Service Contract?

[Barmyget]

Hello. I've read a lot of useful posts on CAG forums and now would like to ask a question of my own.

 

I recently started receiving letters from Lowells for a debt to o2 from three years ago. I have several more from them (divorce, myself on incapacity for ten years, wife got me to sign for things when I wasn't really compos mentis,got myself fit enough to work a fact I'm proud of, long story which I'm happy to expand on if needed) and have sent 'prove it' letters to all and am still waiting for CCA's on all after a month. They say the o2 debt is a service contract and are demanding money saying they don't need to send a CCA for a service contract. My questions are

 

1) What letter do I send next to get them to prove it's my debt?

 

2) Is a printed statement with two payments on it proof the debt is mine. No signatures just an old address and my name on the statement cover. Looks like they printed it themselves to be honest.

 

I'm happy to pay if the debts are really mine but it's just strange these should come out of the blue after years. Any advice gratefully received. Apologies if this is in the wrong forum.

 

Dave

[locutus]

Well, CCA is the consumer credit act, and only applies to credit (ie the sale of money) so a mobile phone account does not come under this.

 

As commerce has evolved a long way, you do not need to literally sign a piece of paper to agree a contract, so how mobile suppliers do this is they send your SIM in a plastic envelope with the terms and conditions included, and in using the SIM you are agreeing to the T&C.

 

As your post suggests that there is a good chance that your ex got you to take out contracts when you were not in a fit state to take them out, I would put this point across to the DCA (That you do not remember this contract as you have suffered from some problems in the past)

 

Now, in my opinion, there is very little incentive to pay for a mobile debt anyway. 1st it is probably made up from a lot of charges, and 2nd they have already put a nasty mark on your credit file, and they will not remove this without a lot of arguing.

 

In your place, I'd 1st check to see if the debt was statute barred (over 6 years old in England, 5 years old in Scotland) or close to becoming statute barred. If so ignore them.

 

If the debt is not statute barred and has a long while to go before it is, check your credit file with the credit reference agencies (noddle is a free service from the CRA Callcredit that you can check with, or a free trial of credit expert from Experian CRA... remember to cancel that within the 1st month if you want it to remain free.) and if you have the o2 debt marked on their and you are willing to pay it off, make sure removal of the bad mark is agreed in writing before parting with a penny. If they mark it as "satisfied" it can make your credit rating worse as silly as it sounds... the settled marker can remain on your file for 6 years.

 

If you need further advice on this, just ask

[locutus]

The information you want in your possession before making a decision on how to deal with this is:-

 

1 When did you last make a payment toward this debt?

2 How is the final bill calculated? (You need a full breakdown of this.)

3 Does this show as a "default" on your credit file? What is the date of the default?

[Barmyget]

Thank you for the informative reply. I've signed up to equifax and it shows that

 

1) Equifax shows no payments at all!

2) Apologies for being a numpty but how would I go about getting a breakdown?

3)It is shown as a default in August 2009.

 

I suspect explaining my old circumstances would fall on deaf ears at Lowell having read about them. I'd ignore the cheeky buggers but I'm just worried that bailiffs will land on the doorstep. Thanks again for your help.

 

Dave

[locutus]

You're not being a numpty and definatly no need to apologise Just ask the DCA. Keep communications in writing, ask them how the figure is calculated, how much is phone calls / texts / data and how much is line rental and how much is "cancelation fees" and how much is the DCA's fees. Encorporate that request with the letter found here to formally demand they do not call at your doorstep (as is your legal right).

 

Is the credit file issue bothering you or are you happy to leave it as it is for the next 3 years?

[Human Writes]

There is possibly another route you could use to have them waive all liabilty for the contract, although it would take more effort to argue and prove. One of the cornerstones of contract law is something called capacity, this means that you must understand the contract and have the capability of entering into it of your own free will. You made a throw away comment about not being compus mentis, I don't know if you were serious about this or not, but if you were suffering from a mental illness or condition which meant you were unable to take reasoned decisions about entering into the contract, from a legal standpoint you may not be be able to be held liable for it. People with mental illnesses, even temporary ones from which they have recovered, who didn't understand their contract or were not in their right mind when entering into the contract cannot be held liable for it. You'd likely need medical evidence to support any claim that you were suffering from a mental illness, a doctors letter stating that at the time you were suffering from XYZ and would not have understood the contract would probably be sufficient to get them to drop the stop collections activity, waive the debt, and remove entries from your credit file.

[2Grumpy]

You might do better if you deal with O2 rather than Lowell unless you have had letters to say that the debt has been purchased by Lowell.

 

I agree with Human Writes but if that is the case then I think that you should write to O2 to tell them that this was taken out by your Now Ex Wife getting you to sign documents that she knew that you were not in a fit state to understand whilst you were incapacitated. Mind etc might be able to help

 

As Locutus said, there are likely to be a lot of charges that you shouldn't be asked to pay anyway (disconnection charges etc), so if they insist that it is your responsibility make sure that you get copies of the actual bills so that you know that you are paying only paying for what was used.

[Barmyget]

Thanks for the replies. You've all eased my mind a little knowing the options and ways ahead. I was definitely not in a fit state (which my ex wife knew) for about nine years. I'm a lot better now but the thought of dredging it up and going through doctors/Mind isn't a prospect I relish even though my ex doctor (live in different area now) was fully supportive of me so medical evidence would not be a problem at all.

 

My credit file is trashed anyhow so I'm not bothered about what they do with that, and I'm still financially associated with my ex wife on there even though we've been divorced over two years!?

 

I'm tempted then just to ignore them and if they take me to court I'll contact my ex doctor for the evidence. Even thinking about it all just causes too much stress.

 

Thanks again for the information and advice.

[locutus]

Well, 1 letter saying you deny having the capacity at the time to enter into a contract, and will not communicate with them further gives you a stronger case if it does go to court, as you made them aware that you had issues in the past.

 

to be honest I doubt a DCA would try to take this issue to court even if you didn't have a defense.

[Barmyget]

Ah ok. I'll send them a letter explaining it all then they can decide. I'll even refer them to my ex doctor so they can see for themselves.

 

Thanks again.

 

Dave

[locutus]

No worries. Send the letter then forget about them

 

p.s. they will come back with some BS... most likely with words like "final warning" and "we may take court action if you do not pay us" (and they'll probably even use red ink! ) I feel ignoring them once you have set out your position is the best bet