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Alex J.
Alex J., Solicitor
Category: Law
Satisfied Customers: 3664
Experience:  Solicitors 2 years plus PQE
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Madam, I have received a letter from a DBA debt of 18000GBP.

Customer Question

Dear Sir/madam,
I have received a letter from a DBA for a debt of 18000GBP. The debt is held by a DBA is German which was assigned to it by deutsche bank. In the sheer panic of receiving this letter i phoned the DBA and discussed a payment plan.
Since then i have sort advice from various debt advice lines and have been told any acknowledgement of this dent has to be made in a written statement signed by myself. is this correct.
I sent the DBA a letter asking for proof of this debt and stating i do not acknowledge this debt. they have since written back and said that the phone call is an admission that this debt belongs to me and if i dont pay immediately they will take legal action.
The UK DBA is not registered with the FCA and i believe that they cant collect on regulated credit agreements which i believe a loan is. I last made a payment on this debt on 5th May 2010 meaning it is just over 6 years ago.
What are my options and what should i be asking the DBA for as surely if they are prepared to work together i am entitled to at least see some proof before i acknowledge the debt.
Regards,
Kevin
Submitted: 1 year ago.
Category: Law
Expert:  Alex J. replied 1 year ago.

Hi, Thank you for your question and welcome. My name is ***** ***** I will assist you. Did they ever send you a notice confirming the debt was assigned to DBA? Have they threatened to commence court proceedings? Kind regards AJ

Customer: replied 1 year ago.
No they havent, i have moved house twice though. The last time i made a payment was 5th may 2010
Customer: replied 1 year ago.
they have said if i dont stick to the agreed payments i made over the phone they will take legal action. the phone call was made under duress and was a spontaneous reaction to the letter. is the conversation and admission of the debt
Customer: replied 1 year ago.
the DBA contacting me now says it is acting on behalf f the assignee
Expert:  Alex J. replied 1 year ago.

Hi, Thank you. I would recommend you write back to them as follows:

- You deny liability for the debt, or that it is enforceable;

- Say that the threats they are making to you are a criminal offence, as it is illegal to unlawfully harass someone for money they do not owe under S.40 of the Administration of Justice Act 1970;

- Say that any further baseless correspondence demanding money without evidence, will be treated with a complaint to the banks regulator (or potentially the police or trading standards).

Technically yes the acknowledgement of debt must be done in writing, this is known as the statute of fraud 1677 (old but good law). The bank should be statute barred from claiming the debt if the claim was made after 6 May 2016.

If the bank does sue, that is their prerogative so you would have to defend yourself. You could argue the acknowledgment is not effective as (i) Did not receive notice of assignment as required by law and (ii) You did not actually know what you were acknowledging as no evidence of the debt was provided. Kind regards AJ

Customer: replied 1 year ago.
Is this all effected y the fact the Debt originated in Germany, they are claiming the the Statute of limitations is different there.Not wanting to sound ungrateful but do all these laws also protect me even though the debt originated in germany
Expert:  Alex J. replied 1 year ago.
Hi, Thank you. I would recommend you write back to them as follows:- You deny liability for the debt, or that it is enforceable;- Say that the threats they are making to you are a criminal offence, as it is illegal to unlawfully harass someone for money they do not owe under S.40 of the Administration of Justice Act 1970;- Say that any further baseless correspondence demanding money without evidence, will be treated with a complaint to the banks regulator (or potentially the police or trading standards). Technically yes the acknowledgement of debt must be done in writing, this is known as the statute of fraud 1677 (old but good law). The bank should be statute barred from claiming the debt if the claim was made after 6 May 2016.

If the bank does sue, that is their prerogative so you would have to defend yourself. You could argue the acknowledgment is not effective as (i) Did not receive notice of assignment as required by law and (ii) You did not actually know what you were acknowledging as no evidence of the debt was provided. Kind regards AJ

Expert:  Alex J. replied 1 year ago.

Hi, Thank you. That may change things slightly, but they would still need to enforce the debt in the UK. How did the debt arise in the first place? Was it under a facility letter or credit card for example?

Customer: replied 1 year ago.
it was a loan i took out from deutsche bank when i was posted their with the army, i then left the armyand returned to the UK. I made a few payments and then foolishly stopped paying. I have no problem admitting to the debt i just want to make sure this is just not a company trying its luck. Would the loan from germany be classed a a regulated credit agreement as this partocular UK DCA is not authorized to collect these payments as its not a member of the FCA
Expert:  Alex J. replied 1 year ago.

Hi, Thank you. The loan wont be a regulated credit agreement unless it was transacted under English contract law. The bank would have to obtain a court order against you in Germany and then enforce that order in the UK. Alternatively they would have to sue you in the UK - in which case the agreement may be viewed as statute barred. Aside from being staute barred have they provided any evidence the debt was incurred?

