MACKENZIE

Re: MACKENZIE

The cuptr is legislation

CONSUMER PROTECTION
The Consumer Protection from
Unfair Trading Regulations 2008
Made - - - - 2008
Coming into force - - 26th May 2008
The Secretary of State, being a Minister designated(1) for the purposes of section 2(2) of the
European Communities Act 1972(2) in relation to measures relating to consumer protection and to
the control of advertising, makes the following Regulations in exercise of the powers conferred upon
him by section 2(2) of that Act;
In accordance with paragraph 2(2) of Schedule 2 to that Act(3), a draft of this instrument was laid
before Parliament and approved by a resolution of each House of Parliament.

D

[teaboy2]

Re: MACKENZIE

Hi yes, sorry that was in section 3 not 3A.

But it doesnt change anything as we all know that DCA's mislead people on the phone as to their legal rights etc and make aggressive threats, designed to intimidate people into paying regardless as to whether they owe the debt or not. Fact is the CUPTR 2008 sections 3 - 7 i believe, prohibit such practices and therefore deem them as unfair commercial practices, as such they are therefore not a commercial practice in regards to section 3a of the administration of justice act 1970.

[miliitant]

Re: MACKENZIE

It is universally accepted that the act does not apply to cca contracts, has been for years

that may be the case but until i see either a change of statute, or case law

i go by written legislation

i do not even trust guidance issues, as stated, statute or case law holds the field

[teaboy2]

Re: MACKENZIE

The op admits he is the debtor, Just disputes the amount owed, or so i thought ?

AJ act don't apply. No flaws in my logic, look it up

D

No they admit to only having a debt to a payday loan company! The OP did not admit to owing this debt of £1011 that they are being chased for (which they would be doing if they had followed your intial advice). Not only that they have no way of knowing if Mucky Macs are actually chasing them for their actual debt, or for someone else, or if this debt is their original debt or one that was taken out in their name for a different amount without them knowing.

Making the automatic assumption that it is their debt, without having all the facts (which are provided by the DCA in return of a proof it letter and in response to a subject access request), is not only highly dangerous but could also be a very costly mistake.

And yes the Administration of justice act 1970 does apply if the DCA breaches the protection from harassment act by not acting reasonable. What part of the definition of the word reasonable do you not understand. Or are you saying it is perfectly reasonable to call someone more than 3 times a day on a daily or frequent basis, despite the alleged debtor requesting no contact be made by phone as they deem it as harassing! Clearly not as to say that, you might as well be condoning DCA's for telephone harassment. The only time when a DCA is not in breach of the Administration of justice act 1970 is when they act reasonable in regards to contracting the person liable and the frequecy of their calls pass the Reasonableness test in court (which is highly unlikely to pass if they phone the other party despite being told by said party that they deemed the calls harassing and wish to be contacted in writing only). Even then they party they are contacting must be proven to be the party that is liable under contract - In anycase section 40 of the administration act 1970 is a deminis issue as the protection from harassment act 1997 is just as powerful and a breach of that is a criminal offence. Plus it does not protect companies when acting commercially or when contacting the party liable under a commercial contract. So its irrelevant whether section 40 of the administration act applies or not, which in my view it does apply if the a company has acted unreasonably when contacting a person liable under commercial contract, such acts that would be deemed unreasonable would include misleading the other party as to their rights, making threats that in an attempt to mislead the other party and or abusive language as well as what i have mentioned earlier in the thread and in this post.

You are stating it does not apply simply under the assumption that they are acting reasonably but there is a fine line as to what is consider reasonable and what is not, if that line is crossed then YES they are in breach of section 40 of the administration of justice act 1970. You see such unreasonable, misleading or aggressive practices are deemed unfair under the CUPTR 2008 and therefore the offending company is not protected under schedule 2 regulation 13 or section 3a of section 40 of the administration of justice act 1970 as such actions are not consider a commercial practice, but are consider as an UNFAIR commercial practice.

