Debt & Harrassment Advice

[Amethyst]

Harassment of people in debt by creditors or their agents is a criminal offence under the Administration of Justice Act 1970.

This article gives advice to UK residents as to what constitutes Harassment from Creditors.

It is often difficult to know what to do when you feel a creditor is not dealing with your account fairly. In order for you to identify what activities by your creditors may involve harassment and what can be done about the problem.

The Administration of Justice Act 1970.
Section 40 of the act provides that a person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under contract, he or she:
(a) harasses the other with demands for payment which by their frequency, or the manner or occasion of their making, or any accompanying threat or publicity are calculated to subject him or his family or household to alarm, distress or humiliation; (b) falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it; (c) falsely represent themselves to be authorised in some official capacity to claim or enforce payment; (d) utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not. Paragraph (a) above does not apply to anything done by a person which is reasonable (and otherwise legal) for the purpose of :
(1) of securing the discharge of an obligation due, or believed by him to be due, to himself or to persons for whom he acts, or protecting himself or them from future loss; or (2) of the enforcement of any liability by legal process. It is also provided that a person may be guilty of an offence under paragraph (a) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.

Office of Fair Trading Code of Guidance

Many activities could count as harassment. It is important to note that anything done by a person which is reasonable when trying to recover a debt, is not considered to be harassment.

Both the Office of Fair Trading and Trade Associations (run by the credit industry) have produced guidance on what activities may be considered harassment and should therefore be avoided by creditors. The following list is taken from the new Debt Collection Guidance for holders of Consumer Credit Licences.

Creditors are warned by the Office of Fair Trading under the Debt Collection Guidance that the following practices are "considered unfair":

IT IS UNFAIR TO COMMUNICATE, IN WHATEVER FORM, WITH CONSUMERS IN AN UNCLEAR, INACCURATE OR MISLEADING MANNER.


This includes:

**Letters that look like court claims

**Not making it clear who the company is or what their role is

**Unhelpful legal language

**Not giving balance statements about the debt when asked

**Contacting you at unreasonable times even when asked not to

**Asking you to contact them on premium rate phone numbers.


THOSE CONTACTING DEBTORS MUST NOT BE DECEITFUL BY MISREPRESENTING THEIR AUTHORITY AND/OR THE CORRECT LEGAL POSITION.

This includes:

**Claiming to work for the court or be a bailiff

**Implying action can be taken that is not legally possible such as implying they could take your property

**Using a business name or logo that implies they are a government body

**Implying that court action has been taken against you when it hasn't

**Implying not paying your debt is a criminal offence

**Threatening to take court action in England if you live in Scotland or the other way round.


PUTTING PRESSURE ON DEBTORS OR THIRD PARTIES IS CONSIDERED TO BE OPPRESSIVE

This includes:

**Contacting you too frequently

**Pressurising you to sell property or take out more debt

**Using more than one collection company at the same time or not telling you when your debt has been passed to another company

**Pressurising you to pay in full or in large instalments you cannot afford

**Making threatening gestures or statements

**Ignoring disputes about whether you owe the money

**Trying to embarrass you in public or threatening to tell a third party about your debts such as a neighbour or your family.


DEALINGS WITH DEBTORS ARE NOT TO BE DECEITFUL AND/OR UNFAIR

Examples include:

**Sending letters addressed to 'the occupier' or discussing the debt with someone without knowing if they are you

**Refusing to deal with an adviser acting on your behalf

**Not accepting reasonable offers or passing on payments you make

**Refusing to freeze action if you dispute the debt.


CHARGES SHOULD NOT BE LEVIED UNFAIRLY

Examples include:

**Claiming collection costs when the original credit agreement didn't allow this to happen and making you think you are legally liable for the costs

**Not putting the specific amounts that can be added for collection costs in the original credit agreement

**Adding unreasonable charges.

**THOSE VISITING DEBTORS MUST NOT ACT IN AN UNCLEAR OR THREATENING MANNER

**Collectors should explain the reason for any visit and give you notice of the time and date they will call

**They shouldn't visit if they know you are ill or vulnerable and if they find you are unwell or distressed they should leave

**They should not come in if you do not want them to and should leave when you ask them to

**They shouldn't visit you at work or somewhere like a hospital.

Dealing with Harassment from your Creditors

The first step is to write to a creditor and outline your concerns about the company's behaviour. Inform them that you are familiar with the terms of Section 40 of the Administration of Justice Act and ask that the creditor takes steps to avoid similar occurrences in the future. Tell your creditors how you would prefer to be contacted and ask that they confirm their agreement to this. A letter at this stage may avoid the need to take further action against the company.
Tell them you are aware of the OFT Debt Collection Guidance and that you will consider making a complaint about their behaviour under the guidance.

It is usually difficult to persuade the police to prosecute in cases of harassment unless a more serious offence such as violence, fraud or blackmail is also involved. Normally complaints should be made to the Trading Standards/Consumer Protection Department at your local Council. They should investigate whether an offence has been committed and whether prosecution is appropriate. The penalty is a fine of up to £5,000 in the Magistrates Court. Also a conviction is likely to provide evidence that the creditor is no longer a "fit and proper person" to hold a Consumer Credit Licence.

