ScarletPimpernel v Cabot

[ScarletPimpernel]

A few weeks ago I received, out of the blue, a letter from a company called ECI, pursuing an alleged debt on behalf of Cabot (I will not say which bit of the hydra yet). I ignored it, as I did the next couple. Ultimately, however, curiosity got the better of me and I had an entertaining conversation with ECI.

 

It transpired that they were trying to collect a debt apparently incurred in 1984! - is this a record?

 

I told them that so far as I could remember I have never had an account with the bank they named, but in any case it would be statute barred. It seems that ECI, like so many DCAs, think that the OFT guidelines and DPA don't apply to them.

 

"You must owe the money, because Cabot say so, and statute barred doesn't mean we won't continue to enforce it", they said. "Actually, it means precisely that you won't, because you can't", I said. "Well, maybe not in court, but we can still try to collect", they replied.

 

They then went on to tell me some porkies about registering defaults with CRAs, cancelling my birthday and making the sky fall in.

 

I went on to ask if they could produce evidence of my consent for them (or their client, Cabot), to process my data, to which they replied that they must have it, because Cabot wouldn't have handed the case to them otherwise. A touching faith in Cabot, no?

 

The creature at ECI said he was so confident that they could still collect, that he'd be writing a final letter before taking me to court (he'd obviously forgotten that that isn't going to happen). Maybe he wrote it, but he certainly didn't send it to me.

 

On the other hand, I have written to them. I am rather busy, so my letter won't get posted until the 6 April.

 

In my letter I have told them that I perceived the phone monkey's talk of continuing to collect as a threat to harass; asked them to confirm that they will now comply with the OFT guidelines; demanded a copy of my signed consent for them and Cabot to process my data; and demanded full details of their client. I have a feeling that they will not want to play.

 

The next stage will be to complain to the FOS and IC about ECI, and then begin a complaint against Cabot under the DPA.

 

Sink me, I'm quite looking forward to doing battle with Citizen Maynard.

[ScarletPimpernel]

And we're looking forward to hearing all about it.

 

Watch they don't try to break your legs with baseball bats. Any company that tries to collect on a debt that old really must be the lowest of the low.

 

 

Any company that tries a doorstep collection in Northern Ireland must be the most moronic of morons.

 

So, I'll expect them next Tuesday...

 

 

 

I'm not advocating any sort of illegal violent response, incidentally, though that's why there are some areas where DCAs fear to tread. Not where I live, which is very firmly on the right side of the law.

[ScarletPimpernel]

Alas, Seahorse, you have the wrong ECI - the clowns I'm dealing with are these: ECI: Under Construction

 

Still, the other one is risibly self-important - no doubt they'll turn up on CAG some time.

[ScarletPimpernel]

You must live in an area where the TV detector vans fear to tread too, then.

 

With that splendid sense of fairness that New Labour are famous for, MoD insists that the military co-operate with TV Licencing/Crapita, whilst for Tony Bliar and 'Sinn' Hain's new best mates it's business as usual - no TV licencing, no DSS investigators, and so on. Then again, people buying televisions tend to use spoof addresses, as a security measure, you understand, which seems to confuse Crapita's database...

[ScarletPimpernel]

Here's what I sent on 06 April:

 

COMPLAINT

 

Dear Sirs

 

I do not acknowledge any debt to you, or any company you claim to represent.

 

I refer to your recent correspondence and to my telephone conversation with Monkey01 and Monkey02 of 20 March 07. You contacted me regarding the above-referenced account, which you claim is owed by me.

 

As you are aware, under the Limitation Act 1980 Section 5 "an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued."

 

The Office of Fair Trading’s Debt Collection Guidance (by which you are bound, as you are required to hold a Consumer Credit Licence) states, on statute barred debt that: "it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period".

No acknowledgement or payment towards this alleged debt has been made for far longer that the limitation period. Indeed, you have provided no evidence whatsoever that the alleged debt even exists or existed.

 

However, Monkey02 stated that whilst he was aware that the alleged debt could not be enforced at law, this did not mean that ECI would not stop trying to collect. This is contrary to the OFT Debt Collection Guidance, which states that "continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred could amount to harassment contrary to section 40 (1) of the Administration of Justice Act 1970". I perceived Monkey02's statement as a threat that ECI or its client intends to harass me in the future.

 

Monkey02 told me that such was his confidence in the strength of his position, he intended to write to me confirming that collection action would continue. It comes as no surprise, however, that I have not heard from him at all.

 

It is my view that such blatant disregard for the OFT rules makes ECI unfit to hold a Consumer Credit Licence. I therefore intend to make a formal complaint to the Financial Services Ombudsman (FOS). I also consider that an offence may have been committed under Data Protection Legislation, which matter I shall raise as a complaint to the Information Commissioner.

