Telephone Harassment, Carey, Kotecha, Harrison et al

[Paul.]

Okay, where do we start.

Telephone contact with Debt Collection Agencies (DCA)

It is often said that you should not speak to DCA or Creditors on the phone, why? I see no reason why you should ignore them, indeed if Mr Harrison did this in his case he would have lost on that point im sure!!!. Why? Well it seems the view coming from the Courts in light of Harrison is as follows.

Totally ignoring any and all contact will make you look like the “filthy debtor” who is hell bent on avoiding his debt at all costs. You do not want to look like this, do you?

First rule of telephone contact (and written contact too) is logging everything down, with written correspondence KEEP EVERYTHING including envelopes. With telephone calls, log date, time caller ID and the name of the person calling, they should not have an issue with giving you their name and the company they are calling from.

Be polite, the last thing you want is the transcript of you telling the DCA to go fornicate going before the judge in your trial, remember FILTHY DEBTOR vs WRONGED CONSUMER, I know who I would want the judge to look on me as

So, you need to explain to the DCA why you aren’t paying them, if you cant afford what they are asking for then tell them you cant afford it but you are prepared to offer £…….. as this is all you can afford. Why, well, we all know the breach of s78(1) Consumer Credit Act is NOT a valid reason to withhold payment nor is it recognised by the Office of Fair Trading as a basis for a valid dispute. I submit that this is the view the Court would take too.

You must be polite to these people even if you really hate them, it will benefit you in the end.

So, when you have finished with the call, write to the DCA confirming the contents of your telephone convestaion setting out what you can afford to pay their client or themselves. This will help later.

If they then start calling, which I expect that they will, politely tell them that you have already advised them of what you can afford, there is nothing more to discuss unless they are prepared to accept the offer.

My guess is that from here they will either A accept or B undertake lots of calls to you .

If they accept payment then happy days, if they start unreasonable telephone calls then happy days also. Why ? well lets go back to Harrsion v Link @ para 53


The calls were a form of torture oppressively frequent in amount and often without attribution to an identifiable number. I am unimpressed by suggestions that all that the Claimant had to do was to seek a meeting when the position was that those who called him would not listen to what he had to say of his difficulties. Nevertheless I am not entirely impressed by the Claimant’s failure to write a detailed letter in which he set out his position. I sense that the Claimant wished to engage upon his own terms albeit in no negative fashion.


And also Para 83

Cumulatively and damningly is what I find to be the way that MBNA and the Defendant went about recovering their debt. I am satisfied that the Claimant’s description of the way that he was hounded by his creditors is essentially correct not least in the use of “non-traceable” telephone calls. It seems to me that such conduct has no proper function in the recovery of consumer debt. Whatever the strength of the suggestion that the courts should only be a last resort, I can see no legitimate comparison between a series of measured warnings which, after full opportunity for response, lead to legal proceedings and what took place. Even more is the situation to be deprecated when it was only well into this action that the Defendant was able to comply with section 78 and thus able to pursue a claim. An inability to comply with section 78 can be no excuse for conduct of which it must be supposed the sole purpose must have been to make the Claimant’s life so difficult that he would come to heel. I cannot think that in a society that is otherwise so sensitive of a consumer’s position this is conduct that should countenanced.

The message of the Harrison judgment is don’t ignore and refuse to correspond with the opponents, they don’t have leprosy or any other disease, so there is nothing wrong in talking to them. At the end of the day, just keep in the back of your mind that each call adds to your evidence if they sue you and take you to Court.

As I said, writing to them to confirm the situation really does assist as HHJ Chambers QC pointed out in Harrison above.

That way, if you have told the DCA your financial situation and made it clear what you can afford, and written to the to say this is what I can pay you and they ignore this and engage the constant bombardment of calls then this will assist with evidence of their unreasonable conduct should the matter come to litigation later.

Also I would point out that if you find the calls (level and frequency or content) upsetting then make this clear to the person on the phone and put it in the follow up letter to the DCA making it clear but don’t be rude as this goes against you.

As I said, Mr Harrison would not have won his case if he had ignored every call and not spoken to the DCA, the Key is that he told then why he wasn’t paying, what had gone wrong, why he didn’t want the telephone calls and then wrote to the company to affirm that too.

I appreciate that these calls are upsetting but its far more upsetting if you lose in Court, Put yourself in the Judges shoes, who would you help, the Filthy Debtor intent on debt avoidance or the consumer who had tried to sort things out but had been ignored and harassed?

