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It is not a crime to be in debt!

Thankfully we have moved on from the days when non-payment of a debt usually meant spending time in a debtors' prison. However these days many of those in debt are often subject to unnecessary harassment by lenders. It is understandable that in some cases stern action may be warranted where the borrower stops paying and adopts a difficult stance or fails to inform his or her creditors of the reasons why. However, in some instances creditors pursuing their debtors operate under the rule of "he who shouts the loudest gets paid" and will badger, upset, and weaken their debtor in order to get to get their money.

So what is harassment?

There are many more forms of harassment, but these are the most commonly used tactics.

• telephoning at work, creating embarrassment and fear of dismissal.
• making nuisance visits or telephone calls at inconvenient times.
• Calling on or writing to neighbours, knowing they are not the debtor.
• threatening personal visits, sometimes in letters, giving the impression that creditors have greater powers than they really have.

So what can you do if you are harassed?

Screen incoming calls through an answer machine or other call managing service.

Hide your telephone number from creditors by dialing 141 before making calls. Contact your service provider to see if they can bar specific telephone numbers to stop unwanted callers.

Keep a record of all the telephone calls, including the ones you make. Note the date, time, name of the person and lender or agent to whom you spoke and briefly note what was said. Also note the day because it may be reasonable to telephone you on a weekday, but 8 o'clock on a Sunday morning is not so acceptable.

If a creditor cannot contact you by telephone their only recourse is to write to you. Therefore, keep copies of all correspondence to and from creditors for reference purposes.

Will the Police get involved?

Only if it becomes a serious offence such as threats of violence, blackmail or fraud will Police normally express an interest in getting involved.

What legislation is there to help me?

Section 40 - Administration of Justice Act 1970.
Section 4A - Public Order Act 1986.
Section 1 & 2 - Malicious Communications Act 1988.

The Protection from Harassment Act 1997. An interesting piece of legislation, introduced to deal with stalking offences, but with potential repercussions for creditors. Its provisions are quite complicated and unfortunately cannot be covered in depth in this article but I have highlighted below what I consider to be the most relevant provisions.

Section 1 can be applied to creditors harassing debtors whereby a person is guilty of an offence if they pursue a course of conduct that they know or ought to know amounts to harassment of another. The debtor would need to prove such conduct, i.e. occurring on more than one occasion.

In defence, a creditor can claim that the course of conduct complained of:-

(a) was pursued for the purpose of preventing or detecting crime, or
(b) was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) was, in the particular circumstances, reasonable (eg, for the protection of themselves or another or for the protection of their or another's property.

As well as criminal charges in the more serious cases, the Act also allows a debtor to issue civil proceedings through the Courts. If successful then damages may be awarded for any financial loss and anxiety caused by the harassment. This occurred in the case of Turner v Halifax, a report of which can be found here.

Is there anything else I can do?

In minor cases of alleged harassment it may only require representation to be made to the creditor's head office, supported with evidence if possible and this will usually stop a 'rogue' employee. If this fails to stop the conduct then contact your local Trading Standards Officer or the Trade Association that the lender may belong to. Another contact is the Office of Fair Trading, (OFT), telephone 0845 4 04 05 06, which grants Consumer Credit Licences to lenders as they will have records of previous complaints against any such creditor.

Of course, if the debtor or borrower is obstructive and ignores all reasonable attempts of contact from the creditor or lender and does not adhere to contractual or agreed reduced payments, then a creditor will claim in defense that their action is justified and this would be difficult to argue against.

Remember, being in debt is not a crime, so insist that you are treated fairly and politely at all times.

This article is intended to afford general guidelines on matters of interest. Accordingly, the information in this article is not intended to serve as legal advice. Therefore, no responsibility can be accepted by debtwizard.com, for any loss occasioned by a person acting or refraining from, acting on the basis of this article. Users are encouraged to consult with professional advisors for advice concerning specific matters before making any decision.