If Trading Standards will not act it may be worth contacting the Office of Fair Trading directly. The address is at the end of the fact sheet. The OFT does not usually take up individual complaints but their Debt Collection Enforcement Team collects information that can be used to take action against creditors who can lose their Consumer Credit Licence.

The creditor may be a member of a trade association with a Code of Practice. You could find out if your creditor is a member of a trade association and write to them with your complaint. A Code of Practice is not legally enforceable but the association may take some action against their members.



Another alternative is for you to pursue your own prosecution in the Magistrates Court. This could involve considerable cost so you need to obtain proper legal advice first.

BT have a new service called "Choose to Refuse" which might help if you are getting a lot of calls from an unpleasant creditor. You have to key in a pin number after a call. The caller will then get an automated message if you don't wish to take their call when they ring. The cost of the service is £8.00 per quarter.

If you receive a telephone service from another provider, contact them and ask if they have a similar service.

You could refer to the Malicious Communications Act 1988. This deals with the sending of letters or articles for the purpose of causing distress or anxiety. A person found guilty can be fined in the Magistrates Court. To prosecute successfully, the letter or article sent would have to convey:-

**A message which is indecent or grossly offensive

**A threat; or

**Information which is false and known or believed to be false by the sender.


The Criminal Justice Act & Public Order Act 1994 Section 4a makes it a criminal offence to cause ''Harassment, alarm or distress'' with intent by using "threatening, abusive or insulting words or behaviour". This can only be an offence if it happens in a public place not in your own home. The police would need to be contacted and prosecute for this offence.
The Protection from Harassment Act 1997 makes it a criminal offence to harass people and put "people in fear of violence". The harassment must happen on at least 2 separate occasions. The police would have to agree to prosecute for this offence.
__________________

[Sapphire]

Here is a letter to Stop Harrassment by Telephone from your creditors, make sure you send this by RECORDED DELIVERY, so you have proof of delivery.

Your Address
Date

Company Name & Address

Re: Harassment by telephone


ACCOUNT NUMBER: XXXXXXX

Dear Sirs

I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.

I have verbally requested that these stop, but I am still receiving calls. (Delete if necessary)

I now require all further correspondence from your company to be made in writing only.

I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

Be advised that any further telephone calls from your company will be recorded. (**Even if you don't yet have recording equipment!!**)


Yours faithfully,


Your Name

[Paule]

Re: Debt & Harrassment Advice

Additonal letter for continued harrassment, with additons as advised by Trading Standards

To Whom It May Concern:

As I have previously wrote to you regarding all calls to stop as well as verbally told you anumber of occasions, I have now reported the matter to Trading Standards.

Since this you have made over 15 calls to my home telephone number, including various answer phone messages left.

I have been advised by Trading Standards that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

After receiving advice I must inform you that unless all calls stop I will be pursuing the matter further with Trading Standards as well as lodging a complaint with the OFT, as per guidance from Trading Standards. I will also consider issuing civil proceedings under the above act for compensation due to the harassment and stress caused not only to myself, but family members who you spoken to.

I must also bring to your attentions the false claims and threats you have made to me, such as solicitors calling at my house, bailiffs removing goods from my house, etc.

If you have any evidence of this alledged debt, please provide it to me within 14 days, otherwise I will class this matter closed.

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

Be advised that any further telephone calls from your company will not be accepted and will be logged.


Yours faithfully,

[Dougal16T]

Re: Debt & Harrassment Advice

Perhaps we could consider the position of DCAs/Creditors and their harassment activities in a different light?

I say this as I have dealt with Mackenzie Hall in a rather different fashion to using the CCA Regs.

I attach the letter I sent:
Copy of letter sent to Mackenzie Hall....

Thomas Lloyd
Mackenzie Hall
30 The Foregate
Kilmarnock[
KA1 1JH 20th May 2008


First Class recorded delivery

Re: M XXXXXX


I do not acknowledge any debt to your company or any other person

I have today received your unsigned letter dated 9/5/2008. I will not be making any payment to you.
I will not be calling you. This is because I do not carry out any financial business on the telephone, all business between us must be in writing.
It is necessary to draw your attention to my letter to you dated 9th May 2008, sent by recorded delivery first class mail.
Royal Mail have confirmed receipt by you of this letter.
This letter required certain information from you – that information is still outstanding.
In the meantime, the contents of your letter dated 9th May 2008 constitute an offence under The Fraud Act 2006 .

The appropriate sections read:

Section 1. Subsection (3) sets out the penalties for the offence. The maximum custodial sentence of 10 years is the same as for the main existing deception offences and for the common law crime of conspiracy to defraud.

