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Hong Kong Law Reform Commission |
7.1 Compared with Hong Kong, debt collectors and debt collection
agencies are subject to more regulation and control in many other jurisdictions,
including the United Kingdom, Australia, Canada and the United States of
America. Apart from the traditional criminal and civil sanctions similar to, or
the same as, those already surveyed in previous chapters on the law in Hong
Kong, debt collection is regulated by specific statutory provisions in other
jurisdictions. Such legislation, other than legislation providing for the
licensing of debt collection agencies, will be examined in this chapter. In
addition, this chapter contains an examination of other legislation in the UK of
relevance to debt collection, although not specifically aimed at it.
Legislation on the licensing of debt collection agencies will be discussed in
the following chapter.
7.2 The Administration of Justice Act 1970 introduced the criminal
offence of unlawful harassment of debtors. It is punishable on summary
conviction by a fine of not more than level 5 on the standard scale, which is
£5,000 at present.[203] The
offence is aimed at tackling the common malpractices of debt collection. The
requirements of the offence are set out in section 40(1) of the Act, which reads
as follows:
“A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he -
(a) harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation;
(b) falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;
(c) falsely represents himself to be authorised in some official capacity to claim or enforce payment; or
(d) utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.”
7.3 By
virtue of section 40(3), sub-paragraph (a) has no application in respect of
anything done which is reasonable (and otherwise permissible in law) for the
purpose of:
(i) securing the discharge of an obligation due, or believed by him to be due, to himself or to persons for whom he acts, or protecting himself or them from future loss; or
(ii) the enforcement of any liability by legal process.
7.4 On
the other hand, the scope of sub-paragraph (a) is extended by section 40(2),
which stipulates that a person may be guilty of an offence under sub-paragraph
(a) if he acts in concert with others in the taking of such action as is
described in sub-paragraph (a), notwithstanding that his own course of conduct
does not by itself amount to harassment. Depending on the facts of the case,
there is an argument that a creditor’s employment of a debt collection
agency whose methods are known to be offensive, may amount to “concerting
with
others”.[204]
7.5 The
case of Norweb plc v
Dixon[205] explains two
aspects of section 40(1), namely, what is meant by the phrases “money
claimed from the other as a debt due under a contract” and
“calculated to subject”. On 17 February 1992, Dixon became the
tenant and occupier of premises in Manchester, and was on that date supplied
with electricity at his request. In May 1993, the electricity company sent
Dixon a letter alleging that he owed £677.86 for electricity that had been
supplied to another address where he had never lived. Dixon took steps to
inform the electricity company of the mistake by making telephone calls and
paying personal visits. On 29 July 1993, Dixon’s electricity meter was
recalibrated without his knowledge. After the electricity company finally
accepted that Dixon was not responsible for the debt, Dixon filed an action
under section 40(1)(a), claiming that, as he was in receipt of income support of
only £33 per week, he had to go without food on occasions to meet the
increased electricity meter payments, and he was also worried and shocked by the
electricity company’s letters and actions. The magistrate found there was
a contractual relationship between the parties and the electricity company had
unlawfully harassed Dixon.
7.6 The conviction was quashed on appeal. It
was held that, given the wording “money claimed ... as a debt due under a
contract”, the offence does not require proof of the existence and terms
of a contract which has in fact been concluded, any more than it requires proof
that the debt is in fact due. What is required is proof that the supplier has
made demands for payment of a debt that he claims to be due under a
contract that he claims to exist. There were no findings of such claims.
The electricity company had purported to act under the powers conferred by
statute. It was also held that there was, in fact, no contract between the
parties because the legal compulsion both as to the creation of the relationship
and the fixing of its terms is inconsistent with the existence of a
contract.
7.7 With regard to the meaning of “calculated to
subject”, the court held that the phrase did not mean “intended to
subject”, but meant “likely to subject”. In McDowell v
Standard Oil Co (New
Jersey),[206] it had been held
that the words “calculated to deceive” under section 11 of the Trade
Marks Act 1905 did not mean “intended to deceive” but “likely
(or reasonably likely) to deceive or mislead the trade or the public ...”.