Also you should have regard for the new OFT Guidelines on irresponsible lending. They contain a section on dealing with people in debt and defaulted accounts.

http://www.oft.gov.uk/shared_oft/con...oft1107con.pdf

Page 44 onwards is where the guidance starts. Read it and understand it. If you need some assistance then ask and we will try and help.

I intend to cover a number of other points in this thread concerning Default notices, true copies of credit agreements under s78 and further points on dealing with DCAs. I simply have not had time to finish this as yet.

[caspar]

Re: Telephone Harassment, Carey, Kotecha, Harrison et al

I think the ignoring calls was, "for the avoidance of doubt." Obviously if you have an accurate record of the call it is a different matter, but for those who don't they have no evidence as to what was said etc....

I always answer them as all calls are recorded, so it doesn't bother me. As you say, they don't have leprosy and can usually be easily outmanouvered on the telephone as they don't actually know that much.

[MustGetStraigh]

Re: Telephone Harassment, Carey, Kotecha, Harrison et al

That's really interesting Paul. For the last year or so I've taken the tack that I don't answer any call if I don't recognise the number. There are a couple of DCAs I do speak to because they are reasonable to deal with, but the rest I only deal with in writing.

One of them on the telephone recently (Rockwells) asked if I had considered taking a loan or putting the balance on another credit card to pay it off... so I asked in future to have any correspondence with them in writing only as I didn't think they were obeying OFT guidelines with what they told me on the phone.

With hindsight I wish I had kept a log. I remember one DCA (no longer dealing thank goodness) who had me in tears with their contstant calls - at one point I missed the mortgage because they persuaded me to pay much more than I could afford. Now I'm in a better place and don't think that they would "get " to me again like that so maybe I should start answering !

Mind you they hardly ever ring now.

[Paul.]

Re: Telephone Harassment, Carey, Kotecha, Harrison et al

That's really interesting Paul. For the last year or so I've taken the tack that I don't answer any call if I don't recognise the number. There are a couple of DCAs I do speak to because they are reasonable to deal with, but the rest I only deal with in writing.

One of them on the telephone recently (Rockwells) asked if I had considered taking a loan or putting the balance on another credit card to pay it off... so I asked in future to have any correspondence with them in writing only as I didn't think they were obeying OFT guidelines with what they told me on the phone.

With hindsight I wish I had kept a log. I remember one DCA (no longer dealing thank goodness) who had me in tears with their contstant calls - at one point I missed the mortgage because they persuaded me to pay much more than I could afford. Now I'm in a better place and don't think that they would "get " to me again like that so maybe I should start answering !

Mind you they hardly ever ring now.

Telephone harassment is horrible, truly horrible, Ive been through it myself, so i can speak from my own experiences to. This is why it is so important to use the ammunition that the DCAs present you against them.

The fact they asked you about taking a loan to increase your indebtedness is shocking and would be very helping in the event that this matter ever saw the inside of a Court room, but if you present a list of calls as long as your arm in your defence to the claim against you then in light of Harrison vs Link, its likely that any DCA will run for the hills

but from here on, make sure you log everything down as it is soo important to have a trail of evidence.

[Never-In-Doubt]

Re: Telephone Harassment, Carey, Kotecha, Harrison et al

However,

This course of action is ONLY necessary on debts you are unsure of. You do not speak to them on the phone; sorry but it goes against EVERYTHING I believe in and isn't necessary for the majority of users here as we fight UE and don't plan on court!

The oft have set procedures and 3-4 calls per day is suffice. More than this get a complaint in!!!

I fully appreciate Harrison et al but no 2 judges and no 2 cases are the same. I do not buy this logic that you speak to them, no you are allowed to write so stick to writing.

Or, get rid of the landline then judges can't say anything, can they?

[jen_br]

Re: Telephone Harassment, Carey, Kotecha, Harrison et al

LOL Just had a call from APEX for Mr. Br...

"Hello is Mr. Br there?"
"Nope can I take a message"
"Yes its Apex, ref..... call you call us back-- but before 5pm today or tomorrow from 9-5 but not between 12-1 we break for lunch"
"Really? You get a whole hour for lunch everyone at the same time? Hrm well hes( Mr. BR) only available from 12-1 oh well"

[Silverback]

Re: Telephone Harassment, Carey, Kotecha, Harrison et al

Hello Paul!

Provided that a DCA/bank is told that the Borrower/Consumer requires all communication to be in writing, then there is absolutely no need for any Telephone contact with a bank or DCA in the event that an Account is in dispute, or the Borrower/Consumer is in financial or other distress.

