Assorted letters to creditors

fermi
fermi Posts: 40,546
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edited 11 July 2014 at 7:38AM in Bankruptcy & living with it
Creditor/debt collector chasing a bankruptcy debt.
NOTICE: Pursuit of a debt included in a bankruptcy. Do not ignore this letter. You must cease collection activity IMMEDIATELY.

Dear Sir/Madam

Account No: 4563210025897412

You have contacted us regarding the account with the above reference number, which you claim is owed by ourselves.

I would point out that the account was included in my bankruptcy which commenced on <date>.

Consequently, the debt in question is no longer my legal responsibility.

ALL contacts and claims regarding the debt MUST be addressed to the Official Receiver's Office dealing with the case.

My case was XXX of 200X, at <somewhere> County Court, and the address of the Official Receiver is below.

<Address of the OR.
>

A copy of the bankruptcy order is enclosed for your convenience.

Please note that the Official Receiver has requested that all future contact from your company regarding these accounts is reported and forwarded to themselves, and that continued contact with myself may result in Official Receiver taking enforcement actions against your organisation.

I am familiar with the Consumer Credit sourcebook of the Financial Conduct Authority (FCA) which states the following rules:

"A firm should not take steps to enforce a debt if it is aware that the customer is subject to a bankruptcy order (or in Scotland where sequestration is awarded in relation to the customer), a debt relief order or an individual voluntary arrangement (or, in Scotland, a protected trust deed or a Debt Arrangement Scheme)." CONC 7.3.16

"A firm must not ignore or disregard a customer's claim that a debt has been settled or is disputed and must not continue to make demands for payment without providing clear justification and/or evidence as to why the customer's claim is not valid." 7.5.3

"A firm must suspend any steps it takes or its agent takes in the recovery of a debt from a customer where the customer disputes the debt on valid grounds or what may be valid grounds." 7.14.1

"Where a customer disputes a debt on valid grounds or what may be valid grounds, the firm must investigate the dispute and provide details of the debt to the customer in a timely manner." 7.14.3



In not ceasing collection activity whilst investigating a reasonably queried or disputed debt you are using deceptive/and or unfair methods.

Furthermore, ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment amounts to physical/psychological harassment.

A formal complaint will be submitted to the relevant authorities, including the FCA and trading standards.

You must also treat this as a formal complaint under the relevant Ombudsman scheme, so I require a written copy of your complaints procedure and a final response from yourselves.

I will not hesitate to take this matter to the Ombudsman if you do not desist.

We await your written confirmation that this matter is now closed.

We look forward to your reply.

Yours faithfully





Mr A N Other
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Comments

  • fermi
    fermi Posts: 40,546
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    edited 4 April 2014 at 4:05PM
    Creditor claiming a debt is not covered because it was not on the original statement of affairs.
    Re: Your recent letter/phone call dated xx/xx/20xx.

    I note that you have claimed that the above debt is not covered by the bankruptcy order dated xx/xx/20xx, no ### in the ***** County Court.

    Having consulted with the Official Receivers, I can confirm that in relation to the aforementioned debt:

    - This is a "bankruptcy debt" under s382(1) of the Insolvency Act 1986, and so is covered by that bankruptcy order.
    - As a basic principle of law, all provable debts that exist at the time of the bankruptcy are automatically covered by, and are part of, the bankruptcy. Under s283(1) Insolvency Act 1986, a "bankruptcy debt" is: "any debt or liability to which he is subject at the commencement of the bankruptcy,"
    - This is not contingent on the debt being listed on the original statement of affairs or the Official Receiver being aware of the debt at the time.
    - As such, my liability for this debt was discharged with the bankruptcy on xx/xx/20xx.

    Furthermore.

    - As a professional debt collection company it is not credible that you are ignorant of the above legal position.
    - Therefore it is clear that you have deliberately attempted to mislead myself regarding the correct legal position and status of this debt.
    - This is a clear breach of FCA Rules and the Consumer Protection from Unfair Trading Regulations 2008.
    - As an attempt to obtain monies by false representation, it may also constitute an offence under the Fraud Act 2006.
    - As such, I will be reporting you to the Official Receiver, The FCA, Trading Standards, and may consider informing the Police if you persist.