[miliitant]

Re: MACKENZIE

i am hitting the books myself to get confirmation

Re: MACKENZIE

The key word in section 3A that was inserted as a result of the Consumer protection from unfair trading act is the word "reasonable".

evening teaboy

care to expand on this for my own knowledge base as this is a trident missle we can now use in harassment cases by over zealous DCA

Not overly sure, this is the section that modifies the function of the act.

Administration of Justice Act 1970
13. In section 40 of the Administration of Justice Act 1970(19) (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.”.

It is universally accepted that the aoj act does not apply to cca contracts, has been for years.

D

[miliitant]

Re: MACKENZIE

please elaborate davyb for my own education

Re: MACKENZIE

I agree. But i disagree with your comment regarding the data protection act 1998 as they are may already be in breach of this, if the OP's other halve is not the real debtor or liable for the account in question. Plus if a person a makes an allegation against another person, it is for the claiment to prove the allegation is true. They therefore have a legal duty to provide proof that the OP's other half is the actual debtor and is liable for the debt. Not only that, but as they have already seen fit to write to them regarding the debt then the simple response to such a refusal by them to provide proof due to data protection act is this -

"Further, I note that you have sent statements (remove if statements have not been recieved) and correspondence containing sensitive private information to me at same address as that detailed in my request. If you are concerned that you are not corresponding with the correct person, then I wonder why you have not verified the information before.

As you are aware, disclosing data without adequate checks of identity is contrary to the 7th principal of data protection, listed in schedule 1 of the Data protection Act 1998. The time to confirm my identity was before you sent your first threat letter.

As you have seen fit to disclose sensitive information already then you clearly know exactly whom i am, therefore your refusal to disclose prove due to data protection act 1998 is unacceptable as you have already disclosed details regarding this alleged debt that you alleged is owed by myself, and as such the onus of proof is on you to prove such allegations that the debt is mine or that i am liable for it - You have a legal obligation to provide this information"

Along with sending the Proof it template also send them the following:

"Company Name
Road
Town
City / County
Postcode

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.

The OP has said nothing about the quantity of calls, jumping the gun here a bit

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.

Not applicable, the 77 act may Apply but not with the present causality

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.

Insufficient Cause
Be advised that any further telephone calls from your company will be recorded. (**Even if you don‘t yet have recording equipment!!**)


Yours faithfully,



[NAME HERE]
Print your Name, DO NOT sign by hand."

You can send this if you want, but it will make absolutely no difference to what they do.

If you do not intend to pay then it would have the same outcome , if you just ignored them. Six months time they will sell it on and you will get a whole new set of calls and letters and so on, until it becomes stat barred in six years.
If that is the path you want to follow, then Teaboy is the man for you.

D

[miliitant]

Re: MACKENZIE

The key word in section 3A that was inserted as a result of the Consumer protection from unfair trading act is the word "reasonable".

evening teaboy

care to expand on this for my own knowledge base as this is a trident missle we can now use in harassment cases by over zealous DCA

Re: MACKENZIE

The op admits he is the debtor, Just disputes the amount owed, or so i thought ?

AJ act don't apply. No flaws in my logic, look it up

D

[teaboy2]

Re: MACKENZIE

Hi
Gosh teaboy you do go on a bit


I also have dealt with hundreds of cases possibly thousands of debt issues in the last twenty years, in the last few years Wonga and Mc'y hall many many times.

So much for that.

Threatening with the admin of justice act wont work it no longer applies to commercial contracts like this hasn't since 2008(CUPTR's). NOr will the DPA nor will the sorry whatever. They wont care they will just keep pursuing the debt until they have some kind of repayment deal in place, or they give up.

In the first post the O,P said he wanted to repay the debt he owed, fair enough so he needs to find out how much it is and then set up a repayment plan, like i said not rocket science.

