Proposed Pre Action Protocol for Debt Claims

[Guest]

Been In consultation, a protocol due soon.

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/472908/pap-for-debt-claims-consultation-november-2015.pdf

[BankFodder]

Thank you. Very helpful

[silverfox1961]

Thank you. Very helpful

Indeed, great find. Just reading it now and from the few I have read, this is going to become very burdensome on some creditors and especially DCAs that don't have all the paperwork

[Guest]

spot on, the initial proposals didnt go down too well with the cruds (and resulted in a redraft) eg

 

'....The drafting of the proposal and the actual consultation were both met with controversy, primarily due to the lack of consideration as to the extra burden it would add to creditors by the extent of information they would have to provide in the Letter of Claim and the fact that this extra cost would not necessarily be recoverable in any subsequent proceedings.

 

 

Many questioned if the protocol was actually necessary and if the general Practice Direction needed amending.

 

 

The result of the consultation was that the view was taken that the draft Debt Protocol did need amending but that a new pre-action protocol would be a welcome addition to the Pre-Action Protocols.

 

 

Many responses to the consultation stated that the Draft Protocol was seen to favour the debtors over creditors and a fairer balance needed to be struck between providing sufficient information to the debtor to respond to the claim and the time and cost of providing this by the creditors....

....The aims of the Debt Protocol remain the same but the information that has to be provided to debtors has been reduced and clarified.'

 

https://www.brownejacobson.com/training-and-resources/resources/legal-updates/2015/11/pre-action-protocol-for-debt-claims-second-consultation-is-now-open

[silverfox1961]

So, companies that make millions on the backs of debtors are complaining that they will be saddled with extra costs. Tough!

 

this is something they should have been doing anyway but as we know, DCAs are only given the basic information to collect the debts and only supply them grudgingly after a court claim has been started.

Hopefully the new protocols will be useful for debtors although I can see creditors using any loophole they can find to get out of it.

 

As an aside, Vodafone store all their contracts off site and never in the correct order so if a DCA who had bought a VF debt tried it on in court would struggle as VF have stated many times before, they would be unable to locate the agreement.

[dx100uk]

Don't think the debtor should use the forms at all

Esp sign it..that's bad...

 

CCA request if any reply at all

If applicable!!

[AndyOrch]

This has been doing the rounds since 2013...whether it will ever take off is still questionable...but below is the current standard for PAP

 

https://www.moneyclaimsuk.co.uk/pre-action-protocol.aspx

[Michael Browne]

The Ministry of Justice is consulting on a revised draft Pre-action Protocol for Debt Claims (Debt Protocol) after an earlier version was lambasted by representatives of the credit industry as being totally disproportionate. The new version attempts to strike a more proportionate balance between the needs of creditors, debtors and debt advisors.

 

Debt claims make up a huge swathe of the business of the courts. Lord Justice Jackson identified the need for a specific pre-action protocol for such claims in his final report reviewing civil litigation costs. The aim of such a protocol was to ensure that debtors, or alleged debtors, should be provided with sufficient information to enable them to get advice on their position before a claim was issued against them.

 

However, the draft Pre-Action Protocol for Debt Claims which the Civil Procedure Rule Committee (CPRC) put out for consultation in September 2014 caused consternation amongst the credit industry due to the volume of paperwork and information that creditors would be required to provide. Under its provisions creditors would not only be obliged to provide very detailed statements of account and a raft of other documents and information relating to the alleged debt but also a full copy of the Debt Protocol itself. This was considered disproportionate given that 95% of such claims go undefended.

 

In 2015 a new sub-committee of the CPRC was formed to consider the draft in light of the consultation responses. Representatives of the Civil Court Users Association, a debt purchaser organisation and a debt advice provider were all co-opted onto the sub-committee to ensure that relevant stakeholders’ views were taken into account. That sub-committee has now produced a new draft which has involved a large degree of re-working.

 

The main change has been to the volume of documentation which creditors will have to provide to alleged debtors as of right. A two stage approach will now be adopted whereby some information will have to be provided as of right with or in the letter of claim, with other information and documents being made available on request and debtors being prompted to consider what information they might want to ask for.

The burden on creditors to supply debtors with a full copy of the Debt Protocol has also gone. Instead creditors will have to provide debtors with a standard Information Sheet which sets out in plain English what their rights and obligations under the Debt Protocol are.

 

It looks as though creditors will be required to enclose a copy of any written agreement relating to the debt when they send the letter of claim. Creditors had argued that this would be disproportionately costly given that the debtor will already have received a copy of the written agreement when the debt was incurred. Also many creditors’ processes are not set up in such a way as to enable them to readily find an agreement relating to an individual’s case. In situations where the debt has been assigned, the debt purchaser wanting to initiate proceedings may not have received a copy of the credit agreement from the original creditor.

 

http://www.lexology.com/library/detail.aspx?g=38daba76-456a-43ae-8996-d334a2e1196b

[highlandertom]

Thanks for this, if it is actually implemented ? from this,

 

 

" creditors and debt purchasers alike shouldn’t be commencing proceedings without checking the underlying agreement and ensuring that there is adequate documentation to support the claim."

 

 

This 'might' stop the current fishing court claims ?