A similar meaning of “calculated” was adopted in Turner v
Shearer[207] involving an
offence under section 52(2) of the Police Act 1964 of wearing articles of police
uniform “calculated to deceive”.
7.8 There is no reported
case on sub-paragraphs (b), (c) and (d). The meaning of the word
“knows” in sub-paragraph (d) has been subject to much judicial
attention in different contexts. Knowledge has been held to include the state
of mind of a person who shuts his eyes to the
obvious.[208] There is also
authority for saying that where a person deliberately refrains from making
inquiries the results of which he might not care for, this constitutes in law
actual knowledge of the facts in
question.[209] The mere neglect,
however, to ascertain what could have been found out by making reasonable
inquiries is not tantamount to
knowledge.[210]
7.9 The Protection from Harassment Act 1997 was enacted on 21 March
1997. The aim of the Act, as stated in its preamble, is to make provisions for
protecting persons from harassment and similar conduct. Harassment of a person
includes causing alarm or
distress.[211]
7.10 Sections
1 to 7 of the Act apply to England and Wales, and sections 8 to 11 extend to
Scotland. The Act is generally not applicable to Northern
Ireland.[212]
7.11 The Act creates two criminal offences and one civil remedy. The
criminal offences are for harassment and for putting people in fear of violence.
The civil remedy is for harassment.
7.12 The requirements of the offence of harassment are set out in
sections 1 and 2 of the Act. If a person pursues a course of
conduct[213] (that is, by speech
or by behaviour on at least two
occasions[214]), which amounts to
harassment of another, and which he knows or ought to know amounts to harassment
of the other, that person is guilty of the offence of harassment.
7.13 A
person ought to know his course of conduct amounts to harassment if a reasonable
person in possession of the same information would think the course of conduct
amounted to harassment of the
other.[215]
7.14 A person
has a defence if he is able to show the course of conduct was pursued under any
of the following three grounds:
(a) for the purpose of preventing or detecting crime,
(b) under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) in the particular circumstances the pursuit of the course of conduct was reasonable.[216]
7.15 A
person guilty of the offence of harassment is liable on summary conviction to
imprisonment for a maximum term of six months and/or a maximum fine of
£5,000. The court may also make a restraining order against the defendant
either for a specified period or until further
order.[217] Breach of the terms
of a restraining order without reasonable excuse is punishable on indictment
with imprisonment for a maximum term of five years and/or a fine.
7.16 Compared with the offence of harassment, this is a more serious
offence punishable on indictment with a maximum term of five years and by a
fine. The requirements of the offence of putting people in fear of violence are
set out in section 4 of the Act. If a person whose course of conduct (that is,
by speech or by behaviour on at least two occasions) causes another to fear that
violence will be used against him, and that person knows or ought to know that
his course of conduct will cause the other so to fear on each of those
occasions, that person is guilty of the offence. As with the offence of
harassment, the standard of the reasonable person in possession of the same
information is adopted to determine whether the defendant ought to know his acts
would cause another to fear violence.
