removed to another thread.

 

Your question on whether the practice falls within the definition of commercial practice is discussed in detail on page 28 onwards of this document and explains it better than I could:

 

http://www.justice.gov.uk/lawcommission/docs/cp199_consumer_redress.pdf

 

Thanks for the link Ghost, but it would appear that it is all speculative and not confirmed, so its not clear as to whether debt collection practices used to collect debts come under commercial practices, or as to a clear meaning of the definitions of commercial practice. They refer to debt collection as after sales calls, when they are not after sales calls in my opinion but debt enforcement calls. So there is still alot of uncertainty about the definitions under the CPUTR - Though i will have a read through the entire documents at a later stage as i have only browsed through the parts relevant.

 

P.s. Thanks DX from moving the posts in to there own discussion thread.

[BRIGADIER2JCS]

As in criminal law alternative ''charges' can be raised using ''superceded '' legislation that lies still on statute and not repealed.

[unclebulgaria67]

Just to point out that ghost has a point regarding calls to neighbours. There was a thread on here a few months back, with a copy of an OFT response. They said it was perfectly acceptable for debt collectors and/or their tracing agents to call neighbours to check who lived at an address, provided they did not disclose the purpose of their phone call or anything which would be confidential or cause embarassment to the debtor in question.

 

I find this difficult to believe, as it could cause people to be suspicious of such phone calls or for gossip amongst neighbours about the house in question . I had this with debt correspondence to my address regarding a relative who had never lived there. Mucky Hall phoned a neighbour I did not even know, as they live down the road. The neighbour mentioned this in passing a month or so later, saying that they thought it was highly suspicious, to the extent they thought about phoning the police to report the phone call. I phoned muckies compliance manager and gave him a right earful. If I had the funds available and it was worth it, I would have sued them. No point in contacting the OFT as they think it is acceptable.

[BRIGADIER2JCS]

There are any number of ''authorised'' tracing agents who can ask for information solicitors agents are used in divorce cases,

tracing agent used by hire/rental companies papers for GAIN records, solicitors agents serving court papers, or even benificiaries

of wills, I use them some times to elicit information myself.

Edited June 30, 2011 by BRIGADIER2JCS

[Fred Bassett]

There are any number of ''authorised'' tracing agents who can ask for information solicitors agents are used in divorce cases,

tracing agent used by hire/rental companies papers for GAIN records, solicitors agents serving court papers, or even benificiaries

of wills, I use them some times to illicit information myself.

 

Brigadier, I hate to be pedantic but the word 'illicit' gives a totally different meaning to your post than the word 'elicit', which is the one I imagine you wanted to use.

 

Regards.

 

Fred

[BRIGADIER2JCS]

Just a typo I have nerve damaged hand.

[DonkeyB]

I think Harrison v Link makes it very clear that the issue most certainly CAN be one of harassment under s40.

 

http://www.bbc.co.uk/news/business-13199797

[brokebutnotbeatn]

Calling a neighbour when you have not been able to make contact with the occupant is one thing, but doing so when contact has been made and after you have been told not to call but to write, is simply malicious and designed to cause embarrassment - why do it otherwise?