Creditor Harassment

[FiFiFu]

I am unable to pay my debts following the loss of my job due to ill health. My only income is a sickness benefit (Employment and Support Allowance).

I hage 9 debts which are 3 credit cards, a store card and 5 mail order catalogues. The total debt started at about 6k but has now almost doubled due to the many charges that the creditors have added. I completed a CCCS income and expenditure breakdown and sent it to each creditor by recorded post last July when I first starting being unable to pay the minimum payments. I have been making the token payments without fail every month since.

I am been harassed by telephone by one mail order catalogue creditor directly and a debt collection agency acting for 2 of the other mail order catalogues. .

The mail order catalogue (Fashion World) have ignored my requests no to phone me. I first verbally asked them not to phone on 26/11/2011 and made a note of the person I spoke to. He said that he would try to have the phone number removed from the dialing list.

The phone calls continued the next day. They play a recorded message asking for me to press 1 if it's me and 2 if not. On 28/11/2011 in response to one of the calls, I took option 1 and asked again not to phone me. The woman I spoke to refused to give me her name and said she wouldn't remove my number from the dialing list as that was the only one they had for me. I told her that the messages were filling up my partner's answering machine and he was losing customers as they were unable to leave a message for him..I also pointed out that it was my legal right to choose how to be contacted but said she wouldn't remove the number and hung up on me.

The calls continued every day including weekends but I didn't answer them as I did not want to speak to them on the phone as they just keep insisting that I commit to paying more than I can afford.

Pressing option 2 just played a message to say who had rung. I've had more than 60 phone callsvsince I asked them not to phone me.

At Christmas I develped a disease called Erosive Oral Lichen Planus and on 13/01/2012 I had a biopsy of my mouth to test for mouth cancer. The biopsied site had stitches in it which made it very painful to talk. I emailed them on 17/01\2010 asking them to stop the phone calls as they were distressing me at a time when I was waiting to find out if I had mouth cancer or not.

On 19/01/2012 I received an email saying that my number had been removed from Fashion World's records. The phone calls continued the next day so I mailed again saying that I considered it harassment to keep phoning me.

On 21/01/2012 I received another email saying that my number had been removed from Fashion World's records. The phone calls continued and I emailed again asking them not to phone me. I just received an email saying that my request would be passed to the Financial Department.

In total, l I emailed them 5 times between 17/01\2010 and 23\01\2012 asking them to stop the phone calls. All these emails were received as I had acknowledgements from each of them.

The phonecalls, however, have continued ever since. I now have a template letter to send to the Data Controller asking for the removal of my phone number under Section 10 of the Data Protection Act 1998.

My query is this: Do I have a case for a claim for damages for all the distress these phone calls have caused?

Does my partner have a case for a claim for damages as his business has been affected by his customers not being able to leave messages?

Any advice would be greatly appreciated as I just don't know what else to do to stop the phone calls.

[bluebottle]

Re: Creditor Harassment

Firstly, have you been in contact with one of the free of charge debt counselling bodies, like CAB? If not, give one of them a ring and discuss the matter with them. They can give you impartial advice.

Harassment is an offence under Section 2, Protection from Harassment Act 1997 and from you say in your post, there appear to be clear breaches of the OFT Debt Collection Guidelines also. Go to the OFT website and download a copy of the guidelines. Debt Collection Agencies (DCAs) are regulated under the Consumer Credit Act by the OFT who have the power to impose sanctions against DCAs who do not comply with the terms of their licence and the Debt Collection Guidelines. The ultimate sanction is revocation of a DCAs licence, which means they cannot operate, as it is a criminal offence to act as a DCA without a licence.

I have been off work myself for the last 16 months with what the doctors are pretty sure is Fibromyalgia, a neurological disorder, and was repeatedly bullied and harassed by my former employers. I am considering legal action against those involved. So, I can get an idea of the sort of thing you are going through at the moment.

The debt counselling body may be able to advise you about dealing with those who are harassing you, but I think it is the OFT who are going to be the ones who are in the best position to advise on this. Contact Consumer Direct on 0845 4040506 and report the mail order catalogue and DCA companies involved. If they cannot deal with the complaint, they should be able to point you in the right direction.

As to whether you and your husband have a claim in law against the mail order and DCA companies, this is a question best answered by a legal professional.

I hope this is of some help to you.

[CleverClogs]

Re: Creditor Harassment

Any advice would be greatly appreciated as I just don't know what else to do to stop the phone calls.[/FONT]

You could call your 'phone company - with BT, it's number 150 - and report the persistent calls.

The catalogue company may have committed an offence contrary to section 127 (2)(c) of the Communications Act 2003 (link) in that they persisted with the calls even though they have been informed they were causing distress and severe discomfort thereby.

[SpringerSpaniel]

Re: Creditor Harassment

Yes, you do have a case under the Protection form Harrasment Act, you can claim compensation for distress and loss of business for your partner.