 

 

In my view, it should go further, and require the original signed agreement, before 'alleged' debt is registered with the Credit reference Agencies.

[silverfox1961]

Thanks for this, if it is actually implemented ? from this,

 

 

" creditors and debt purchasers alike shouldn’t be commencing proceedings without checking the underlying agreement and ensuring that there is adequate documentation to support the claim."

 

 

This 'might' stop the current fishing court claims ?

 

 

In my view, it should go further, and require the original signed agreement, before 'alleged' debt is registered with the Credit reference Agencies.

 

Since 2007 and for online applications, there was no need for a proper signature. Just proof that the account was used.

 

I am fairly sure the issue of defaults was dealt with by the courts a few years back but for the life of me, I can't remember which case it was.

[highlandertom]

Apologies, I was thinking about my own circumstances, all pre 2007. I have had a treat of court action from shoosmiths, this year, my solicitor has written asking to see a copy of the original signed agreement ( pre 2007 ), none was supplied with my cca, so this is on hold.........

[AndyOrch]

Since 2007 and for online applications, there was no need for a proper signature. Just proof that the account was used.

 

I am fairly sure the issue of defaults was dealt with by the courts a few years back but for the life of me, I can't remember which case it was.

 

Judge Waksman (usually known as Carey v HSBC; 23/12/09) ?

[silverfox1961]

Judge Waksman (usually known as Carey v HSBC; 23/12/09) ?

 

That's the one

 

Old age is catching up with me (see my thread in the BG)

[citizenB]

It looks as though creditors will be required to enclose a copy of any written agreement relating to the debt when they send the letter of claim. Creditors had argued that this would be disproportionately costly given that the debtor will already have received a copy of the written agreement when the debt was incurred. Also many creditors’ processes are not set up in such a way as to enable them to readily find an agreement relating to an individual’s case. In situations where the debt has been assigned, the debt purchaser wanting to initiate proceedings may not have received a copy of the credit agreement from the original creditor.

 

 

And so they should provide a copy with the claim. They say that the "debtor" would have received a copy of the written agreement when the debt was incurred. Unfortunately this is not always true and has been proved many times in court where the debtor did NOT receive one.

 

As for any 3rd party wishing to instigate action through the court not having been provided with a copy when they purchased a debt. From CAG's experience, the 3rd party DCAs are provided with very little information - they are not generally advised by the original creditor if there is any dispute and again in CAG's experience it has been proved there was an ongoing and unresolved dispute at the time of assignment and very likely the reason the Original Creditor wanted to sell the debt on. Nor are they informed that there are unlawful penalty/default charges or mis- sold PPI! Perhaps if they were to be better informed at point of assignment a lot of distress for the debtor could be avoided.

 

As for the Original creditor not having a system set up whereby they can find a specific agreement - I am sure they would be able to resolve this without too much cost or hassle !

 

Most "debtors" do not enter into an agreement on the basis that they are going to find themselves with financial problems several years further on - so why would they keep their agreements ? Although I would imagine that many people will now do so.

[Guest]

the 3rd party DCAs are provided with very little information

spot on. buyers are just given the simple info in the assignment. they even start court claims just on the back of that.

once a cca request, complaint, dispute, cpr etc is raised, they have to go back to the original creditor for the info.

[Guest]

update:

the csa's recent note re the proposed pre action protocol (prob due next year)

http://www.csa-uk.com/corporate/news/update-on-the-pre-action-protocol-for-debt-claims-pap/

[Guest]

re the 'Online Court' mentioned in there

https://www.theguardian.com/law/2015/feb/16/online-court-proposed-to-resolve-claims-of-up-to-25000

[dx100uk]

in other words no changes then

 

they'll still send out 1000'000's of threat-o-grams to fleece people with no actual need to prove the debt legally exists

or is even legally payable to debt buyers..

 

looks like a few more DCA CEO's etc will be building mansions like paul did

[Guest]

in other words no changes then

 

 

yep, as expected (#4) the cruds get the redraft their way. the system bending over as usual.

[silverfox1961]

This bit caught my attention.

 

There will be a requirement that creditors make it clear in the LBA itself that the customer has the right to ask for documentation, including the original agreement, although it was accepted that this should not be so prominent as to encourage spurious requests.

 

Yeah right! If they are sending an LBA, they don't really want anyone to request the agreement as this would cause them problems, especially pre 07 debts. None of the requests would therefore be 'spurious'

[Guest]

'This article looks at the forthcoming pre-action protocol for debt claims in its current form, with an anticipated implementation date around October this year........'

http://www.shoosmiths.co.uk/client-resources/legal-updates/are-you-ready-for-the-debt-pre-action-protocol-12587.aspx

[silverfox1961]

I saw this the other day and do you notice what is missing. Yup. The agreement!

[AndyOrch]

lets hope its the first step in eradicating debt assignment...because none of the DCAs are equipped or will be able to comply.....and should reduce default judgments.

[Guest]

full details

https://www.justice.gov.uk/courts/procedure-rules/civil/pdf/protocols/pre-action-protocol-for-debt-claims.pdf

[Guest]

this link works, see the link in it (under 'Take Notice') re the formal protocol

https://www.justice.gov.uk/courts/procedure-rules/civil