    Also please note that any legal action you may attempt will be defended in full.

    You may also treat this as a formal complaint. As such, I will take the matter to the financial Ombudsman in 8 weeks unless I have conformation that this matter is closed.

    I hope I have made myself understood.

    Yours...
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  • fermi
    fermi Posts: 40,546
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    edited 4 April 2014 at 4:05PM
    Creditor chasing mortgage shortfall covered by the bankruptcy.
    NOTICE: Pursuit of a debt covered by a bankruptcy order. Do not ignore this letter. You must cease collection activity IMMEDIATELY.

    Dear Sir/Madam

    Account No: 4563210025897412

    You have contacted us regarding the account with the above reference number, which you claim is owed by ourselves.

    I would point out that this is a contingent debt/liability that is covered by the bankruptcy order made against me on <date>.

    Consequently, the debt in question is no longer my legal responsibility.

    ALL contacts and claims regarding the debt/liability MUST be addressed to the Official Receiver's Office who dealt with the case.

    My case was XXX of 200X, at <somewhere> County Court, and the address of the Official Receiver is below.

    <Address of the OR.
    >

    A copy of the bankruptcy order is enclosed for your convenience.

    To clarify the position here in case you are unaware:

    This is a bankruptcy debt as defined under Section 382 of the Insolvency Act 1986.
    “Bankruptcy debt”, in relation to a bankrupt, means (subject to the next subsection) any of the following—

    (a) any debt or liability to which he is subject at the commencement of the bankruptcy,

    (b) any debt or liability to which he may become subject after the commencement of the bankruptcy (including after his discharge from bankruptcy) by reason of any obligation incurred before the commencement of the bankruptcy,
    Furthermore guidance from the Official Receiver states that:
    A debt which is secured by a mortgage or a charge on a property is still a provable bankruptcy debt. The mortgage loan company is "a secured creditor" which means they have rights over an asset, the house, and can require the asset to be sold to pay their debt. These rights are not affected by the bankruptcy. On the making of a bankruptcy order the mortgage loan company could make a claim in the proceedings but, unless it wished to give up the security, could only claim for any (estimated) shortfall.

    If you continue to live in the property it is likely that you will continue to make payments to the mortgage loan company to avoid the property being re-possessed. When the property is eventually sold any shortfall to the mortgage loan company is still a provable debt in the bankruptcy, even if you have been discharged, as you are released from the debt on discharge.
    Consequently the bankruptcy order discharged my obligation or liability regarding any future shortfall.

    In light of the above I make the following points:

    - I am not liable for the debt you claim.
    - Any attempt by yourselves to claim otherwise will be reported to the Official Receiver, and to other regulatory bodies such as the FCA, Trading Standards etc, as unfair and deceptive practices.
    - Any attempted legal action by yourselves or your representatives will be defended in full, and the court's attention drawn to your foreknowledge that you were not entitled to make such a claim. If appropriate I will also counter-claim for costs and harassment.
    - I expect to receive confirmation in the next 14 days that this matter is now closed.
    - Any further correspondence from yourselves other than to confirm that this matter is now closed will be treated as harassment, logged, and reported to the authorities.
    - Not withstanding the above, this is now a formal complaint and I require you to provide a written copy of your complaints procedure, and a response that I will be taking to the Financial Ombudsman should it fail to be satisfactory.

    I hope I have made my position clear.

    I look forward to response confirming the closure of this matter.
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  • fermi
    fermi Posts: 40,546
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    edited 17 September 2013 at 9:35AM
    Creditor requiring proof the debt was on the SOA before they will correct credit files.
    Thank you for your letter dated xx/xx/20xx.

    I note that you have requested proof that the debt owed to xxxxxx under account number xxxxxx was included in my bankruptcy.

    Having consulted with the Office of the Information Commissioner and the Official Receivers, I can confirm that in relation to the aforementioned debt:

    - This is a "bankruptcy debt" under s382(1) of the Insolvency Act 1986, and so included under the bankruptcy order dated xx/xx/20xx in xxxxx county court.

