sectioned and being chased by dca'a

[mina2974]

Hi

Im not too sure where my friend stands with this one, her stepfather has been sectioned under the mental health act and is being chased by several dca'a,

city finacial have got 1st credit representing them and despite being informed that her stepfather is mentaly incapable of dealing with his debt situation, they are sending letters stating they will be applying for a charging order against the property he owened with his soon to be ex wife,

Is there anything that can protect them until her stepfather is in a position to deal with his debts himself, at the moment he does not even regonise members of his family and cant even give anyone authority to deal on his behalf, we need to send a letter to all the dca's but dont really know what to send, any help would be appreciated as the family has a lot to cope with at the moment

Sam

[surfaceagentx20]

x20

Edited September 11, 2008 by surfaceagentx20
procedural advice deleted in deference to The Mangement

[Enron]

Will get someone with more knowledge than myself to comment on this.

[Enron]

Gonna PM you, as there is potential that 1st Credit could be reading threads here.

[mina2974]

He cant give power of attorney as he is in no fit state to do so, he was sectioned on sunday after a nationwide alert was put out for his safty, he is in an extreamly bad way, he has had ongoing mental health problems since august last year and also has heart problems, does any one know of a letter i can send to his creditors, or if any one could help me draft one i would really apprecaite the help

there are over 12 creditors but 1st credit are definatly the most vicious and I have advised my friend to use written communication only but do not know what would apply in these circumstances, a ccj has not been applied for yet but they informed my friend today that this would be the next step unless she agreed to pay them £56pm, I have informed her that she is not liable for his debts and does not have to pay, his only income is income support and dla

Many thanks for all of your help

Sam

[Enron]

First best not to put too many details up here, as we know that DCAs view the forum.

 

I've forwarded your e-mail address onto someone who can help and will be in touch with you soon.

[noomill060]

doesnt that just take the biscuit

Edited September 10, 2008 by noomill060
fear of thunderbolts

[noomill060]

mina-

 

No more details. Your friend and stepdad will get help from CAG, guaranteed.

 

Best wishes.

[mina2974]

Thank you all for your support, We really appreciate it as its difficult enough to see someone you care about in this situation without being hounded by dca'a as well!

 

Sam

[surfaceagentx20]

Thanks for your PM Sam.

 

I removed my earlier post since it was previously suggested that publishing my advice was in some way going to be of use to the opposition. On a review it is perfectly clear that the information I provided was information publicly available on the Court Service and other legal information websites and further, neither your post nor mine was creditor/debtor specific.

 

I don't have the original post to hand at this time but I'm happy to repeat the gist of it and expand on it for you. Here goes:

 

Proceedings for the recovery of a debt through the civil courts are governed by the Civil Procedure Rules (CPR). CPR 21 deals with proceedings by or against 'protected parties'.

 

CPR 21.1 says of Part 21,

In this Part-

(a)‘the 2005 Act’ means the Mental Capacity Act 2005;

(b)‘child’ means a person under 18;

©‘lacks capacity’ means lacks capacity within the meaning of the 2005 Act;

(d)‘protected party’ means a party, or an intended party, who lacks capacity to conduct the proceedings;

 

Sections 2 and 3 of The Mental Capacity Act 2005 say:

 

“a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”;

the impairment may be permanent or temporary. (section 2)

 

“InabiIity to make decisions”: a person is unable to make a decision for himself if he is unable-

(a) to understand the information relevant to the decision,

(b) to retain that information,

© to use or weigh that information as part of the process of making the decision, or

(d) to communicate his decision (whether by talking, using sign language or any other means). (section 3)

 

In the circumstances your friend's stepdad will be regarded as 'a protected party', in regard to which the CPR 21 protection will be afforded.

 

The protection afforded is that owing to the lack of capacity he is treated as unable to conduct proceedings unless he does so through somebody else. That somebody else is his 'litigation friend'. The rationale behind this requirement is that a protected party, adopting the criteria from section 3 of The Mental Capacity Act 2005, will always be be unable to make a decision because of an impairment or disturbance in the functioning of the mind or brain (whether temporary or permanent).

