Can I take legal action against DCA's - Marlins/Lowel/1st credit/aptiv kapital - debts not mine on CRA file

[Peterbard]

I agree with Brigadier on this one. You CAN claim damages, but I would go about it in a slightly different way.

The reason for claiming damages is what matters and is directly relevant to this case.

 

Personally, I would claim for harassment, time taken to deal with correspondence at a set rate, costs for posting, photocopying, etc.

 

It's worked for me in the past and I immediately (by return post) received a compensatory cheque on the understanding that I would not persue that one instance further.

I'd laid out my claim clearly, and said:

 

"I hereby give you notice that, should you continue to write, erroneously asserting that I am liable for a debt that is not mine as I have never had dealings with the original creditor that you claim, I will have no alternative but to invoice your company for compensation for undue distress caused due to formulating and sending replies to such letters, plus necessary personal expenses incurred.

Please accept this letter as full and adequate advance warning of my intended charges. Future invoices to your company (per letter) will be broken down as follows: (give breakdown)

 

Oh, and I told them that late payment of invoices would incur a standard £12 late payment fee plus interest at 26%

 

Certainly thraten them over breach of the DPA too - reporting to all regualtory bodies - and carry out the threat.

Hope that helps.

 

H. x

 

 

 

Interesting what legal cause of action would you use for your claim, I take it it was estimated/ general damages rather than an actual liquidated sum assessment.

 

There has been several high court claims that have notably failed in claiming general damages which I could point you to so I think more details would be a great help.

 

Did you use the statutory breach for cause of action or was it action upon tort if so which one, details please.

[Halibutt]

Simply wrote, stating I'd persue non-payment through small claims court with specific reference to harassment.

 

"Also, as a result of your company’s continued unsubstantioated/proven link with me, I refer you to my letter of xx/xx/xx, in which I had no alternative but to formally request that your company ceased any and all contact with me and my family forthwith, due to the frequency of communications, both by telephone and in writing - dates and times of which have been noted and a full and complete record retained. With reference to this, I feel I must also draw your attention to the recent case of MBNA v Harrison and the subsequent judgement by High Court Judge Nicholas Chambers QC, as certainly, the aforementioned calls by your company, over a number of weeks, were the cause of considerable and relentless personal distress, both to me and my family.

I quote directly from the aforementioned judgement by Judge Chambers:

“(These) calls were a form of torture, oppressively frequent in amount and often without attribution to an identifiable number.”

 

Went on to point out that the fine imposed in the above case was set at £50k. That stopped any harassment in its tracks.

 

I think that if you state your objection clearly, show you know what THEY should or shouldn't be doing, then you can rattle them a bit. Obviously, if in Stockport's case, it went to court, he could easily prove that none of these debts could be linked to him/the DCA couldn't prove they were. In other words, a DCA is highly unlikely to wish to consider court action when they'd be on a hiding to nothing.

[Halibutt]

Basically used a vague legal precedent, small claims rather than High Court and stated I WOULD go through with it. They dropped it like a hot potato as it would have meant compensation and both my and their court costs. Oh, and my harassment claim was for the nominal sum of a penny - everything else mounted up to over £200 in proveable costs (including my time taken to correspond at a fixed rate)

[Peterbard]

Simply wrote, stating I'd persue non-payment through small claims court with specific reference to harassment.

 

"Also, as a result of your company’s continued unsubstantioated/proven link with me, I refer you to my letter of xx/xx/xx, in which I had no alternative but to formally request that your company ceased any and all contact with me and my family forthwith, due to the frequency of communications, both by telephone and in writing - dates and times of which have been noted and a full and complete record retained. With reference to this, I feel I must also draw your attention to the recent case of MBNA v Harrison and the subsequent judgement by High Court Judge Nicholas Chambers QC, as certainly, the aforementioned calls by your company, over a number of weeks, were the cause of considerable and relentless personal distress, both to me and my family.

I quote directly from the aforementioned judgement by Judge Chambers:

“(These) calls were a form of torture, oppressively frequent in amount and often without attribution to an identifiable number.”

 

Went on to point out that the fine imposed in the above case was set at £50k. That stopped any harassment in its tracks.

 

I think that if you state your objection clearly, show you know what THEY should or shouldn't be doing, then you can rattle them a bit. Obviously, if in Stockport's case, it went to court, he could easily prove that none of these debts could be linked to him/the DCA couldn't prove they were. In other words, a DCA is highly unlikely to wish to consider court action when they'd be on a hiding to nothing.

 

 

I am aware of Harrison Vs link.

It was a good win, think the behavior of link was a cumulative factor in the judgment together with a section 62/63 breach.

 

I don't remember anything about a "fine" though http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html

 

In fact link were not ordered to pay back any of the sums already paid off the loan but the judge ordered the balance written off.

 

Not sure about costs.

 

Best get these things right if you are going to send them to creditors, I think

 

I

Edited July 17, 2013 by Dodgeball
Reference removed.

[Halibutt]

Can't remember where I found the figure, but it was a CAG link to the judgement in full and an article in one of the industry online magazines.

It worked, anyway, but yes, I take your point about being solid on the facts...