7.17 As with the offence of
harassment, a defendant has a defence if his course of conduct was to prevent or
detect crime or was pursued under any enactment, rule of law, or to comply with
any condition or requirement imposed by any person under any enactment. The
third defence - if the pursuit of the defendant’s course of conduct was
reasonable for the protection of himself, another, or for the protection of his
or another’s property - is more restrictive than the defence of reasonable
conduct available to the offence of
harassment.[218]
7.18 In
sentencing or otherwise dealing with a person convicted of the offence of
harassment or the offence of putting people in fear of violence, the court has
the jurisdiction to make restraining orders prohibiting the defendant from doing
anything described in the
order.[219] Breach of the terms
of a restraining order without reasonable excuse is punishable on conviction on
indictment with imprisonment for a maximum of five years and by a
fine.[220]
7.19 Any actual or apprehended commission of the offence of harassment
may give rise to a claim in civil proceedings whereby damages may be awarded
for, inter alia, anxiety caused by the harassment and any financial loss
resulting from the
harassment.[221] The plaintiff
may also apply to the court for an injunction to restrain the defendant from
pursuing any conduct which amounts to
harassment.[222] The plaintiff
may further apply to court for an arrest warrant if the defendant is in breach
of the injunction.[223] If a
defendant is in breach of an injunction without reasonable excuse, he may be
liable, on conviction on indictment, to imprisonment for a maximum of five years
and to a fine; and on summary conviction, to imprisonment for a maximum of six
months and to a fine.[224]
7.20 The provisions applicable to Scotland are generally similar to
those for England and Wales, except that they are simpler. Instead of creating
two criminal offences and one civil remedy, the Protection from Harassment Act
1997 creates for Scotland only a civil remedy for any actual or apprehended
breach of the prohibition against pursuing a course of conduct which amounts to
harassment.[225] The requirements
of the civil remedy, as well as the available defences, are similar to those for
England and Wales. The court has power to award damages for anxiety and
financial loss and to grant
interdict[226] or a non-harassment
order.[227] Breach of a
non-harassment order is punishable by a maximum term of five years and by a
fine.[228] The court may grant a
non-harassment order if it is satisfied on a balance of probabilities that it is
appropriate to do so in order to protect the victim from further
harassment.[229]
7.21 The preamble of the Malicious Communications Act 1988 states that
it was enacted to make provision for the punishment of persons who send or
deliver letters or other articles for the purpose of causing distress or
anxiety.
7.22 By virtue of section 1 of the 1988 Act:
“1. (1) Any person who sends to another person -
(a) a letter or other article which conveys -
(i) a message which is indecent or grossly offensive;
(ii) a threat; or
(iii) information which is false and known or believed to be false by the sender; or
(b) any other article which is, in whole or in part, of an indecent or grossly offensive nature,
is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.”
7.23 Although
the above provisions are applicable to certain debt collection activities,
Hansard records that the Act is aimed at affording more protection to victims of
‘hate mail’ or ‘poison-pen letters’, including public
figures, families of non-striking miners, and ethnic minorities, and that it
seeks to make provision for offensive articles or messages sent other than by
post or by telephone.
7.24 A defence is available for a person demanding
repayment of a debt where the party making the demand believes he has reasonable
grounds for doing so. A person would not be held guilty of subsection
(1)(a)(ii) if he shows -
“(a) that the threat was used to reinforce a demand which he believed he had reasonable grounds for making; and
(b) that he believed that the use of the threat was a proper means of reinforcing the demand.”
As
a general matter, abusive debt collection activities are unlikely to fall within
the scope of the defence.
7.25 The Trade Practices Act 1974 is the only federal legislation
governing general debt collection practices in
Australia[230]. It applies
to:
a) corporations;
b) individuals engaged in international, interstate or territory trade or trade with the Commonwealth;
c) individuals using postal, telegraphic or telephonic services.[231]
7.26 Most
creditors collecting their own debts, professional debt collectors and
collection agencies would fall within categories (a) and (c). An instance not
covered would be one in which only personal visits are made by an individual
creditor or by an individual debt collector, in the course of collecting a debt
from another individual in respect of a debt which does not arise from
international or interstate or Commonwealth trade and
commerce.[232] Relevant
provisions of the Trade Practices Act 1974 are sections 52, 53 and
60.
7.27 Section 60 provides that the use of physical force, undue
harassment or coercion in connection with the supply of or payment for goods or
services by or to a consumer is prohibited. The prohibition, it seems, is not
limited to conduct directed to the debtor only, but extends to conduct directed
to the debtor’s family or
associates.[233] The Act does not
further defined what constitutes “physical force, undue harassment or
coercion”.
7.28 Section 53 prohibits the making of a false or
misleading statement concerning “the existence, exclusion or effect of any
condition, warranty, guarantee, right or remedy” in connection with the
supply of goods or services. Although it is possible that this prohibition
extends to the making of false or misleading statements concerning a
creditor’s remedies upon default, it is more likely that the section is
limited to false or misleading statements concerning the debtor’s rights
as a
purchaser.[234]
7.29 Section
52 prohibits the use in trade or commerce of misleading or deceptive conduct.