D

The highligted section above just proves your view is flawed. The administration of justice act still does apply if they knowingly act in breach of the protection from harassment act or have not yet proven that the debtor is the actual debtor. According to your view the DCA can frequently make phone calls to a person, purely because they believe they are the debtor. That is not the case, plus they must also respect the alleged debtors request for communication to be in writing only and their wish to not be contacted by phone. If they are contacting a person whom is not the alleged debtor on the believe they are, when it has not been proven as such then it is a breach of the administration of justice act 1970 via a breach of the protection from harassment act 1997. Not only that in order to not be in breach of the administration act 1970 the DCA must act reasonably. IN other words, they should not act in a way that amounts to harassment under the protection from harassment act 1997 as if they do then they will be in breach of section 40 of the administration act 1970 - The key word in section 3A that was inserted as a result of the Consumer protection from unfair trading act is the word "reasonable". I hardly say calling more than 3 times in one day or on a daily basis or when the alleged debtor has told them not to contact them by phone but in writing only as they find the calls harassing, as reasonable. As for the Data Protection Act 1998 not applying, well thats incorrect, the data protection act 1998 does apply and governs how the DCA uses the alleged debtors data, it applies all the time whilst the alleged debtors personal data is being processed by any one other than the data subject themselves.

As for me going on a bit - Well sometimes it is required in order for the OP to get the correct information.

As for your last sentence, i agree. But then that last sentence describes exactly what i have been saying all along, and is contradictory to your advice in regards to including a statement of willingness to offer a repayment plan.

As for your claims to dealing with hundreds of similar case - Well we only have your word to support that, don't we! But its clear to me that your way of handling the matter with your suggestions that they should show willingness to enter a replayment plan - which would result in the debtor acknowledging that they are liable for 5 times the actaul original debt and your complete disregards to the importance of requesting copies of the CCA which you in your own words said "In either case a cca request is less than useless." Which although is an ambiguous statement, my interpretation is that you do not believe they would have been of any usefulness, despite the fact they are what regulate the loan and if they are legally unenforceable then the DCA/Creditor can not enforce the debt and the debtor would not be legally required to pay anything back as the loan will have been made unlawfully. So that says to me you have a lack of understanding on how the law works in regards to these issues.

Basically Davyb - Your intial advice goes against the most used commonly used method used on all consumer forums when it comes to dealing with this issues.

Yes the OP wants to repay the debt, but then thats their choice. But at the same time they need to know whether they are actually legally required to pay anything back, and more importantly whether the debt is actually theirs in the first place before they make any mention of any repayment plan or offer to repay.

Re: MACKENZIE

Hi
Gosh teaboy you do go on a bit


I also have dealt with hundreds of cases possibly thousands of debt issues in the last twenty years, in the last few years Wonga and Mc'y hall many many times.

So much for that.

Threatening with the admin of justice act wont work it no longer applies to commercial contracts like this hasn't since 2008(CUPTR's). Nor will the DPA nor will the sorry whatever. They wont care they will just keep pursuing the debt until they have some kind of repayment deal in place, or they give up.

In the first post the O,P said he wanted to repay the debt he owed, fair enough so he needs to find out how much it is and then set up a repayment plan, like i said not rocket science.

D

[teaboy2]

Re: MACKENZIE

If you do as i said in the first reply you will remove the need for any other correspondence, this is not complicated.
You are willing to repay but first you need to know exactly how the figure they have was arrived at, once you are agreed on a sum owed you will propose a repayment plan.

The other option is to refute the debt completely, which will mean they will pester you interminably, it is unlikely that they will take you to court, so if you can put up with that then militant and teaboys advice is for you - Perhaps you did not see the Telephone harassment letter that was part of my last post!!

D

DavyB.

Your advising the OP to state willingness to offer repayment plan is acknowledging the debt of £1011. It is foolish, as 1 - you do not know if this debt is actually that of the OP's other halve and 2 - nor do we know what the actual amount is that is actually owed or whether the DCA or Creditor is entitled to be repaid. You advice would lead to the OP acknowegding a debt that is 5 times more than what they actually owed for the original loan that was theirs.