    - As a basic principle of law, all provable debts that exist at the time of the bankruptcy are automatically covered by, and are part of, the bankruptcy.

    - I am not obliged to provide proof that the above debt was covered by the proceedings, as it was automatically a debt in the bankruptcy as a matter of course.

    - Previous guidance from the ICO that suggested that files should only be corrected where a debt is listed on the bankruptcy statement of affairs were issued in error, have now been withdrawn/corrected, so this no longer applies.

    - As a result of this you are obliged to update the credit reference files as per my previous request, without further delay.

    - Any further attempt to delay complying with your obligations will not be tolerated and will form part of a formal complaint to the ICO, the FOS and other regulators.

    I hope I have made myself understood.

    Yours...
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  • fermi
    fermi Posts: 40,546
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    Possible letter for backdating of mortgage default.
    Your Address
    Goes Here


    Data Control Officer
    This Creditor
    Data Controller Address


    Dear Sirs

    Re: Account Number xxxxxxxxxxx

    After consultation with both the Information Commissioner and the Credit Reference Agencies, I am writing directly to you to request that you formally update my credit files in accordance with the Data Protection Act.

    I was declared bankrupt on <Date of your bankruptcy>and subsequently discharged on <Date of Discharge>, and <name of creditor> was included within the Bankruptcy. For your convenience I have attached both my bankruptcy Order and Discharge Notification.

    Currently the information that you have recorded against my name with the Credit Reference Agencies is factually incorrect, and despite several written requests to your customer services , as yet your company has failed to correct the entries as required.

    • It is required that you default the account

    • It is required that the default entry must be no later than <Date if your bankruptcy>, in accordance with the Data Protection Act.

    • It is also required that you mark the account in some way as to indicate that it is settled or satisfied, in accordance with the Data Protection Act.

    As you are aware, the ICO Guidance to lenders on the issuing and dating of defaults updated in 2007 applied at the time of my bankruptcy and of the sale of the property, and therefore you are obliged to adhere to that guidance.

    For clarity in respect of long term secured loans or mortgages this requires in paragraph 14 that when a bankruptcy is in place and the property is repossessed a default must be placed and any default should be recorded according to paragraphs 47-48, which in turn requires that the default is backdated to the date of the bankruptcy, even in the case where the mortgage was paid or the sale did not occur for some period after the bankruptcy.

    I have copied the relevant Guidance provided by the Information Commissioner as an attachment to this request.

    The Information Commissioner has indicated that I should allow you 28 calendar days from the date you receive this letter to comply, during this time you are requested either to update the Credit Reference Files correctly (of all three Credit Reference Agencies) or notify me in writing the reasons that you refuse to.

    After the 28 days have elapsed the Information Commissioner has requested that I inform them if your company fails to update the records so that they may take any necessary enforcement action against your company.

    Please note that if this account falls within the remit of the FOS, I will also be submitting a separate complaint to them regarding this matter if the Credit Reference Files are not correctly updated.

    I have copied the relevant information provided by the Information Commissioner as an attachment to this request.

    Yours faithfully



    Fred Bloggs

    Enc:

    Bankruptcy Order
    Discharge Notification
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  • fermi
    fermi Posts: 40,546
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    Spare post 2
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  • IF
    IF Posts: 34,349
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    Thank you Fermi, these letters will be so helpful highfive.gif
    "If wishes were horses, then beggars would ride"
  • fermi
    fermi Posts: 40,546
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    Probably a few more floating around somewhere that might be of use. I'll have a hunt.
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  • Great templates fermi! Just wondering if there was one for a creditor who hasn't registered a default during the term of the bankruptcy and has instead marked the account with 12 months of sustained arrears? I have raised the issue with the company concerned but as yet have had no response.
  • fermi
    fermi Posts: 40,546
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    What sort of account? Do you mean a secured loan or something like that? The rules can be a bit different with those. Or just a normal unsecured debt?
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  • fermi
    fermi Posts: 40,546
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    If unsecured then any letter would basically set out the points I made in this post.

    http://forums.moneysavingexpert.com/showpost.php?p=63025244&postcount=4

    Can put something more wordy together if you like, but that is the crux of it.
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