[Peterbard]

Apologies for my posts appearing out of place - they ceased to make much sense in the moving. lol

 

I agree a realistic approach in court could work, but the OP really needs to decide on the primary objective here; is it to get compensation by suing the DCA, or is it to get the record put straight.

 

Depending which is the main objective would dictate my course of action, as each would be different.

[BRIGADIER2JCS]

Rubbish pussy footing around DCAs that are acting in this way it a total waste of time the OP poor fellow has had scenario for far too long for polite business letters, week are not specifically looking at damages for loss, consequential or otherwise , harassment is foremost here, we know of cases with very similar features that have had severe and sometimes tragic outcomes.

 

You are most definitely right about my experience and of course entirely wrong on the validity and success of this approach.

[Peterbard]

http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html Here is the Harrison case no fine though

[Peterbard]

Rubbish pussy footing around DCAs that are acting in this way it a total waste of time the OP poor fellow has had scenario for far too long for polite business letters, week are not specifically looking at damages for loss, consequential or otherwise , harassment is foremost here, we know of cases with very similar features that have had severe and sometimes tragic outcomes.

 

You are most definitely right about my experience and of course entirely wrong on the validity and success of this approach.

 

As said above, I think the OP needs to decide on their primary desired outcome.

 

You make very definite statements, which can be a good thing. You state you have had the experience and we are wrong about the success of your approach. Are you able to point us to some of the successful judgments you have achieved, as I try to keep reasonably abreast of case law, and significant outcomes from county courts, but these successes seem to have passed me by - sorry.

 

I think Wiki law is best kept off forums, and indeed sometimes it is best to keep the law off forums and reality on them. Dodgeball and I just live on Earth; you appear to inhabit a different planet where reality is very different to things here.

 

Please post up your successes and prove me wrong.

[Peterbard]

Rubbish pussy footing around DCAs that are acting in this way it a total waste of time the OP poor fellow has had scenario for far too long for polite business letters, week are not specifically looking at damages for loss, consequential or otherwise , harassment is foremost here, we know of cases with very similar features that have had severe and sometimes tragic outcomes.

 

You are most definitely right about my experience and of course entirely wrong on the validity and success of this approach.

 

It is not pussyfooting brigadier it is behaving in a professional manner, making threats that you cannot possibly follow through on frankly just makes you look absurd, and looses the OP any credibility.

 

If you think there is any legal rationale for claiming damages in this case then let hear your reasoning, otherwise it is just bluster. If the OP is going to resolve this he is going to have to talk to the DCA's concerned and iron out the problem, threatening with some fictitious court action will not help, it will just make them unwilling to address the issue and frankly think you are just another forum lawyer.

[Halibutt]

Guys, Brigadier has been immensely helpful to many people on here, me included. It's thanks to his (and others) advice that I've won quite a few cases, had claims dropped and compensation payments made.

It's hot, Brig (and I) are getting on a bit, cut us some slack, eh lads?

[Peterbard]

Your multiple personality disorder at work Dodgeball!

 

HaHa

 

Seriously though If the OP is still about you need to talk to the DCa's concerned, yes in writing and yes be firm, but don't make threats that cannot be followed through it just makes them uncooperative, this is from years of real experience in such matters.

 

Anyway good luck

 

Dodge

[Peterbard]

T'would be nice to be a lad again! I think many of us have had a fair few successful outcomes, and we're all after the same outcome - whatever is best for the OP. I think it's the rather overly-definite attitude which provokes the reaction. No reason to fall out though - been there, done that, don't want to do it again thank you.

[Halibutt]

That's fair enough Davyly.

I would say that regarding the original query, the OP is quite ok to write (not phone) the OC and make it very plain what he feels the siatuation is.

There's no harm in being firm, and certainly no harm in making a threat of small claims action - especially as this is a case of mistaken identity and as a result, harassment and trashing of what (it would seem) had been a perfectly good credit reference file.

Just need to stick to facts and be prepared to follow through with any 'threats' made. If done correctly, the DCAs (in my experience) really do back down.

As in many cases, with "phishing trips" they need to be told exactly where you/they stand. As previously stated, the onus is on them to prove any indebtedness beyond any doubt.

 

Anyway, best of luck from me too Stockport, and if you do need any further help, please do ask.

 

H. x

[ims21]

I have removed some posts from this thread i.e. the ones that do not directly help the OP.

 

There are some differing opinions on how this matter could be dealt with and the OP should read all opinions and judge for him/herself which is the best route for them.

 

It is also worth pointing out that if the OP decides on a court action, while I have no doubt he will get the support and help he needs, it is the OP themselves who will be in the courtroom and will need to have an understanding of what they might be getting into.

 

healthy debate here is fine but not personal attacks please.

 

To the OP, you might like to read the information that has been offered to you and then do some more reading around as there is a wealth of information on CAG which could help you.

 

Thanks

[citizenB]

Stockport, you are aware that you can send a Subject Access Request to the Credit Reference Agencies ?