However, I am prepared to offer you a reasonable avenue to resolve the situation. I require all of the following:

 

-full details of your complaints handling procedure

-confirmation in writing that you intend to honour your obligations under the OFT Guidelines, and that you will no longer attempt to pursue this statute barred alleged debt

-full details of your client, including the registered company name, address and any reference number pertaining to this matter

-a true copy of my signed consent for either your client or yourselves to process my data.

 

Please ensure that your reply reaches me within 10 days.

 

Today I received a letter from ECI, offering, in huge letters and a lurid typeface, a discount. I shall use it as a style guide for my next letter of complaint.

[ScarletPimpernel]

I have now received a letter from ECI, confirming that no further activity will take place, that their staff were wrong in regard to statute barred debt, and offering an unreserved apology.

 

Not sure now whether to pursue Cabot over the data protection issue, or let sleeping **** lie.

[ScarletPimpernel]

Well, despite ECI hoping I would view their letter as an end to the matter, I have written again, reminding them that the timescale of their acknowledgement of my complaint was outside the requirements of the CCA 2006, as was their failure to send the requested details of their complaint procedure.

 

I have confirmed that I want full details of their client (I know it's Cabot Financial (Europe), but I want to see if any of the rest of the evil empire has any data), and a copy of my consent for Cabot and/or ECI to process my data.

[ScarletPimpernel]

An update.

 

I spoke to ECI this afternoon as they had failed to respond to my last letter other than to acknowledge receipt and say they'd reply within 5 days. I have to say that the chap I spoke to was entirely businesslike and helpful - perhaps because they have nothing to gain now.

 

Anyway, he's got some stuff to send me:

 

A copy of a letter from RBS assigning the alleged debt to Cabot Financial (UK) Ltd. This is apparently dated Feb 2000, which is interesting, since Cabot Financial (UK) Ltd didn't exist until January this year. Either RBS had a crystal ball seven years ago, or Cabot have been busy with their printer and someone else's letterhead.

 

Details of ECI's client - Cabot Financial (Europe) Ltd. Quite how they metamorphosed from UK to Europe is a mystery. No doubt Willem has the answer.

 

Alas, although he's asked Cabot for a copy of the original agreement, they don't have it, but are apparently trying to find some T&Cs. Quite how this meets the requirements for processing data is another little mystery.

 

ECI are asking me to confirm that I won't take any action against them, which is nice...

 

As soon as I receive the papers, I shall have pleasure in helping Cabot to contribute another £400 to FOS.

[ScarletPimpernel]

I have at last received a copy of the letter purporting to be from the OC, notifying me that the alleged debt was assigned to Cabot in 2000.

 

Points to note:

 

- the letter is undated. This seems to me to be at best poor business practice, and at worst designed to be vague or misleading.

- the letter claims that the debt was assigned to Cabot Financial (UK) in Feb 2000, over six years before Cabot Financial came into existence. Whilst I don't doubt that anything properly assigned to Kings Hill No1 Ltd would be carried over when the name changed, but I do think that the veracity of the letter is doubtful.

- the letter states that the account was assigned to Cabot Financial (UK) Ltd, and that all communication must 'therefore' be addressed to Cabot Financial (Europe) Ltd. Apart from the questionable logic of the statement, if this wasn't statute barred anyway, I think I might have tried a technique I shall call the reverse-Cabot, which involves writing to them to acknowledge that the debt belongs to me, but that all communication must be addressed to someone else entirely. Furthermore, if pressed, I should then claim to be sometimes the same person, and at other times that there is no connection between us. For good measure, I will occasionally refer to old laws that are no longer extant.

 

I am already in touch with the bank to determine whether or not they sent the letter. It seems to me that Cabot will not have any eveidence of my permission to process my data, so I shall complain to the ICO about that. It occurs to me that if the letter is a fake - i.e. it was not originated by the apparent sender, and has been prepared simply because I asked for evidence of Cabot's right to be involved, then it is evidence of deception, and that isn't unlawful - it's illegal. I shall speak to some police contacts on this.

 

In the meantime, if anyone has any suggestions as to how to proceed, I shall be interested to hear them.

[ScarletPimpernel]

Thanks Tomterm8.

[ScarletPimpernel]

Curiouser and curiouser...

 

I have just spoken to a most helpful lady at the bank, who tells me that they have no record of the account number quoted by Cabot. Perhaps unsurprising, since the alleged debt goes back some 23 years. As they have no trace of the account, they do not hold any records such as, for example, an executed agreement. So, Cabot cannot have had any evidence of my permission to process my data, let alone attempt to enforce any debt, were it not statute-barred.