In 1977, the section was amended to include conduct that is likely to mislead or
deceive. This amendment makes clear that an intention to deceive is not
necessary, nor is it necessary that any person is in fact deceived. It is,
however, unclear whether the standard of the average person or that of the
defendant’s actual or constructive knowledge would be adopted to determine
whether the conduct is likely to mislead or
deceive.[235] It is probable that
an objective standard is applicable.
7.30 The Trade Practices Act 1974
imposes both civil and criminal remedies for breaches of sections 53 and 60, but
only civil remedies are available for breaches of the general prohibition on
misleading or deceptive conduct referred to in section 52. The criminal
sanctions are fines of up to AUD$20,000 for an individual or up to AUD$100,000
for a corporation.[236] The civil
remedies include damages, injunctions and ancillary orders.
7.31 Sections 60 and 52 of the Trade Practices Act 1974 have been
examined by the Federal Court of Australia in Australian Competition &
Consumer Commission v McCaskey & Cash Return Mercantile PTY Ltd FCA
1037,[237] in which the Australian
Federal Court made some observations on the sections. The case involved a
collection agency, “Cash Return”, and its employee, Ms Sharyn
McCaskey, both of whom were sued by the Australian Competition & Consumer
Commission (“the ACCC”) and consented to the making of various
orders by way of declaration and injunction. The task before the court was to
consider whether the proposed orders were intra vires and appropriate. In
connection with the interpretation of section 60 and ‘harassment’,
French J observed:
“The word “harassment” as used in s 60 must serve two broad purposes. It describes a range of conduct, in connection with the supply of goods or services which involve, inter alia, applying repeated pressure to a consumer who is under no pre-existing obligation to acquire. It also describes conduct in relation to a consumer who is under an unfulfilled obligation to pay for goods or services. Given the range of cases that it can cover, the question whether or not there is harassment involves evaluative judgment. The word “undue” adds an extra layer of evaluation which is more relevant to the case of debt recovery than to the sale of goods or services. Repeated unwelcome approaches to a potential acquirer of goods or services could qualify as harassment and, so qualified, require very little additional evidence, if any, to attract the characterisation of “undue harassment”. On the other hand a consumer who owes money to a supplier can expect repeated unwelcome approaches requesting payment of the debt if he or she does not pay. No doubt such approaches might also qualify as harassment. If legitimate demands are reasonably made, on more than one occasion, for the purpose of reminding the debtor of his or her obligation and drawing the debtor’s attention to the likelihood of legal proceedings if payment is not made, then that conduct, if it be harassment, is not undue harassment. If, however, the frequency, nature or content of the approaches and communications associated with them is such that they are calculated to intimidate or demoralise, tire out or exhaust a debtor rather than convey the demand and an associated legitimate threat of proceedings, the harassment will be undue.”
7.32 With
regard to the meaning of ‘coercion’ in section 60, French J
said:
“The collection of debts may involve coercion in the sense that the debtor is subjected to the pressure of the demand and the legitimate threat of civil process for recovery with the additional cost and damage to credit which that can involve. Such pressure may be thought of as coercion but is entirely legitimate and not “undue”. Where the demand includes content which does not serve legitimate purposes of reminding the debtor of the obligation and threatening legal proceedings for recovery but is calculated otherwise to intimidate or threaten the debtor, then the coercion may be undue. So if a threat is made of criminal proceedings, or of the immediate seizure and sale of house and property, a remedy not available in the absence of retention of title or some form of security, the coercion is likely to be seen as undue. The threat of criminal proceedings itself may be an offence against State laws. Quite apart from content the manner or circumstances of a demand or communication, including the language used, the time and place at which it is made and the person to whom it is communicated, may go beyond the legitimate purposes of drawing attention to the existence of the obligation and the consequences for non-compliance. Again such a communication may amount to undue coercion. Obvious examples include the use of personally abusive or obscene language, conveying the demand to uninvolved family members, particularly children, or conveying the demand through a third party in order to embarrass the debtor when the debtor could reasonably have been the subject of a direct communication. Each case will turn on its own facts. ...”