Nobody should ever be under any obligation to speak to anyone on the Telephone to whom they do not wish to converse.

If written communication has been established, then that is quite sufficient. I would defend that view in any Court.

The banks and DCAs can, of course, make initial and proportionate attempts to make contact via Telephone, but once they receive a written response informing them that the Borrower/Consumer requires that all contact to be made in writing, then not one call more should thereafter be attempted. To do so would be wholly unreasonable if a written channel of communication has been established.

HHJ Chambers QC in the Harrison v Link case did actually overlook the fact that Harrison had indeed set out his complaints in writing from the very outset, both to MBNA and also to the DCA.

The Judge does confirm there was no actual issue on that point when he goes on to say:

I sense that the Claimant wished to engage upon his own terms albeit in no negative fashion.

My view is that telephone contact when dealing with disputes and distress issues, is not acceptable at any stage, once the Borrower/Consumer has written to require that all communication must be in writing.

That is the key, get a letter off to them from the outset, and repeat the request if they keep calling in disregard of that entirely reasonable request.

This does not mean that no Telephone contact should ever be made, some have no issues with this, and provided they take great care when engaging with banks or DCAs on the Telephone, and provided they are happy and comfortable with using the Telephone to discuss disputes or distress issues, then fine. The main danger is the lack of any evidence, such that I would advise that it would be sensible to try and record any such calls.

But a recording is no real use in Court, so it has to be Transcribed, i.e. into writing. That begs the question, why not just keep it in writing anyway? Letters can be written in your own good time, on your own terms, and cost pence to send, or at most a couple of pounds if Special Delivery is used.

If anyone is going to use the Telephone, then call only when you are ready and prepared, and ensure you have at least made a note of the time and date, and get the name and contact details of who you speak to. Preferably record the conversation. Then follow it up with a letter to confirm the key points such that a written summary then exists.

Likewise, there is nothing wrong with using the Telephone for routine banking when not in any dispute. But, when in dispute or when in financial or other distress, that changes things.

Inbound calls are another matter. The banks and DCAs then have the upper hand, because they are the ones who are prepared in advance, and the ones who are ready before they make the call. The Consumer/Borrower is then at an immediate disadvantage, unless they happen to be a very robust and astute character, which few people are when faced with financial problems or other distress.

For those who either do not wish to use the Telephone for entirely valid reasons (perhaps because their business or administrative policy is to require an Audit Trail of communication), or who are vulnerable to undue persuasion via Telephone so prefer written communication instead, then there can be no valid reason why they should be expected to correspond via Telephone if they do not wish to do so, i.e. provided they can offer a valid and effective alternative via letter.

Finally, the use of Hidden Number Calls by banks and DCAs is wholly unacceptable under any circumstances. There is absolutely zero excuse for such conduct. The UK Telephone Network has been Digital for many years, and it is entirely within the affordable capabilities of even small organisations to display a number. There are no technical reasons why the number displayed cannot be that of a central HQ, or a regional Office number, or a local Office number, or even a single DDI number for a specific employee.

Hidden numbers are menacing.

Their use should be banned in the case of Lenders, DCAs and any major organisation or group above a certain threshold size.

I know that after the events in that case, Harrison later missed two urgent Hidden Number Calls from the Cardiac Surgeons at his local Hospital wanting to request permission to fit an urgent Pacemaker for his Mother. She died 18 days later, partly because that vital opportunity had been missed.

Had the banks and DCAs not harassed the Harrison Family with wholly unnecessary Hidden Number Calls, then those two calls would have been picked up, and a life could well have been saved.

Silverback

[Paul.]

Re: Telephone Harassment, Carey, Kotecha, Harrison et al

I understand that, but the telephone harrassment provides such an effective weapon in your arsenal and allows you then to consider further damages claims under protection from harrassment laws if you get a judge to rule the calls were excessive

In an ideal world we wouldnt need to have this course of action, but the worlds not ideal

[Silverback]

Re: Telephone Harassment, Carey, Kotecha, Harrison et al

Hello Paul!

I understand that, but the telephone harrassment provides such an effective weapon in your arsenal and allows you then to consider further damages claims under protection from harrassment laws if you get a judge to rule the calls were excessive

I fully agree.

I think where we differ, is that I do not agree that there is any obligation to speak to a bank or DCA, provided written communication has been established.

That's the key.

If no contact is made, and the calls are ignored, then the bank/DCA recovers some of the moral high ground.

