Debt Collector Guilty of Criminal Conduct - S2 Fraud Act 2006? (False Representation)

[oldgeezer]

A debt collector sent me an invoice on the headed notepaper of an estate agent demanding payment of thousands of pounds for alleged non payment of an outstanding estate agency debt. After receiving it through the post I truly believed that the said invoice had been issued by the estate agency but I have 100% written proof that the invoice had actually been raised by the the debt collector using the name of the estate agent and without the direct knowledge of the estate agent.

It had also been the debt collection agency itself, and not the estate agent, which had "identified" the outstanding "debt" after consulting Land Registry records. The estate agency had given the DCA blanket permission to trace, trace, follow up and instigate debt collection proceedings COMPLETELY INDEPENDENTLY of the estate agency.

I referred the matter to the Property Ombudsman which ruled in my favour. I owed nothing to anyone. I have also been in long discussions with the Credit Services Association , the trade body which protects the interests of the debt collection industry. I alleged that the dodgy DCA had broken several clauses of the CSA's own Code of Practice, but the CSA maintained that the DCA had done very little wrong. The CSA protects its own.

My question is, irrespective of other considerations (such as an existing civil "contract" between estate agency and debt collector to allow the debt collector to track, trace and follow up outstanding agency "debts") is it possible that the debt collection agency has committed a S2 fraudulent act ( Making False Representation) under the Fraud Act 2006? It is my firm intention to lodge a case with the Police alleging criminal activity.

As far as I can see all the elements of commiting the offence of making false representation are there:The debt collectors' actions were dishonest, they made a false representation , they intended to make a gain for themselves or other and they intended to cause a loss to another.

Any advice gratefully received! What are my chances of success?!

[islandgirl]

You spotted the fraud and did not lose any money. I personally would say the Police will not be at all interested.

[oldgeezer]

Thank you for your thoughts... gratefully received... My position is that this is the "thin end of the wedge"... if this has happened to me it is happening to people in wider society on an industrial scale.... what on earth are debt collectors doing issuing debt collection notices with invoices attached which use the logos of their "client" firms and which are then sent out to "customers?"There was NEVER any indication that the invoice had in actual fact been issued by the debt collection agency and NOT by the instructing (estate agency) client. This is outrageous!
Whether I spotted the alleged fraud is immaterial? You have to look at the INTENTIONS of the perpetrator.?.. and the intention of the DCA was to con me into believing that it was the estate agency which had issued the debt collection notice.

[islandgirl]

I absolutely agree that it is wrong and would look if I could complain again to their regulatory body. But in an overwhelmed justice system with no spare resources this is right at the bottom of the priority list even if it were to class as a crime and I do not think the Police will touch it. Fraud by false representation does appear in my court sometimes but I have never seen it in this context. Here is some CPS info https://www.cps.gov.uk/legal-guidance/fraud-act-2006 and the sentencing guidelines https://www.sentencingcouncil.org.uk...rt/item/fraud/
This will give some indication of the complexity.

[echat11]

There are regulatory bodies that would be interested, who might initiate an investigation if it's happening on an 'industrial scale'.

Namely the Financial Conduct Authority and Trading Standards.

[PallasAthena]

It is not obvious to.me that the 'crimes' you have identified actually exist. Serious errors in wrongly identifying you as a debtor clearly do exist but that doesn't make it a crime.

The law of Agency is complex and I am no expert on it but there seems to be no reason in principle why the EA couldn't appoint the DCA as its general agent for the purpose you describe. Use of the EA's letterhead would, presumably, identify the EA as the principal.

We don't have much detail but how would you show that the DCA knew you weren't the debtor when they issued their letter but deliberately issued it anyway to get money from you? I imagine the DCA's defence to a Fraud Act allegation would be along the lines that they believed that you were the debtor and had taken reasonable steps to confirm that before contacting you.

The fact that it subsequently turned out they had wrongly identified you would not automatically make it fraud.

Let us know what the police say when you report it.

[echat11]

This could lead debtors to make decisions they wouldn't otherwise make, because of the 'misrepresentation' in the invoice / letters.

The OFT, is now the FCA, the Debt Collection Guidance is still current.

https://www.top-service.co.uk/upload...nce%202003.pdf

For them to investigate, there needs to be quite a few complaints.

'A debt collector sent me an invoice on the headed notepaper of an estate agent demanding payment of thousands of pounds for alleged non payment of an outstanding estate agency debt. After receiving it through the post I truly believed that the said invoice had been issued by the estate agency but I have 100% written proof that the invoice had actually been raised by the the debt collector using the name of the estate agent and without the direct knowledge of the estate agent.'

I agree the CSA isn't fit for purpose, might as well not exist.

'I referred the matter to the Property Ombudsman which ruled in my favour. I owed nothing to anyone. I have also been in long discussions with the Credit Services Association , the trade body which protects the interests of the debt collection industry. I alleged that the dodgy DCA had broken several clauses of the CSA's own Code of Practice, but the CSA maintained that the DCA had done very little wrong. The CSA protects its own.'

[oldgeezer]

Thank you for your comments.....I have complained to the FCA but unfortunately estate agency debt does not fall within their remit.