7.33 As
for section 52 on misleading or deceptive conduct, French J declined to make an
order in connection with one of the alleged incidents that constituted
contravention of the section. He observed that:
“An agent who, on instructions, asserts that an alleged debtor is liable and seeks payment of the debt under threat of recovery action does not engage in misleading or deceptive conduct just because, on the true facts of the case, the alleged debtor is not liable. The assertion of liability if reasonably based on instructions, may be the statement of an opinion honestly held or a representation of the opinion of the creditor. A legal practitioner writing a letter of demand on instructions which there are no reasons to disbelieve, does not engage in misleading or deceptive conduct if a court subsequently finds there to be no liability. The declaration alleges simply that there was no legal liability on the part of the Campbells thereby falsifying the assertion to the contrary attributed to Ms McCaskey. It does not allege a statement by Ms McCaskey of an opinion which she did not hold or for which there could be no reasonable basis. On the face of it the third paragraph of the declaration does not identify a contravention of s 52 and I decline to make it.”
7.34 As
against the debt collector, the court ordered that: (i) a declaration should be
made that it had used undue harassment and coercion against certain named
persons, contrary to sections 60 and 52; (ii) an injunction for three years
restraining the collection agency from repeating conduct mentioned in the
declaration; (iii) the debt collector should attend a Trade Practices Compliance
Programme seminar; and (iv) she should pay the ACCC’s costs of
proceedings.
7.35 As against the collection agency, in addition to items
(i), (ii) and (iv) in the preceding paragraph, the court ordered that the agency
should at its own expense publish an apology of specified contents and size. In
connection with the publication of an apology or notice, French J said:
“In Australian Competition and Consumer Commission v Real Estate Institute of Western Australia at 132-133 I reviewed the authorities and principles governing the making of such orders. A legitimate purpose of an order for such advertisements flowing from contraventions of Part IV or Part V is to inform the relevant public or markets of the outcome of the litigation. In that way the public and those in the relevant markets for goods and services have at least a broad understanding of the way in which the particular contraveners have behaved and have had to change their conduct. They will increase the probability that the public and those in the relevant markets may be put on inquiry about the lawfulness of future conduct by the contravener which may be seen to breach the act and/or the injunctions which have been granted. In this way public advertising may assist in the enforcement of the injunctive orders and the prevention of repetition of the contravening conduct. When there has been misleading or deceptive conduct, a notice may be ordered to correct what has been mis-stated.
Importantly it is not in my opinion appropriate to order such notices simply to announce a win for the ACCC or the contrition of the respondent. Nor is the general education of the public about the Trade Practices Act a price to be exacted from a respondent for transgressing. So the notice must be related to righting the wrong which has been done or aiding in the enforcement of the other orders made. As with the debt collection process itself, the test of the proposed course of action is whether it is calculated to serve and only to serve the legitimate purposes of the law.
In this case the notice proposed is headed “An Apology”. Notwithstanding my reservations about the inappropriateness of orders for the publication of statements of contrition, the proposed notice is an appropriate way of drawing to the attention of those debtors whom it was sought to threaten, intimidate and abuse, that Cash Return accepts the inpropriety (sic) of that conduct. In my opinion the notice is within power and appropriate and orders will be made accordingly.”
7.36 There are various sanctions against abusive debt collection
practices. Criminal penalties are imposed for the following activities:
By licensed debt collectors
7.37 The United States of America started to tackle the problems
arising from abusive debt collection practices through legislation in the
1970’s. Provisions against abusive debt collection practices were
included in some model statutes such as the Uniform Consumer Credit Code (1974),
the more pro-consumer National Consumer Act (1970), and the Model Consumer
Credit Act (1973). These model statutes were enacted in some states with or
without local variations.