 

The protection extends to the service of the proceedings, even though at that time, a litigation friend will not have been appointed. Service of proceedings directly upon a protected party is bad service. Where a creditor begins proceedings against a protected party and wishes to serve the Claim Form he may only do so in a manner complying with CPR 6.6.

 

The category of persons who may accept service on behalf of the protected party under CPR 6.6 are:

 

(i) the attorney under a registered enduring power of attorney,

(ii) the donee of a lasting power of attorney,

(iii) the deputy appointed by the Court of Protection; or

if there is no such person, an adult with whom the protected party resides or in whose care the protected party is.

 

Even where the Claim Form has been served in accordance with CPR 6.6, the Claimant is still prevented from taking any further steps in the case until a litigation friend is appointed CPR 21.3).

 

Often the Claimant will want to get on with the claim and CPR 21.3 operates as an obstacle to him. Accordingly, the Claimant may apply to the court for the appointment of a litigation friend. The Claimant's application is made under CPR 21.6(3). Notwithstanding the 'no further steps' rule, the application must be served on the protected person. Service will be in accordance with CPR 6.6. Before making the application, the claimant will need to secure the availablity and willingness to act of a competent person and the court will need to be satisfied that the proposed person meets this criteria.

 

Alternatively a member of the protected person's family will be willing to act as litigation friend. In which case, that person can make an application to the court to be appointed.

 

The procedures to be followed are set out at CPR 21.4-8.

 

In the typical debt collection case, none of these procedures are likely to have been followed. The service of the Claim Form will not have been in accordance with CPR 6.6. The creditor will most likely have obtained default judgment. The application for that too would be a step taken in breach of CPR 21.3. The judgment will be an irregular judgment therefore and any enforcement action begun on the basis of that judgment is regular wil be quashed.

 

In other words, the creditor who begins proceedings against a protected party and who does so without regard to the mental capaicty of his debtor does so at his own risk. He is especially at risk if after being alerted to a question over the mental capacity of the debtor he continues regardless.

 

I say this because:

CPR 7.5 requires the Claim Form to be served within 4 months of issue. If service in accordance with CPR 6.6 is not made within 4 months of issue, service can only be made thereafter on an application for an extension of time. An application for an extension of time must be made promptly.

Invariably these debt collection claims will be issued out of Northampton and served by post. If it can be shown that the DCA was advised that his proceedings had been improperly addressed to a protected party, the court may be slow to permit the DCA an extension of time for service if he did not make that application promptly after being told the debtor was a protected party.

 

If the application is refused, the DCA will be unable to attempt service of the Claim Form in accordance with CPR 6.6. It follows too that any steps taken after service which was bad will also be quashed. The net result would be all proceedings under the claim will have been quashed and the Claim Form can no longer be served. The DCA will have to go right back to the beginning again. By the time he does so, he may find his claim statute barred.

 

Any queries, or concerns about what to do next, let me know.

 

x20

[surfaceagentx20]

Got your 2nd PM and in view of what I said earlier, I recommend a letter from your friend to each debt collector etc you know of. I have drafted the letter as if it was coming from your friend, cutting out all legalese. It runs as follows:

 

To: The Creditor / DCA / Claimant as the case may be:

 

(Your Friend puts here address here)

 

Dear Sir

 

Re: (put your Friend's Step Dad' full name)

 

I am the step daughter of (name) who you have been chasing for an alleged debt. You may or may not have begun legal proceedings against him. I do not know, but if you have will you please let me have some details about the proceedings like the court in which you have started the proceedings, when you started them and the court case number.

 

(Name) is unwell and has been unwell for some time. He has been mentally unstable since at least August 2007 and has been unable to deal with his affairs throughout this time. This is why you have not had a response from him.

