Husband being taken to court for a debt that is not his

Alipeeps

This is a bit long, sorry...

Over the past year or so hubby has had a few letters from a DCA chasing him for a debt relating to a TalkTalk account. He has never had an account with TalkTalk. He 100% knows the debt is not his. We never got around to replying to the DCA's various demands - and tbh kinda felt like why should we have to when it's not even his debt? - but they have now proceeded to court action.

We have submitted hubby's defence making it clear that the debt is not his, that he never had an account with the company (and TalkTalk have confirmed with him over the phone that his details do not match the details they have for the account) and that, as far as we can tell, the DCA (Lowell's) have just sent out demands to anyone with the same name as the debtor and are only pursuing hubby because he didn't reply to deny being the debtor.

I am pretty darn certain they cannot possibly win in court - how can they? The debt is not his so they absolutely cannot show that it is his, and not replying to demands for money from a DCA is not an offence or an admission of liability? - but he is super stressing about it because he works in finance and he absolutely CANNOT have a CCJ on his file or he will lose his job. It's stressing him so much he is considering paying it just to make it go away but I am loathe, on principal, to pay a debt that is nothing to do with us just because an unscrupulous DCA is pressuring and harassing us for payment (to be clear, since receiving notice of court action we have written to the DCA TWICE stating clearly that it is not his debt and that under the relevant code of conduct if a debt is disputed they should cease collection actions while the dispute is resolved and they are STILL continuing with court action and offers to "mediate" or pay a reduced settlement etc).

We have since received a copy of a letter sent from the judge to the DCA decreeing that they must, by early April, send to the judge and to us a copy of the signed account agreement and a breakdown of how the debt amount has been calculated. This a) leads me to believe the judge is taking our defence into account and is not willing to proceed to a court date without seeing some evidence that the debt actually belongs to hubby, and b) is good news because the DCA has admitted to us in writing that they do not have and cannot obtain the original agreement (but still claim they will use "other evidence" to prove their case in court).

So we are basically waiting to see if or what they reply - I am hoping either they will drop the case or the court will throw the case out if they cannot provide the agreement.

So my questions for you lovely people are pretty much thus:

Do you think there's any possibility that they could win and force us to pay a debt that is not ours? I am pretty confident that shouldn't be possible but hubby is worrying himself sick over the possibility.

Most importantly... IF by some miracle the case goes to court and they actually win and hubby is ordered to pay the money... does that count as a CCJ? Or does it only become a CCJ if the court orders you to pay the money and you fail to pay/keep up with agreed payments?

Thanks in advance for any advice...

Willing2Learn

Hi Alipeeps,

If it were me, I would send the DCA a letter by Royal Mail complaining, quoting the FCA rules 2018. I would use the letter template linked below:

https://forums.moneysavingexpert.com/discussion/comment/57703407#Comment_57703407

Alipeeps

Willing2Learn wrote: »

Hi Alipeeps,

If it were me, I would send the DCA a letter by Royal Mail complaining, quoting the FCA rules 2018. I would use the letter template linked below:

Thanks. I've already sent them a total of two letters quoting those exact rules (the first being a "prove it" letter after receiving the court papers and the second being the covering letter sent with the copy of our submitted defence) and telling them if they persist in pursuing this disputed debt I will complain to the ombudsman, FCA etc etc. Their only response has been a letter giving some vague details about the debt (when it was taken out and when the last payment was made) and admitting that they don't have and can't obtain the original account agreement but insisting they will "use other evidence to prove their case in court" and again offering to accept a reduced payment to clear the debt etc.

WhenIam64

with the copy of our submitted defence

This is the quiet stage in the court process. You should get another letter from the court called a Directions Questionnaire which is a timetabling document asking when you are not available (e.g. pre-booked holidays etc). If it does not arrive chase it up as you need to fill it out.

You'll then get a hearing date some time in the next few months.

Use this quiet period to get all the information you can from them and if they try to withhold them, then go for the FCA complaint to see if that gets the information.

If this does end up in court, it is the person with the best paperwork that usually wins which is why they try to hide it from you.

Suseka97

Alipeeps wrote: »

This is a bit long, sorry...
We have submitted hubby's defence making it clear that the debt is not his, that he never had an account with the company (and TalkTalk have confirmed with him over the phone that his details do not match the details they have for the account) and that, as far as we can tell, the DCA (Lowell's) have just sent out demands to anyone with the same name as the debtor and are only pursuing hubby because he didn't reply to deny being the debtor.
Thanks in advance for any advice...