7.38 In 1977, the Federal Government enacted the Fair Debt Collection
Practices Act (“the FDCPA”), which took effect in 1978. The FDCPA
is applicable only to the collection of consumer debts by collection agencies.
It does not apply to collection of commercial accounts, or to creditors
collecting their own debts.[240]
Under a 1986 amendment to the FDCPA, attorneys who collect debts on a regular
basis are also covered by the FDCPA. The FDCPA was enacted to eliminate abusive
debt collection practices, to ensure that those debt collectors who refrain from
using abusive debt collection practices are not competitively disadvantaged, and
to promote consistent state action to protect consumers against debt collection
abuses.[241]
7.39 A debt
collector may be subject to civil liability under the Act. A debt collector who
fails to comply with any provision of the Act with respect to any person is
liable for the actual damage sustained by that person as a result of such
failure.[242] A person allegedly
harmed by proscribed debt collection practices directed towards the collection
of another person’s debt has standing to sue under the Act.
7.40 A debt collector is generally prohibited from engaging in any
conduct the natural consequence of which is to harass, oppress, or abuse any
person in connection with the collection of a
debt.[243] Usually, whether
conduct harasses, oppresses or abuses any person is a question of
fact.[244] The following cases
show some examples of words or activities that are caught by the provisions
against harassment:
7.42 The FDCPA prohibits a debt collector from using any false,
deceptive, or misleading representation or means in connection with the
collection of debt. Without limiting the generality of the provisions, certain
conduct[249] is regarded as
violation of the statute:
7.44 The FDCPA provides that a debt collector may not use unfair or
unconscionable means to collect or attempt to collect any
debt.[252] Without limiting the
general application of the provision, the following
conduct[253] is designated as
violation of the statute:
7.45 Communications with the consumer: Without the prior
consent of the consumer given directly to the debt collector or the permission
of a court, a debt collector may not communicate with a consumer in connection
with the collection of any debt -
7.48 A debt collector who seeks to communicate with any person other
than the consumer for the purpose of acquiring “location
information”[258] about the
consumer has to comply with the following
requirements:[259]
7.49 The FDCPA further protects consumers by posting the following
information on the
Internet:[260]
7.50 The federal government attempted to introduce a Borrowers and
Depositors Protection Act in 1976, but did not
succeed.[261] In 1933, the
Conference of Commissioners on Uniformity of Legislation in Canada had
considered the desirability of preparing a uniform collection agents Act. The
Conference, however, decided in 1934 not to proceed with the
matter.[262] Debt collection
legislation in Canada, therefore, is confined to provincial
legislation.
7.51 Alberta enacted legislation governing the activities of debt
collections as early as 1965. The legislation was Collection Agencies Act
1965.[263] The Act was primarily
concerned with the regulation of the relationship between agencies and their
creditor clients, though sections 13 and 14 empowered the Administrator of the
Act to prohibit the use of misleading collection letters by collection agencies,
individual collectors, and other persons including creditors collecting their
own debts.[264] Barristers and
solicitors were excluded from the application of the 1965 Act. Offences under
the 1965 Act were punishable by fine or imprisonment and might be taken into
account in the grant or renewal of a licence, or its suspension or
cancellation.[265]
7.52 In
1978, the 1965 Act was repealed and replaced by the Collection Practices Act
1978,[266] which was slightly
amended in 1980. In passing the 1978 Act, the Legislature voted against a
provision against unreasonable oppression, harassment or abuse that contained a
list of 13 prohibited practices applicable to all persons. What survived the
Legislature’s amendments was a list of prohibited practices for agencies
and collectors. This list is found in section 13 of the Collection Practices
Act 1980. It is as follows:-
“13(1) No collection agency or collector shall -
(a) enter into any agreement with a person for whom he acts unless a copy of the form of agreement is filed with and approved by the Administrator;
(b) use any form or form of letter to collect or attempt to collect a debt unless a copy of the form or form of letter is filed with and approved by the Administrator;
(c) collect or attempt to collect money for a creditor except on the belief in good faith that the money is due and owing by the debtor to the creditor;
(d) charge any fee to a person for whom he acts in addition to those fees provided for in the form of agreement or in the information pertaining to fees filed with the Administrator;
(e) if a collection agency, carry on the business of a collection agency in a name other than the name in which he is licensed, or invite the public to deal anywhere other than at a place authorized by the licence;
(f) if a collector, collect or attempt to collect a debt without using his true name and the name of the collection agency that employs or authorises him to act as a collector, as that collection agency’s name is shown on the collection agency’s licence;
(g) collect from a debtor any amount greater than that prescribed by the regulations for acting for the debtor in making arrangements or negotiating with his creditors on behalf of the debtor or receiving money from the debtor for distribution to his creditors;
(h) make any arrangement with a debtor to accept a sum of money that is less than the amount of the balance due and owing to a creditor as full and final settlement without the prior written approval of the creditor;
(i) fail to provide any person for whom he acts with a written report on the status of that person’s account in accordance with the regulations;
(j) make any personal call or telephone call for the purpose of demanding payment of a debt on any day except between 7.00 a.m. and 10.00 p.m.