But that can be taken away from them completely if the Borrower/Consumer draws a line in the sand from the outset via letter, and it is then the bank/DCA who steps over that line.

Thereafter, any further calls are all Harassment.

The Consumer/Borrower regains the moral high ground, and keeps it for as long as they maintain written contact.

I think it is very important to stress that there is no obligation to speak to banks/DCAs when a dispute exists or the Borrower/Consumer is in distress, provided that written communication has been established.

Taking no action at all, is the worst thing to do, and plays into their grasping hands.

Silverback

[Paul.]

Re: Telephone Harassment, Carey, Kotecha, Harrison et al

Agreed

BUT, my worry is that people will fire off templates making themselves look like the filthy debtor, with words like I DO NOT ACKNOWLEDGE ANY DEBT TO YOU

This is the most damaging thig someone can do, as we know a breach of s78 does not erase the debt it suspends enforcement only.


If you are activley engaging with them in proper written correspondence then sure ask them not to call but i dont see anything wrong with politely (at the first point of contact) setting out your position and following that up in writing, then if they call and do not address your letters you are right to say please reply to my letter first, i cannot discuss anything until you reply .

[Never-In-Doubt]

Re: Telephone Harassment, Carey, Kotecha, Harrison et al

Paul

As part of the process to move templates from the forum to the site all templates are being rewritten using latest case law (ie Harrison v link etc) so I'll ensure to remove the "I do not acknowledge any debt" element.

Let's work this to OUR advantage using such judgements as the Harrison victory. My point being; let's not change the way we work but instead change the wording on the letters we use.... Problem solved.

[Silverback]

Re: Telephone Harassment, Carey, Kotecha, Harrison et al

Hello Paul!

BUT, my worry is that people will fire off templates making themselves look like the filthy debtor, with words like I DO NOT ACKNOWLEDGE ANY DEBT TO YOU

This is the most damaging thing someone can do, as we know a breach of s78 does not erase the debt it suspends enforcement only.

Agreed, in which case as Niddy says, we can try to address any such risks by drafting more appropriate Templates that avoid any such Bear Traps.

i dont see anything wrong with politely (at the first point of contact) setting out your position and following that up in writing, then if they call and do not address your letters you are right to say please reply to my letter first, i cannot discuss anything until you reply.

The problem there is the Borrower/Consumer is already at the mercy of what are invariably aggressive telephone agents. The banks and DCAs have not sorted that problem out yet, so the Consumer by then will be on the phone, and may well have been asked to run through the usual Security Questions.

We know why they have to ask, for Data Protection issues, but we also know that the banks and DCAs use that formality to gain the upper hand. They employ mind games to use the Question/Answer phase to exert their Authority.

The Consumer is already on a slippery slope before the bank/DCA even gets to the point of the call.

I have no doubt that you, or I can hold our own with any such nonsense, but I know that, say, my Wife could not.

The problem remains that the type of staff used to make these calls, are invariably hostile and trained to elicit what the bank/DCA wants, be that payment, or some admission or agreement that they can use to their advantage.

Letters have the very major advantage that they give people time to think, and time to engage the issues on their own terms.

I agree that it is possible to draft letters that are not appropriate, but it's far more likely that people when faced with an unexpected call from a trained monkey acting for a bank/DCA, is in even greater danger of saying something they will later regret.

The conversation will no doubt be recorded, and the bank/DCA will invariably be able to produce a Transcript of anything useful. In marked contrast to their seeming inability to ever find recordings of conversations that don't suit them.

Silverback

[pompeyfaith]

Re: Telephone Harassment, Carey, Kotecha, Harrison et al

Niddy, Paul, Silverback,

One point is good and that is this discussion, there by enabling members to take all posts into consideration and I commend you all for that.

Only by taking all posts into consideration can a workable plan be put in place, thank you all.


Regards

[LooLoo]

Re: Telephone Harassment, Carey, Kotecha, Harrison et al

Niddy, Paul, Silverback,

One point is good and that is this discussion, there by enabling members to take all posts into consideration and I commend you all for that.

Only by taking all posts into consideration can a workable plan be put in place, thank you all.


Regards

I'll second that! I'm reading this with great interest

[Paul.]

Re: Telephone Harassment, Carey, Kotecha, Harrison et al

Quite agree Pompey, and this discussion hasnt happened to my knowledge on any other forum. The others seem to follow the old ways which will lead the consumer into a corner with very little prospect of getting out of it.