I would suggest you
i) JOin the telephone preference service;
ii) Send a letter to any of them that continue phoning up that you consider thier behaviour to be illegal harrasment, that you have already put your position in writing, that if they are not happy with your offer they should take you to court, and that if there are any more calls you will take legal action against them for their harrasment where you will be asking for an injunction, for compensation and for an unless order.

If they phone again after this, apply for an injunction in your county court. I will post separately on how to do this.

[SpringerSpaniel]

Re: Creditor Harassment

Harassment by Creditors
Are creditors or DCAs making your life a misery ? Constant phone calls, calls early and late, unannounced visits, contacting employers, neighbours or family ?
This is the experience of many members.


However you may be surprised that the Office of Fair Trading considers most of these commonly used behaviours to constitute harassment. Here is a link to their guidance: [link]


This means that this is in breach of the Protection from Harassment Act , as well as involving the common law offence of Harassment of Debtors.


It has been mentioned previously on this site that it is possible to bring a private prosecution under this Act. This is technically possible, but is not in my view advisable.


A better course of action is to use this Act in civil proceedings against those perpetrating the harassment. This can include getting an urgent Interim Injunction to stop the behaviour you are affected by eg constant nuisance calls. You can also ask for compensation (damages). Remember that if a DCA is acting as agent for an OC, the OC is vicariously liable for the behaviour of its agents.


If you are already in litigation, ie the creditor or their agents are taking you to court, you can counterclaim for harassment contrary to the Protection from Harassment Act as well as defending the claim. Unfortunately you now have to pay a fee to counterclaim.


If you are not already being taken to court by them eg for money they allege you owe, you can sue the DCA and/or the OC for harassment if any of their conduct breaches the OFT guidelines above.
How to get an Urgent Interim Ex Parte Injunction under the PHA

1. Keep a record of everything which happens, including the times and dates of telephone calls, and the effect on you and other members of your household eg calls were early or later, your spouse was upset, you were disturbed before 9am when getting ready for work, etc.

1. If they get through to you, do not discuss the matter except to say that they must put everything in writing and you will deal with it when they do.

1. If they continue to call, send a letter saying that you have asked for matters to be in writing and that if they contact you by any other means, you will deem this to be Harassment and apply without further notice for an Injunction against them. Refer them to the OFT guidance and enclose a copy of these; state how it has been breached. There is a telephone harassment template letter on this site which you can use with suitable adaptations. Make sure you send the letter by recorded delivery and keep a copy.

1. If matters continue despite this, you can now apply to the County Court for an injunction restraining harassment.

1. An injunction is normally initially granted on an interim basis. This means that it is an interim order in an existing claim. However, in this situation, you can make an interim application and undertake to issue the claim it is interim to within an agreed period of time, eg 3 working days.
2. You will need the following items to make your application, which should normally be in your local County Court:

- an Interim Application Notice form (downloadable from the HMCS site);
a Witness Statement setting out what has happened and how it is affecting you and others;

• a Draft Order of the Order (s) you want the Court to grant (example separately).

• the Application Fee, or else Form EX160 with evidence of your benefits or income

If the Defendant is making your life a complete misery and won't go through proper processes, you may want to ask for an Unless Order (link to separate thread) requiring them to take you to Court within the next 28 days or never contact you again. (These are relatively easy to get, as the Courts do not like Ocs or DCAs trying to extort money by bullying instead of resolving the dispute through the courts and the legal system). If they have a genuine claim which will stand up to scrutiny, why should they not issue in Court ? If you accept their claim, in full or in part, you can still negotiate and/or offer to pay, either in full or by installments.

1. You should normally expect to go before a Judge on the day when you take these documents into the court office, so be prepared for doing this, and if possible dress suitably, dark suit if possible if not jacket and tie for guys and neat dark clothes for women; avoid jeans, trainers and leggings.
2. Be prepared that you will need to issue the full claim against the Defendant for their Harassment within a very short time eg 3 days, so as soon as you are able, get working on this. A Claim under the Protection from Harrasment Act needs to be issued using a Part 8 procedure not Part 7 (see separate post). It is automatically allocated to the Multi-Track. The final disposal of the case has to be by a Circuit Judge, but a District Judge can grant an Interim Order.
3. If you are granted the Order you apply for, it is time limited and will have a return date for going back to court. The Defendant will very likely be extremely keen to settle with you in the meantime, so think about on what terms you might be willing to settle, eg drop all claims against you; remove all relevant defaults from your credit files, never contact you again etc.

[labman]

Re: Creditor Harassment

They will argue their side to this, that you would almost certainly have been told, when the DMP was accepted, that you would continue to get letters etc... demanding payment, but to ignore them.

