Default query

Nicki1968

Hi,

I have posted in the past for advice on behalf of my sister who is finally on the road to sorting her finances out.

The situation is this, when my sister checked her credit file in Sept she realised one of the debts she has been paying had a different date of birth to hers. The debt is currently with Robinson Way and originates from JD Williams, the debt was £2400 and my sister had been paying token amounts each month it now stands at £1919.

The default was put on her account 3/4/06 she questioned the account as although she had several accounts with JD Williams the info regarding the dob didn't add up, also they said the account was opened in 1989.

My sister asked them to send her a copy of the agreement and also to send her a statement of the account. In the middle of
November she hadn't heard back from RW so she rang them, they advised her they hadn't heard back from JDW and they would chase it up and they would contact her!

Middle of January she received a letter from JDW saying they could not provide the statement she asked for and that she needed to contact them to arrange to pay the outstanding amount. She chose to ignore them as they hadn't provided her with the information she had requested, then the phone calls and text's started constantly calling her and leaving messages that she contact them urgently.

Yesterday she decided enough of the phone calls and that she needed to see why they couldn't provide the info. They said JDW cannot provide the CCA as it is longer than 6 years and that they don't keep account information beyond that, she then said why should she continue paying for a debt she didn't believe was actually hers if they couldn't

1. provide proof of cca
2. provide a statement of the account

From her point of view she doesn't really know what to do or where she stands, i pointed out that the default will drop off her credit report in April anyway, but i must admit it has occured to me that they still have time to issue a ccj for the debt?

lvm

They do have time to go to court to apply for a CCJ - a whole 6 years from the last date she made a payment.

I take it she has now stopped making payments? If not, she should stop now.

Send the following to whoever owns the debt:

Dear Sir/Madam

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

I/we would point out that I/we have no knowledge of any such debt being owed to (insert company name).

I am/we are familiar with the Office of Fair Trading debt collection Guidance which states that it unfair to send demands for payment to an individual when it is uncertain that they are the debtor in question.

I/we would also point out that the OFT say under the Guidance that it is unfair to pursue third parties for payment when they are not liable. 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.

I/we would ask that no further contact be made concerning the above account unless you can provide evidence as to my/our liability for the debt in question.

I/we await your written confirmation that this matter is now closed. Otherwise I will have no option but to make a complaint to the trading standards department and consider informing the OFT of your actions.

I/we look forward to your reply.

Yours faithfully

I would amend it slightly to explain that you have made payments however believe these were made in error to an account not belonging to you and would like the money refunded. You were only making these payments because of threatening and harrassing letters etc.

Other thing to think about is - have the other JDW accounts been paid? Could they have just (incorrectly) merged them all together?

I would get another credit report (free trial from another CRA) and see what info they have on there. And quickly because the entry will possibly disappear in 2 months and you want to have a saved copy for your records.

Good luck!

Nic1968

lvm wrote: »

They do have time to go to court to apply for a CCJ - a whole 6 years from the last date she made a payment.

I take it she has now stopped making payments? If not, she should stop now.

Send the following to whoever owns the debt:

Dear Sir/Madam

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

I/we would point out that I/we have no knowledge of any such debt being owed to (insert company name).

I am/we are familiar with the Office of Fair Trading debt collection Guidance which states that it unfair to send demands for payment to an individual when it is uncertain that they are the debtor in question.

I/we would also point out that the OFT say under the Guidance that it is unfair to pursue third parties for payment when they are not liable. 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.

I/we would ask that no further contact be made concerning the above account unless you can provide evidence as to my/our liability for the debt in question.

I/we await your written confirmation that this matter is now closed. Otherwise I will have no option but to make a complaint to the trading standards department and consider informing the OFT of your actions.

I/we look forward to your reply.

Yours faithfully

I would amend it slightly to explain that you have made payments however believe these were made in error to an account not belonging to you and would like the money refunded. You were only making these payments because of threatening and harrassing letters etc.

Other thing to think about is - have the other JDW accounts been paid? Could they have just (incorrectly) merged them all together?

I would get another credit report (free trial from another CRA) and see what info they have on there. And quickly because the entry will possibly disappear in 2 months and you want to have a saved copy for your records.

Good luck!

Thank you so much for your advice, the credit file definitely has a different date of birth for the account they are trying to chase. I am just concerned they will issue a ccj before the default date drops off.