 

I have been told that you can't harrass a person with money claims who is in this condition and that you have to go through the proper channels and do things by the book. If you carry on like this I am likely to have you reported. Neither can you chase me for the debt because I don't owe any money to you. [i think it was terrible that you made threats to me about what you will do if I didn't pay you - delete this bit in a case where a threat has not been made].

 

Please let me know what you intend to do in writing to me at my address and that from now on you will be doing things by the book. If you ignore my letter or carry on harrassing my step dad I am likely to have you reported. This is urgent because my step dad is so unwell. Please answer this letter by (state date - allow 10 days afterv writing letter).

 

I have kept a copy of this letter just in case I need to have you reported.

 

yours faithfully

 

Hope this suits. Any queries just let me know.

 

x20

[surfaceagentx20]

One other thing; Quote the DCAs reference if you have it available. It should be on any correspondence that has been sent.

 

x20

[Enron]

Some very good advice there.

 

My reason for requesting that not too many details are put up was with reference to the original poster, as don't want to needlessly identify the individual concerned.

 

It's well known that Citi and Eversheds look in here, so there is also a strong possability that 1st Credit could be watching this thread.

[mina2974]

the family have asked me to convey their thanks to all who are helping, there is alot of reserch into the the links between mental illness and debt but very little information on how to deal with it, this individual never has an overdue bill prior to becoming ill! yet there is nothing to protect him from credit companies

 

Sam

[Enron]

Some DCAs certainly come under the category of parasites....

 

Maybe a case that some official body needs to issue guidance that is readily accessible for individuals in a situation such as this.

 

Potentially I would consider contacting your local MP with regard to the situation that you have found yourselves in with regards to this matter.

[noomill060]

In view of the seriousness of this matter, with this concerning an unfortunate individual sectioned under the Mental Health Act, I think professional advice is needed- see a solicitor.

 

At least report the harassment to the Police.

 

He is a Protected Person as defined by the State.

 

I would *hope* the Police would at least have a quiet word with the DCAs.

Edited September 11, 2008 by noomill060

[surfaceagentx20]

Mina what you mention in your latest post concerns the capacity of protected persons to make contracts.

 

As you will appreciate, what I discussed earlier was the position of a protected person in the theatre of litigation since that is the postion your friend's step dad now finds himself in. There is only so much which can be done whilst he does not have a litigation friend, so to wearn the DCA dogs off, I suggested the letter you asked me to prepare. I hope it does the trick.

 

To deal with your latest point however, a person who lacked capacity owing to being unable to make a decision for himself whether or not to enter into an agreement with a credit company because of an impairment of, or a disturbance in the functioning of, the mind or brain at time the agreement with the credit company was made, will be entitled to declare the agreement he made void once he regains capacity. The agreement will only be enforecable if after regaining capacity he affirms or ratifies the agreement.

 

I dare say the credit company may wish to look into the question whether the person they contracted with did indeed lack capacity, but on proof of [1] the lack of capacity and [2] the lack of subsequent ratification, the position will be as I discussed, subject perhaps to directions as to the return of property transferred by the credit company to the individual and concerns of that kind.

 

x20

[bison]

May I ask what kind of section is he in. If he is just under Section 5(2) then there is little value with that. If he is in section 3 then he is in the best position of all because when someone is put under section 3 then he will have more resources including the social workers, CPN's etc that can help him out and I suggest u utilize them to the fullest or try to get into section 3.

[mina2974]

at the moment he is under section 2 pending a formal diagnosis from his doctor, will pass on this advise to his family,

As he is seperated from his wife and in the process of getting a divorce is there anything she can do via her solicitor to protect the property?

As there is a conflict of intrest due to the divorce i have advised the family to ask the court to appoint someone to represent him should the need arise.

Will be sending out letters this weekend:)

[honey5]

there should be a designated social worker assigned to meet the needs, as well as the appropriate nursing team, they therefore will deal with all matters concerning the said person and take the pressure from the family

wishing them all the best

honey x