 

Most interestingly of all, she confirmed that neither Cabot nor any other company has authority to use the bank's letterhead - which is nice.

[ScarletPimpernel]

I have written to the OC asking some pertinent questions about the letter, and also (for info, as the debt is statute barred anyway), whether the assignment was equitable or absolute, and whether documentary evidence of a debt and consent to process data (eg a copy of the original credit agreement) is provided when a debt is purchased.

 

Something else that occurred to me, that has probably been covered elsewhere, is how Cabot (Europe) are always pursuing when it is Cabot (UK) that owns the debt (or account, as they have it)? Presumably there will be records showing how each account is 'assigned', and how each processes data.

[ScarletPimpernel]

An update.

 

Nothing heard back from the bank, perhaps unsurprisingly. However, I spoke to Cabot today to ask them to send me a copy of their complaint procedure. First I told them that I intend to report them to the Information Commissioner for unlawfully processing my data, at which point the phone monkey told me that I must have given permission when I first took out the card. "Fine", I said, "just let me have a copy of the agreement then". "Well, we haven't got it now because it's not an active account", says the monkey. "Actually, according to the bank you bought the debt off, you've never had it", I told him, " and Cabot know it because they told ECI. In any case, if you don't have evidence of my permission to process my data, and you don't intend to try to collect this statute barred alleged debt, why are still doing it? - you've just told me you have my details on your screen". Suddenly, he wasn't keen to talk to me, but wouldn't you know it, his team leader had just left the office. What's more, all the team leaders and managers were in a meeting, so there was no one else to talk to.

 

So, I told him I was going to contact the police about the bogus letter, because it hadn't been sent by the bank. Now, he says that Cabot have permission to use the bank's letterhead, and I say that the bank told me otherwise. I pointed out that either way they shouldn't be doing it as it is intended to mislead, and is therefore improper within the meaning of the CCA 1974 (s 25(2)(d), even if it isn't unlawful.

 

Suddenly, the team leader was available again, but I said all I want is a copy of their complaints procedure.

 

We'll see what happens.

[ScarletPimpernel]

Thanks, Seahorse, I will start on it at once.

[ScarletPimpernel]

Admiral Lord Nelson is a particular hero of mine, and today I was thinking of his famous signal to the Fleet at Trafalgar:

 

"Engage the enemy more closely"

 

 

So, my complaints are now en-route to Cabot, one each for UK and Europe.

 

I shall now await the usual pile of dog-toffee about the LOP, after which I shall be on to FOS with the speed of a thousand gazelles.

 

After that, if Cabot fail to comply with my s.10 notice I might just take a leaf out of Louisboy's book and have a pop at them for damages.

[ScarletPimpernel]

Unsurprisingly, Cabot have failed to send out the complaint procedure. I wrote in any case, and although Cabot signed for the letters (1 each for Eu and UK), they have failed to respond.

 

Now, the FOS procedure requires them to acknowledge a complaint within 5 working days, and they haven't done it, so I now intend to make a complaint direct to FOS, with a request that they make an order for compensation for the time I have wasted on the oxygen thieves at Cabot.

[ScarletPimpernel]

Update. Another letter from Cabot, this time from Chris Atkins, dated 12 December but postmarked 27th.

 

It is, as might be expected, full of waffle. All the usual suspects are there: 'we have no obligation to supply information' (i.e. the agreement); 'we have a legal obligation to report to CRAs' etc. etc.

 

Perhaps the most breathtakingly arrogant (and incorrect as to fact) statement is this one: 'by asking for a copy agreement, you have acknowledged the account'. Given that I specifically mentioned that I did not acknowledge the debt, because I do not think I had an account with the OC, I find this a ludicrous assumption.

 

They then go on to justify continuing to process my data, even though they have confirmed that the debt is statute-barred and they have confirmed they have no interest in it, by claiming that 'you would have signed an agreement giving consent, therefore it would not have been necessary to seek your permission for the OC to pass the data to Cabot'. Now, is it just me, or does this seem to anyone else that this is a wilful misunderstanding of the issues involved.

 

My dilemma now is this: because of other more pressing matters I didn't complain to FOS. I could now, but it seems to me that ICO may be a better bet. Ideally I'd like to go to both, but I'm aware that FOS won't deal with any case where data protection is mentioned, and vice versa. Which would be the better one to go for. My first thought is ICO, because I think that Cabot have neither consent or any need to process my data. Comments welcome.

[ScarletPimpernel]

Cabot have been clear that they would not be pursuing the alleged debt, even though they should never have started doing so.

 

I couldn't resist one last letter:

 

Dear Mr Maynard

 

Letter before action

I refer to the letter from Chris Atkins dated xxxx.