Next step is to do as you have said and send the letter amended accordingly and see what they come back with, the guy she spoke to at RW asked her to fax a copy of the entry from the credit report showing the incorrect date of birth.

She stopped making payments in November. If this isn't her account i still don't see how she is going to prove this if they cannot give her the information, it's surely going to just go round in a loop, ie they'll keep chasing her and she'll keep asking for proof

Nic1968

Am i right in saying that even when the default drops off they can still issue a ccj?

SeduLOUs

Nic1968 wrote: »

She stopped making payments in November. If this isn't her account i still don't see how she is going to prove this if they cannot give her the information, it's surely going to just go round in a loop, ie they'll keep chasing her and she'll keep asking for proof

Don't worry about it. It isn't up to her to prove she doesn't owe it, it's up to them to prove that she does.

I don't think they'll get very far in court without pulling out a signed credit agreement, especially when account details i.e. DOB don't stack up. Just deny all knowledge of it. On that note, never sign any letters you do happen to send to them in case your signature somehow gets magically lifted....

fermi

Nic1968 wrote: »

Am i right in saying that even when the default drops off they can still issue a ccj?

Nicki1968 wrote: »

My sister asked them to send her a copy of the agreement and also to send her a statement of the account.

If she did that formally (£1 fee under the CCA) then a court should not enforce any debt while they haven't provided the agreement and statement of account.

They could try court action, but as said if challenged then they would likely trip up on proof of the debt and non compliance with the CCA request. As such, while they cannot provide proof, it is unlikely they will try.

It has been mentioned, but you really need to make clear in any letter that you send that she completely disputes the debt in it's entirety and requires proof of liability.

There is a big difference between that case and just someone relying on a technical point fof the debt being unenforceable until a copy agreement can be produced.

The 1st is an absolute dispute over liability for the debt, while the 2nd doesn’t dispute the debt, but just challenges whether it is enforceable in court.

It's important that you are clear which you are doing, as if you are not the debt collector will wrongly label the complaint and assume she actually owes it but is just looking for a way out.

Nicki1968

fermi wrote: »

If she did that formally (£1 fee under the CCA) then a court should not enforce any debt while they haven't provided the agreement and statement of account.

They could try court action, but as said if challenged then they would likely trip up on proof of the debt and non compliance with the CCA request. As such, while they cannot provide proof, it is unlikely they will try.

It has been mentioned, but you really need to make clear in any letter that you send that she completely disputes the debt in it's entirety and requires proof of liability.

There is a big difference between that case and just someone relying on a technical point fof the debt being unenforceable until a copy agreement can be produced.

The 1st is an absolute dispute over liability for the debt, while the 2nd doesn’t dispute the debt, but just challenges whether it is enforceable in court.

It's important that you are clear which you are doing, as if you are not the debt collector will wrongly label the complaint and assume she actually owes it but is just looking for a way out.

Thank you Fermi and Sedulous, I will try and put a letter together disputing the liability of the debt and hopefully i will use the correct wording, my sister is panicking as i mentioned in previous post she has paid just over £500 of this debt because they told her she owed it....it really is very easy for dca to write to someone way after the event to say they owe something, this is why my sister didn't question it, they also said she has been paying it therefore she has acknowledged the debt.

They have asked her to send a copy of her credit report showing the debt so they can see the date of birth, as they claim they were not given a dob when the debt was passed to them!

If this debt cannot be proven to be hers i.e they cannot provide the CCA can she request the money back that she has paid?

fermi

Payign a debt because a debt collector bullies you or falsely says it it yours does NOT make you liable for it. That is a bald lie from them.

If it turns out to be proved not to be hers, then yes she could in theory reclaim monies paid.

I would not provide them with copies of anything. That will only give them extra info should they decide to "cook" some paperwork.

In fact, they are the ones who should be providing paperwork to prove this.

Gordon_Hose

She can request it back yes. Whether she gets it back is another story. It might be her starting court proceedings on them

Nicki1968

I totally agree with you regarding providing the copy of the credit report, they are bullying her again then with that one, they said they will hold the account for the next 14 days while she provides it :mad:

This is has made me so furious how they can bully people, it is fair enough if you owe the debt, and as in the other debts my sister is more than willing to pay anything she truly owes.

They are scum bags who will obviously say and do what they please in order for the debt to be paid, this is how they get people though, as in my sister's case she hasn't really got a clue, hence my interference to help her sort it all out.

I just need to find the words to put in a letter, any suggestions would be gratefully received