This section makes it an offence to commit fraud by false representation
Subsection (1)(b) requires that the person must make the representation with the intention of making a gain or causing loss or risk of loss to another. The gain or loss does not actually have to take place. The same requirement applies to conduct criminalised by sections 3 and 4. Subsection (2) defines the meaning of "false" in this context and subsection (3) defines the meaning of "representation". A representation is defined as false if it is untrue or misleading and the person making it knows that it is, or might be, untrue or misleading. Subsection (3) provides that a representation means any representation as to fact or law, including a representation as to a person's state of mind.
Subsection (4) provides that a representation may be express or implied. It can be stated in words or communicated by conduct. There is no limitation on the way in which the representation must be expressed. So it could be written or spoken or posted on a website.
Subsection (5) provides that a representation may be regarded as being made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention). The main purpose of this provision is to ensure that fraud can be committed where a person makes a representation to a machine and a response can be produced without any need for human involvement.

Section 3. makes it an offence to commit fraud by failing to disclose information to another person where there is a legal duty to disclose the information. A legal duty to disclose information may include duties under oral contracts as well as written contracts. The concept of "legal duty" is explained in the Law Commission's Report on Fraud, which said at paragraphs 7.28 and 7.29:
"7.28 ..Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).
7.29 For this purpose there is a legal duty to disclose information not only if the defendant's failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non-disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it."

Section 5. defines the meaning of "gain" and "loss" for the purposes of sections 2 to 4. The definitions are essentially the same as those in section 34(2)(a) of the Theft Act 1968 and section 32(2)(b) of the Theft Act (Northern Ireland) 1969. Under these definitions, "gain" and "loss" are limited to gain and loss in money or other property. The definition of "property" which applies in this context is based on section 4(1) of the Theft Act 1968 (read with section 34(1) of that Act) and section 4(1) of the Theft Act (Northern Ireland) 1969 (read with section 32(1) of that Act). The definition of "property" covers all forms of property, including intellectual property, although in practice intellectual property is rarely "gained" or "lost".

Section 6. makes it an offence for a person to possess or have under his control any article for use in the course of or in connection with any fraud. This wording draws on that of the existing law in section 25 of the Theft Act 1968 and section 24 of the Theft Act (Northern Ireland) 1969. (These provisions make it an offence for a person to "go equipped" to commit a burglary, theft or cheat, although they apply only when the offender is not at his place of abode.) The intention is to attract the case law on section 25, which has established that proof is required that the defendant had the article for the purpose or with the intention that it be used in the course of or in connection with the offence, and that a general intention to commit fraud will suffice. In R v Ellames 60 Cr. App. R. 7 (CA), the court said that:
"In our view, to establish an offence under s 25(1) the prosecution must prove that the defendant was in possession of the article, and intended the article to be used in the course of or in connection with some future burglary, theft or cheat. But it is not necessary to prove that he intended it to be used in the course of or in connection with any specific burglary, theft or cheat; it is enough to prove a general intention to use it for some burglary, theft or cheat; we think that this view is supported by the use of the word 'any' in s 25(1). Nor, in our view, is it necessary to prove that the defendant intended to use it himself; it will be enough to prove that he had it with him with the intention that it should be used by someone else."
Subsection (2) provides that the maximum custodial sentence for this new offence is 5 years.

Section 7 makes it an offence to make, adapt, supply or offer to supply any article knowing that it is designed or adapted for use in the course of or in connection with fraud, or intending it to be used to commit or facilitate fraud. For example, a person makes devices which when attached to electricity meters cause the meter to malfunction. The actual amount of electricity used is concealed from the provider, who thus makes a loss. Subsection (2) provides that the maximum custodial sentence for this offence is 10 years.
In the Magistrates Court the sentence for a single offence may not exceed 12 months. However, Section 78 of Powers of Criminal Courts Act (Sentencing) Act 2000 imposes a maximum of six months. This was due to be changed in November 2006 and will change if Section 154 Criminal Justice Act 2003 is activated. As at 16 January 2007 it has not been activated so the maximum penalty is restricted to six months.

Section 8: "Article"
Section 8 extends the meaning of "article" for the purposes of sections 6 and 7 and certain other connected provisions so as to include any program or data held in electronic form. Examples of cases where electronic programs or data could be used in fraud are: a computer program can generate credit card numbers; computer templates can be used for producing blank utility bills; computer files can contain lists of other peoples' credit card details or draft letters in connection with 'advance fee' frauds.

Section 12. This repeats the effect of Section 18 of the Theft Act 1968. It provides that if persons who have a specified corporate role are party to the commission of an offence under the Act by their body corporate, they will be liable to be charged for the offence as well as the corporation. By virtue of subsection (2)(a) and (b) this offence applies to directors, managers, secretaries and other similar officers of companies and other bodies corporate. Subsection (3) provides that if the body corporate charged with an offence is managed by its members the members involved in management can be prosecuted too.

Itis now too late to reverse your position, as a report has today been passed to the OFT.However, I am conscious of the possibility that their enquiries may be protracted and so therefore I have today made a formal complaint to the Police, providing a S.9 Witness Statement, together with first generation copies (taken by the Police) from the documents you sent to my address. My request for this matter to be investigated under the Fraud Act 2006 has been accepted and enquiries are today commencing.

Sorry it's a bit lengthy...but does anyone have any comments? All I can say it it seems to have had the required effect!

Best wishes to everyone......
Dougal