Not only that, following mine and militants advice will not lead to the OP or their other halve being pestered even more about the debt (For you to state such, it is a clear sign of your lack of expereince in the field). In fact it is a proven method for dealing with DCA and Creditors and has been proven to reduce the actual amount of phone calls and correspondence, e.g. if forces the DCA to constructively communicate in writing and provide the proof requested and forces them to stop the telephone calls and threatograms, whilst the account is in dispute, due to risk of being sued by the alleged debtor for breach of the protection from harassment act 1997.

I personally have dealt with hundreds of issues regarding DCA/Creditors chasing alleged debtors for debts and have used the same method each time. IF once the charges have been deducted and the DCA has proven the debt is that of the OP's other halves and that the CCA is enforcable, then that is the time to talk about making repayments, not before.

Its clear you do not have as much experience in dealing with these issues as myself and militant have. But to openly criticise and make post containg false claims about what will happen as a result of following mine and/or militants advice, just to get the OP to follow your advice - Well that is a step to far Davyb. There is a reason as to why i am a VIP working group member, and that is my experience in these matters and knowledge of the law itself.

To say this is not complicated is nothing more than an incorrect statement as this is indeed complicated and it is regulated by the law, showing any willingness (in writing) to enter a repayment plan, is deemed legally as acknowledging the debt and the current amount that is being demanded at the time such acknowledgment is made. Hence why it is vital no such acknowledgement is made at this time. Following your advice will result in the OP's other halve having to repay £1011 instead of £206 or in worse case scenerio, should it be that this is not the OP's other halves debt that they are being chased for, your advice could well result in the OP's other halve acknowledging liablity for a debt that is not even his, and having to pay a debt that is not his.

Re: MACKENZIE

If you do as i said in the first reply you will remove the need for any other correspondence, this is not complicated.
You are willing to repay but first you need to know exactly how the figure they have was arrived at, once you are agreed on a sum owed you will propose a repayment plan.

The other option is to refute the debt completely, which will mean they will pester you interminably, it is unlikely that they will take you to court, so if you can put up with that then militant and teaboys advice is for you

D

[teaboy2]

Re: MACKENZIE

simple thing is to respond and say you know nothing of any debt owing to xyz dca and to get them to prove the debt

they will not do that as under the data protection act, unless they are sure that you are the account holder, they cant discuse the account with anybody

thats why a dca wants a payment of £1 over the phone when you phone them, it acknowledges the debt, you are confirming you are the account holder, and negates the statute of limitations

just send them the prove it template

I agree. But i disagree with your comment regarding the data protection act 1998 as they are may already be in breach of this, if the OP's other halve is not the real debtor or liable for the account in question. Plus if a person a makes an allegation against another person, it is for the claiment to prove the allegation is true. They therefore have a legal duty to provide proof that the OP's other half is the actual debtor and is liable for the debt. Not only that, but as they have already seen fit to write to them regarding the debt then the simple response to such a refusal by them to provide proof due to data protection act is this -

"Further, I note that you have sent statements (remove if statements have not been recieved) and correspondence containing sensitive private information to me at same address as that detailed in my request. If you are concerned that you are not corresponding with the correct person, then I wonder why you have not verified the information before.

As you are aware, disclosing data without adequate checks of identity is contrary to the 7th principal of data protection, listed in schedule 1 of the Data protection Act 1998. The time to confirm my identity was before you sent your first threat letter.

As you have seen fit to disclose sensitive information already then you clearly know exactly whom i am, therefore your refusal to disclose prove due to data protection act 1998 is unacceptable as you have already disclosed details regarding this alleged debt that you alleged is owed by myself, and as such the onus of proof is on you to prove such allegations that the debt is mine or that i am liable for it - You have a legal obligation to provide this information"

Along with sending the Proof it template also send them the following:

"Company Name
Road
Town
City / County
Postcode

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,



[NAME HERE]
Print your Name, DO NOT sign by hand."