Customer: replied 1 year ago.
They haven't provided any evidence of how the debt incurred. They are however saying that because i arranged re-payments over the phone that this has reset the bar and these recordings can be used in court to prove my liability for the debt
Expert:  Alex J. replied 1 year ago.

Hi. Thank you. I do not know about a German court but they would they would need special permission to use it in a uk court. Ultimately your defence against this is that you made the arrangement under duress and it cannot be a valid arrangement as without proof of the debt you could not have possibly known what you were agreeing to. Kind regards AJ

Expert:  Alex J. replied 1 year ago.

On that basis their argument does have a flaw you exploit. Kind regards AJ

Customer: replied 1 year ago.
Thank you Alex. Is there any sort of act or policy i could quote to him in correspondence reference the above.I have also sent a formal SAR for all data. I know this can take up to 40 days, can he still proceed with court action as this seems unfair as i have nothing to build my defence on. Ultimately the only thing im trying to stop is the CCJ, as if i obtained a CCJ i wouldnt be able to continue my present job and hence would be unemployed unable to pay him any money owing
Expert:  Alex J. replied 1 year ago.

Hi thank you. You cannot stop them issuing proceedings because that is their prerogative but if they do issue proceedings you will have notice and can defend yourself. The only thing I can suggest is you put pressure on them not to issue by saying you will hold them responsible for your costs or complain to their regulator for abusing their bargaining position and forcing you to pay under duress.

Customer: replied 1 year ago.
Once notice has been served can i offer payment and stop the process going ahead or does it have to be seen through. Are they allowed to push ahead if the debt is barred?
Customer: replied 1 year ago.
as the debt has been converted from Euros into Pounds what conversion rate do they use as i have worked off the date of the letter and the exchange rate makes the debt 1000 less then started on the letter.In your experience what sort of percentage should i offer if im willing to make an offer to settle. I understand this debt would have been brought as part of a portfolio and possibly they would have paid a couple of pence in the pound. Would offering them 35% of the debt be a good negotiating point to start from
Customer: replied 1 year ago.
Alex i have found this out about phone recordings in Germany.Germany is a two-party consent state—telephone recording without the consent of the two or, when applicable, more, parties is a criminal offence according to Sec. 201 of the German Criminal Code[9]—violation of the confidentiality of the spoken word.Would i be able to use this however as the recording would have been done in the UK?
Expert:  Alex J. replied 1 year ago.

Hi thank you. In relation to your first point are considering settling not? Are you saying you believe they have committed an offence in Germany? Kind regards AJ

Customer: replied 1 year ago.
I would consider settling if the debt was offered at a significantly reduced rate and by that i would probably mean between 35-40% as i know they would have brought these debt within a portfolio for a few pence in the pound.I have read that Germany is a two way state, and whilst i cant say they have committed an offence in Germany as the call was made in the UK, surely they couldn't use this telephone conversation in Germany? So would they be allowed to use this as evidence or could they submit it saying because it was obtained in the UK then German law has no significance here. The reason i ask this is because there always referring back to the fact the debt originates from Germany, hence thats the law there processing everything through.Do you also know where i can find an SAR request to send to the creditor in Germany as believe this may speed up the process of obtaining proof. Have searched internet and have been unable to find one
Expert:  Alex J. replied 1 year ago.

Hi thank you. A Subject Access request can simply be made in writing to the bank concerned - the process is same as in the uk. In relation to the evidence you could always object to its presentation in court as it was illegally obtained.

Customer: replied 1 year ago.
I'm getting slightly confused about the phone conversation piece Alex and am probably looking into it a bit too much. I think im realistically looking for a yes or no answer to ease my mind, and i know this probably snit possible Can the recording be used in the UK as at the moment its pretty much the only thing that would have reset the bar on the time period.He has obviously told me that it can and it is, as arranging payments is me admitting the debt and also entering into a verbal agreement.Obviously i know these DCA will say most things to enable a little scare mongering but his whole case is built on these recordings.Also buy passing this debt onto a UK debt collection agency is this some what admitting that the loan is statutory barred in Germany, as wouldnt it be easier to get a judgement there and then get the UK courts to enforce it?Apologies for the repeated questions but im transitioning between UK and German law even though i gather the UK is where they will attempt to pus the proceedings
Expert:  Alex J. replied 1 year ago.

Hi, Thank you. The problem I cannot say for certain what a court would decide, but on the face of the information you have provided i do not believe the recording would be admissible. Firstly it was obtained illegally under German Law, Secondly under English law admitting a debt needs to be done in writing.
If they are passing the debt to a UK agency then they are seeking to enforce it under English Law and therefore you have grounds to say it should be barred.

Customer: replied 1 year ago.
Thank you Alex