When they issued the invoice on the headed notepaper of the EA, the debt collection agency (DCA) did not take any reasonable steps to ensure that I actually owed the alleged outstanding debt. I had already paid an agency commission fee to a SECOND estate agent so there was no way that I owed any money to the FIRST EA . The FIRST EA gave the DCA the authority to independently identify, trace any outstanding debts.... and the DCA made no effort to make any preliminary enquires to ascertain whether I actually owed an outstanding debt. So I had to go through the lenghty process of complaining to the Property Ombudsman to prove that I indeed, owed the first EA nothing.

The law may say differently (?) but In my eyes issuing an invoice on the headed notepaper of an EA and then sending that invoice to a "customer" ( ie myself) attached to a threatening email is highly duplicitous and a dishonest practice, irrespective of any civil contract entered into between the frist EA and the DCA.

Are all the elements of a S2 Fraud Act present? Not sure..maybe clutching at straws here! Could be a long s-t-r-e-t--c-h. If S2 of the Fraud Act is not appropriate, is there anything else?

Dishonesty
As a result of scouring Land Registry Records, the DCA came to the belief that I owed an unpaid EA commission debt. By the objective standards of ordinary people, the DCA's conduct in thereafter issuing a preliminary debt collection notice in the name of an EA was dishonest, insofar that the "professionals" at the DCA should have made further enquiires to ascertain whether I had already paid an agency debt to a second agent. The professional at the DCA knew, or should have known, that they needed to make further enquiries to ascetain whether an agency commission debt had already been paid. The Land Registry should not be used as the final arbiter of truth.

False Representation
The representation was false insofar that the invoice had been issued by the DCA and not, as was originally claimed, by the first EA. Any 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.

Untrue or misleading
The DCA knew that the representation, made by sending me an invoice puporting to be from the EA, had been untrue and misleading.

Intent to make a gain for himself or another, to cause loss to another or to expose another to risk of loss.
The intent had been to make me pay an agency commission debt which I had already paid to a second EA.

[echat11]

Contact Trading Standards via CAB.

Also contact your MP.

Everyone gets what you are saying, but unless there is a 'zombie apocalypse' the police won't look into your complaint. Trading Standards will.

[oldgeezer]

Thank you for your advice..I had not previously thought of trading standards. I will give that a try

I have focussed much of my efforts on complaining to the Credit Services Assocation, the trade association which represents the DCA and the debt collection industry. I have a lot to say about the workings of the CSA and its contempt for people like myself. The CSA gives the illusion that it is fair and objective, but from my experience it is just a "shop front" which provides a modicum of respectability to the debt collection industry. To give but some examples... from information I have garnered from Companies House, the CSA will now only investigate "serious" breaches of its Code of Practice and not mere "breaches" ( which it used to do) In addition there is no information anywhere about what constitutes a "serious breach", as opposed to a "breach" of the Code.Their Code of Practice is also vague, woolly and open to subjective interpretation.

I sent a 5000 word dossier to a high ranking director of the CSA alleging malpractice at both the DCA and the CSA, but (as is to be expected) he disregarded my complaint and failed to engage with me in any serious way.

Any ideas of anyone I can lobby? ( excluding my MP who has not bothered to reply!) I may be onto a loser here,but I would like to keep going (for now!)

[echat11]

The CSA won't investigate a 'member' because the 'member' contributes financially to the CSA. So it's a matter of their 'existence'.

You could by pass your local MP, go straight to Head of Government who deal with 'financial matters' etc.

[PallasAthena]

We seem to have moved on to professional regulation and codes of conduct (although EAs and DVAs are all sharks not professions IMO) and away from crime.

I remain unconvinced that any crime has taken place. But there has likely been unfair and unreasonable practice by the DCA. But no surprises there, DCAs are notorious for their lack of ethical.standards. But that doesn't make them criminals (unfortunately).

There is no point in involving statutory financial regulators on this because estate agents fees are not a regulated financial activity. In fact, they are not a financial activity at all. They are just fees for providing a service. They are akin to the much larger area of DCA activity, private parking charges (also just fees for a service and not regulated).

Regulated financial activity is primarily about consumer credit and loans, not fees for services. Which is why FCA declined to get involved.

[des8]

FOS might help (https://www.financial-ombudsman.org....ebt-collection)

Have you considered the Consumer Protection from Unfair Trading Regulations 2008 (https://www.legislation.gov.uk/uksi/2008/1277/contents0

[oldgeezer]

Thank you for all the advice I have received from various contributors. Having read the threads and looked closely at S2 of the Fraud Act 2006 I am also now of the opinion that no fraudulent activity has taken place. I have tried the Financial Ombudsman Service but they wont touch the matter because they do not cover estate agent commission debt.

I ll try Trading Standards next.... I ll let you know how I get on.....

All I do know is that the Credit Services Association is a trade body which pays lip service when it comes to regulating its members... it provides a veneer of respectability to the Debt Collection Industry and lobbies hard to reduce bureaucracy, and thereby increase its members' profits.....What is good for society ( a reduction in the number of referrals to DCA's) is not good for DCA's.

If you know of anyone conducting research into the debt collection industry in general, and the CSA in particular, I would be pleased to pass on any information. I have had extensive email exchanges with various people at the CSA as well as a very senior director