Just to add to what has already been advised... you mention here that Talk Talk have confirmed over the phone that his details do not match the details they hold for the account... so, have you asked them to confirm that in writing? You could use that as defence and I'd definitely already be escalating this to the FCA and/or FOS.

Lowell's are well known for purchasing debts in bulk and then just carry out phishing exercises by sending letters to people who may live in the local area of the same name. Interesting that you've had nothing back in relation to the 'Prove-it' letter and the fact they are not disclosing whatever it is they claim to hold - I would say suggests they are on dodgy ground. But best to do as has been advised and gather your paperwork in defence.

fatbelly

The FOS won't rule on a case that has been through the courts.

The other thing you should know is that if you get a court judgement, and pay it within a month, it does not get recorded.

D_M_E

Good luck getting anything in writing from TalkTalk - the only way to get anything off them through nthe post is to hit them with a Subject Access Request and tell them to reply by post, not email.

Will help your case though when they cannot send anything to prove what Lowell are saying.

Also try the same thing with Lowell.

Alipeeps

WhenIam64 wrote: »

This is the quiet stage in the court process. You should get another letter from the court called a Directions Questionnaire which is a timetabling document asking when you are not available (e.g. pre-booked holidays etc). If it does not arrive chase it up as you need to fill it out.

You'll then get a hearing date some time in the next few months.

Use this quiet period to get all the information you can from them and if they try to withhold them, then go for the FCA complaint to see if that gets the information.

If this does end up in court, it is the person with the best paperwork that usually wins which is why they try to hide it from you.

Thank you. We've already submitted the Directions Questionnaire. As I explained above, rather than proceeding to scheduling a hearing date, the judge who has been assigned is requiring Lowell's to submit some information first (basically requiring them to submit documentation to prove/show ownership of the debt).

Suseka97 wrote: »

Just to add to what has already been advised... you mention here that Talk Talk have confirmed over the phone that his details do not match the details they hold for the account... so, have you asked them to confirm that in writing? You could use that as defence and I'd definitely already be escalating this to the FCA and/or FOS.

Lowell's are well known for purchasing debts in bulk and then just carry out phishing exercises by sending letters to people who may live in the local area of the same name. Interesting that you've had nothing back in relation to the 'Prove-it' letter and the fact they are not disclosing whatever it is they claim to hold - I would say suggests they are on dodgy ground. But best to do as has been advised and gather your paperwork in defence.

We are going to ask TalkTalk to put that in writing. I agree that Lowell's were most likely sending out phishing letters to everyone with the same name as the debtor and have chosen to pursue hubby because he didn't reply to deny the debt (and I stated as much in his defence that we submitted to the court - literally the ONLY basis they have for taking this court action is that he has the same name as the person they are looking for). I think they are on very dodgy ground indeed (and we KNOW they can't prove he owns the debt as we know he doesn't!) so am very much hoping the case will be dropped or thrown out.

fatbelly wrote: »

The other thing you should know is that if you get a court judgement, and pay it within a month, it does not get recorded.

Thank you so much for this info, that is a huge relief because that is what is worrying him. He is more than willing to fight this but he can't help worrying that, if by some miracle, they were to win, a CCJ would mean him losing his job.

Alipeeps

D_M_E wrote: »

Good luck getting anything in writing from TalkTalk - the only way to get anything off them through nthe post is to hit them with a Subject Access Request and tell them to reply by post, not email.

Will help your case though when they cannot send anything to prove what Lowell are saying.

Also try the same thing with Lowell.

Thanks for that advice, I will try doing that. When hubby spoke to them on the phone they obviously couldn't tell him much because of data protection (it being our position that they debt is not his, they can't tell him anything about the account) but he basically gave them his details (name, DOB, address etc) and got them to admit that a) those details do not match those on file for the account in question and b) there has never been an account with them under those details.

Lowells have already been instructed by the judge to submit to him (and us) a copy of the original signed account agreement (which they have told us in writing they cannot obtain). IF the judge doesn't throw out the case when Lowell's cannot provide this documentation, and it does proceed to a court date, my understanding is that Lowell's have to submit to the court, and us, any and all evidence they intend to present/use BEFORE the court date?

GDB2222

Yes, these court proceedings are meant to be done with cards open on the table. So, you have to see all the evidence.

You can pay at any time, and that puts an end to the matter, so hubby is wrong to panic.

It's possible that TalkTalk have taken over a company that hubby did have a contract with, but that should become apparent well before the hearing date, and you can pay then. If not, the claimants do have to prove their case, and that's going to be difficult if they have the wrong man.

sourcrates

There won’t be a signed agreement from talk talk, it’s all “use of service is acceptance of contract” nowadays.

You only sign an agreement when you take out some form of credit.