 

Living in a rural area, it is not unusual to come across large, stinking piles of bovine faecal matter. Mr Atkins' letter is, however, quite the largest and most malodorous example I have ever seen.

 

His specious arguments, wilful misunderstanding of the points raised in my complaint, and mendacious approach demonstrate a total lack of commitment to compliance with legislation and regulatory rules.

 

His reluctance to enter into further correspondence is noted - perhaps he has run out of cut-and-paste templates?

 

Cabot's conduct in this matter is, in my view, clear evidence that it is not fit to hold a consumer credit licence, and accordingly I have reported the facts to the Consumer Credit Licencing Fitness Team at the OFT. I have also complained formally to the Financial Ombudsman Service and the Information Commissioner.

 

For the avoidance of doubt, I have never acknowledged this alleged debt, and you have failed to produce any proof that I entered into an agreement (and thus consented to the sharing of data), with (bank).

 

You now have one final opportunity to stop processing my data as instructed in the Notices I served pursuant to s.10 of the Data Protection Act 1998. If you have not confirmed to me within 7 days that you are no longer holding or processing my data, I will ask the County Court to order you to comply, and ask for damages at the Court's discretion. No further notice will be given.

 

I remain,

Yours sincerely

 

Sir Percy Blakeney, Bt

 

I don't expect a reply.

 

I spoke to the OFT yesterday, and they are keen for me to let them have details of Cabot's misdeeds, not by way of a complaint, but as a simple statement of fact that may assist them in looking at Cabot's fitness to continue holding a consumer credit licence.

[ScarletPimpernel]

With pleasure:

 

Consumer Credit Fitness Investigation Team

OFT

Room 1C/5

Fleetbank House

2-6 Salisbury Square

London

EC49 8JX

 

As we all know, they don't deal with complaints, but they will accept details of ways in which licence holders are failing to comply.

 

I also asked the OFT yesterday about dormant companies and consumer credit licences (in fact in relation to Triton, but there are others). My question was:

 

A company is allowed under company law to be dormant and non-trading, and can be funded and used (apparently legitimately), as a vehicle or agent of another, trading, company, as appears to be the case with several in-house DCAs, and DCAs that have a number of companies under one roof. However, if a dormant company breaches the law or OFT guidance, is the CCL of the 'host' company equally at risk?

 

You can, hopefully, see where I am going with this; it would be very easy to let the dormant company take the rap when in fact the host is entirely responsible for the breach. In the (unusual) event that the dormant company's CCL is revoked, all the host has to do is fetch out another dormant company with a CCL, all the while maintaining the pretence that they are pure as the driven.

 

Anyway, the OFT seemed to be interested, and asked me to send them details.

 

Now, Kings Hill no 5,323,889...

[ScarletPimpernel]

The OFT guidance is clear about third party responsibility. However, it seems that all OC's have a template 'we think they're a reputable company' letter. To say anything else, of course, would be to admit that they know that their DCAs don't comply. To an extent I can understand this, and certainly there exists the possibility (however slim) that a DCA is taken on in good faith.

 

However, when the DCA is in-house or a dormant company, there can be no excuse. The only thing that will put a stop to it is zero-tolerance on the part of the enforcement agencies and regulators, none of whom seem particularly effective at the moment.

[ScarletPimpernel]

I will add any updates as I receive the information.

 

This morning I spoke to the Information Commissioner's Office about Cabot, but also raised the dormant company question with them.

 

When registering as a data controller, the trading status of the company isn't mentioned, so it's easy for dormant companies to get onto Information Commissioners Office's register. It seems to me that if a company isn't trading, it should not be able to be a data controller, since any data processing would be activity that in most circumstance would amount to trading.

 

Similarly, dormant companies can be granted consumer credit licences - but again, why does a company that isn't trading need one? The OFT's licencing 'fitness test' includes these points:

 

evidence of the skills and knowledge that you and the people participating in your business have in relation to the licensed activity and any

relevant experience, and

 

of the practices and procedures that you propose to operate in the

running of the business.

 

Since a dormant company cannot have any staff, and its non-trading status indicates that it won't be using any practices and procedures, how can it fulfil the requirements for a licence?

 

Clearly companies that are starting-up will need to be able to get a licence, but there doesn't appear to be any check to see whether a company goes on to trade or not. It seems to me that the licences held by dormant companies should be withdrawn, and fitness assessed again if and when they begin trading.

 

[ScarletPimpernel]

Triton have failed to reply to a complaint I made to them, so I will be reporting them to FOS in the next few days. I'll be asking FOS to consider why a dormant company should need (and be granted) a consumer credit licence, and to investigate RBS' fitness as well, since Triton is clearly a front.