However, if you feel the level of phone calls has gone well beyond this, as it sounds, then I would send this to start with:


Dear Sir,

Your Ref: abc123

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 requested that these stop both verbally and in writing, yet am still receiving calls. I would reiterate my previous request for your compliance with my rights under the OFT Debt Collection Guidelines, for all further correspondence to be made solely in writing for the avoidance of doubt.

I believe your continued harassment 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, 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. This would make you liable to a substantial fine and/or other sanctions as they see fit.

Any further telephone calls from your company may be recorded and used in evidence. I demand that this harassment to cease immediately.

Yours faithfully,



If they ignore that, then there is a stronger one you can send.

In answer to your questions, I doubt you have a case as yet, but once you send this letter, log all calls and start building your case. Evidence is critical, and it is frowned on in case law (see Link vs Harrison)

[charitynjw]

Re: Creditor Harassment

They will argue their side to this, that you would almost certainly have been told, when the DMP was accepted, that you would continue to get letters etc... demanding payment, but to ignore them.

However, if you feel the level of phone calls has gone well beyond this, as it sounds, then I would send this to start with:


Dear Sir,

Your Ref: abc123

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 requested that these stop both verbally and in writing, yet am still receiving calls. I would reiterate my previous request for your compliance with my rights under the OFT Debt Collection Guidelines, for all further correspondence to be made solely in writing for the avoidance of doubt.

I believe your continued harassment 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, 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. This would make you liable to a substantial fine and/or other sanctions as they see fit.

Any further telephone calls from your company may be recorded and used in evidence. I demand that this harassment to cease immediately.

Yours faithfully,



If they ignore that, then there is a stronger one you can send.

In answer to your questions, I doubt you have a case as yet, but once you send this letter, log all calls and start building your case. Evidence is critical, and it is frowned on in case law (see Link vs Harrison)

Shome mishtake, shurely! lol

(Only kidding, labman! )

[labman]

Re: Creditor Harassment



I do actually wonder whether judges do frown on good evidence sometimes!

[lindalou]

Re: Creditor Harassment

Hello
I hope nobody minds a minor point here.
The CPUTR regs have amended s40 of the Administration of Justice Act as follows:
13. In section 40 of the Administration of Justice Act 1970 F8 (punishment for unlawful harassment of debtors), after subsection (3) insert—
"(3A) Subsection (1) above does not apply to anything done by a person to another in circumstances where what is done is a commercial practice within the meaning of the Consumer Protection From Unfair Trading Regulations 2008 and the other is a consumer in relation to that practice."
So your lettr should read ,”An offence under the CPUTRS”
LL

[SpringerSpaniel]

Re: Creditor Harassment

Labman's advice is usually good, but on this occasion, I do not agree wiht the point that you do not have a case yet.

I won a case against Lovells where the harrassment was actually a lot less bad than this, they couldn't settle fast enough.

DCAs don't like having their bluff called; courts do not like attempts to bully people into paying money they dispute or cannot afford instead of going through court.

[SpringerSpaniel]

Re: Creditor Harassment

If you have suspected cancer, the Macmillan Fund have a financial and welfare advice service, which is very good. They may able to help.

[bluebottle]

Re: Creditor Harassment

RE: PROTECTION FROM HARASSMENT ACT 1997

There are, basically, three sections within the Act that are relevant in dealing with bailiffs, DCAs and creditors who engage in harassment, which includes persistent telephone calls, contacting employers and neighbours, etc..

Section 2 creates the offence of harassment.

Section 3 provides a civil remedy for dealing with harassment.

Section 7 provides that any person who aids, abets, counsels or procures another in any course of conduct amounting to harassment shall be treated as having committed the same offence as the principal offender.

In dealing with bailiffs, creditors and DCAs who engage in conduct amounting to harassment, it is best for those being targetted by them to collate evidence (recordings of phone calls, letters, video evidence, written statements from neighbours, employers, etc.) and then use the civil remedy provisions under Section 3 to lay the evidence before a judge at the County Court (or High Court) and obtain an injunction preventing any further harassment. Although the subject of an injunction under Section 3 can apply to have the injunction lifted, the target can oppose the application or have the injunction reimposed.

Where the subject of an injunction breaches the injunction, the target can apply to the court that issued the injunction for a warrant to be issued for the arrest of the person against whom the injunction has been made.

Section 3 prescribes penalties for non-compliance with an injunction, granted under the Act, of a fine of up to £20K, or a term of imprisonment not exceeding six months or both, on summary conviction, or an unlimited fine, or a term of imprisonment not exceeding five years or both, on conviction on indictment.

Where harassment is evident, any person being so harassed would be well-advised to send a Signed For letter to the bailiff, creditor or DCA involved, warning them that their conduct amounts to harassment and may result in legal action being taken against them if it does not desist immediately.

I am in the process of putting together a template letter that could be used in such cases.

Bluebottle