 

It costs £10.00 and they have the same 40 calendar days that other Data controllers have and it is surprising what things can be unearthed that way

[Peterbard]

I would concur with the above. Be firm, but please do not threaten or state anything unless you are actually prepared to do it. The DCA is the Data Controller, so only the DCA can do anything about. If they refuse, then you go to the ICO - that's why it's there.

 

Your position is a very difficult one, and it will not be solved with one letter. However, you must stop phoning and keep everything in writing (email is fine) for the avoidance of doubt, just in case legal action is ever necessary.

 

Hopefully you will get it resolved long before that is the case.

[Peterbard]

I find that it is always a good idea to get the name of an individual, preferably the data controller him/herself and place the query with them, then if it is not resolved you go back to the same person.

 

Nothing worse than having to repeat the same old information every time you contact the firm.

 

I would place the complaint in writing and then contact at frequent intervals until the complaint is resolved to your satisfaction, I would like to say that there is a quick fix to this problem but the truth is that there rarely is, as sequency says much of this is automated and it means that someone has to take the time to get into the machinery and rectify the error, persistence usually pays off in the end though.

 

Dodge

[phaitun]

I have read this thread with interest and it seems that people often forget that the Data Protection Act co-exists with the basic Human Right to Privacy and right to be from discrimination and harrassment.

 

Now i am sure that the European Court would take a dim view of someones right to privacy being so badly infringed with an unlawfully placed default marker that their 'financial reputation' has been damaged, then their private information sold on to harrassers who then embark on a campaign so intense that people have committed suicide, without making even the most basic of checks - no wonder so many cases are settled out of Court or locally at County Court.

 

It seems an impossible and ridiculous situation where the Law enforcement agencies have to get special training and high level permission to access the credit files of someone they are genuinely interested in backed up by solid intelligence - they have to prove beyond all doubt that the person is in fact their subject of interest before obtaining ANY access, yet a Data entry clerk, or possibly a computer program can access and place a marker on a persons record without checking if it is factually correct and then sell that information to any rogue DCA that it fancies.

 

I am all for being nice with these DCA's at the first or even the second interaction, but most of them are rogues, trading in dirty business, making money from the vulnerable by bullying them into submission. We hear stories all the time of debts being paid off unwittingly by persons that don't even owe the debt as they are so scared of the possible consequences as threatened by the DCA's.

 

I have threatened action under Human Rights legislation and my right to privacy laws being breached, together with my rights to be free from discrimination and harassment and the DCA concerned has run a mile; this, together with my accompanying notice that i will charge £35 per hour taking time to answer their letters, calls and text messages they have scurried away under their stones.

[Peterbard]

Sadly, I doubt the ECoHR would be the slightest bit interested in this. The Human Rights Act tends to exist for the really big issues, though is used to good effect by some individuals.

 

I suspect your result with the DCA's was more to do with the fact they can make their profits more easily from people who don't put up a fight than those who do - nothing more and nothing less.

 

Brig - with sincere respect, your approach is simply miles off the mark.

Edited July 17, 2013 by Dodgeball

[phaitun]

LOL the Court is there for everyone to seek justice, its not only for 'BIG' things.

 

Any engagement of Human Rights can be heard at the European Court of Human Rights, that's why the Act was brought in.

Ask any official dealing with such matters especially around RIPA and Freedoms etc.

There is no need for hearings at lower Courts, that is for the Europen Court of Justice, seperate entities!

 

It is open to everyone and they can act in person if they are up for it.

 

e.g The right to a fair trial/hearing extends right up to internal employment discipline procedures/hearings. The legislation only allows breaches or engagements under certain 'permissive' laws of the relevant country. Any other breach is unlawful and can be rightly brought by an individual and heard at the ECHR. It is not an appeal Court

 

What i am saying is that the UK needs a case such as this to be heard in such a Court in order for justice to be served properly, i was willing to take my case if needed and refused to compromise with the harrassers, they backed off.

[caro]

There is plenty of advice for the OP to consider and decide what is right for him.

 

I suggest that we wait for him to come back with any questions he might have before adding more ideas or discussions.

[Peterbard]

It will never happen though, because the DCA's move on to easier prey. They really do not want to be in front of the ECHR. I didn't actually say it was only for the big issues, I said it tended to deal primarily with the bigger issues. I also mentioned some people had used it to good effect.

 

It is not usually hard to get a DCA to back off if they have only an equitable assignment. If they have an Assignment in Absolute, then you may have a harder job on your hand. If you start getting threats from Marlin or several others, you could well end up in a very uncomfortable position.

[Peterbard]

Perhaps another thread should be made entitled the role of the human rights declaration in debt collection.

 

 

As a finl point there is facility for redress within the DPA 1998 for sanctions where a data controller deliberately missuses data, without taking such grandiose measures as reporting them to the ECoHR.

 

However in the OPs case as in most cases this is not a deliberate act, this is an error. General damages will not be entertained unless it can be proven that parties did not act in good faith.

 

So going back to the OP in this case the ONLY sensible course is to resolve the error by TALKING to those concerned, and getting it straightened out, threats will get no where.

 

Definitely my last word on the subject

 

Dodge

Edited July 18, 2013 by Dodgeball

[renegadeimp]

It is not a simple error if it has been ongoing for 7 years. It really is as simple as that.