(2) Subsection (1) applies to a collection agency or collector notwithstanding that he is collecting or attempting to collect a debt that has been assigned to him by a creditor.
(3) The Administrator may refuse to approve any form, form of agreement or form of letter that he considers to be objectionable and, without restricting the generality of the foregoing, he may refuse any form, form of agreement or form of letter that -
(a) misrepresents the rights and powers of a person collecting or attempting to collect a debt,
(b) misrepresents the obligations or legal liabilities of a debtor, or
(c) is misleading as to its true nature and purpose.
(4) When, in the opinion of the Administrator, a collection agency or collector is contravening or has contravened any provision of this Act or the regulations, the Administrator may issue an order directing that collection agency or collector, as the case may be, to -
(a) stop engaging in any practice that is described in the order, and
(b) take such measures specified in the order that, in the opinion of the Administrator, are necessary to ensure that this Act or the regulations will be complied with, within the time specified in the order.”
7.53 In Mainland China, there is no national legislation specifically
dealing with abusive debt collection activities. Relevant provisions touching
on this matter can be found in the Criminal Law and the Civil Procedure Law of
the People’s Republic of China. Article 238 of the Criminal Law provides
that whoever unlawfully detains or confines another person in order to get
payment of a debt shall be punished in accordance with the offence of unlawful
detention.[267] If illegal
distrainment of property is involved, Article
270[268] of the Criminal Law may
be applicable.
7.54 It should be noted that Article 106 of the Civil
Procedure Law relates to debt collection. The Article provides that:
“Decision on the adoption of compulsory measures against obstruction of proceedings shall be made only by the People’s Court. Any unit or individual that extorts repayment of a debt by illegal detention of a person or illegal distrainment of property shall be investigated for criminal responsibility according to the law, or shall be punished with detention or a fine.”
The
acts prohibited under Article 106 of the Civil Procedure Law may call for
criminal sanction or administrative penalty, dependent upon the seriousness of
the acts.
7.55 Singapore, New Zealand and the Republic of Ireland do not have
specific legislation dealing with debt collection agencies or debt collection
practices.
[203] But different amounts
may be substituted by order under the Magistrates’ Courts Act 1980,
section 143.
[204] J K
Gatenby, Park’s Collection of Debts, 1976 at page
71.
[205] [1995] 3 All ER
952.
[206] [1927] AC
632.
[207] [1973] 1 All ER
397.
[208] James & Son
Ltd v Smee [1955] 1 QB 78 at
91.
[209] Halsburys’
Statutes (4th edition) vol 12 at page
545.
[210] As above. See also
Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378
PC.
[211] See sections 7(2)
and 8(3).
[212] Section
14.
[213] Section
7(4).
[214] Section
7(3).
[215] Section
1(2).
[216] Section
1(3).
[217] Section
5.
[218] Section
4(3)(c).
[219] Section 5(1)
and (2).
[220] Section
5(6).
[221] Section 3(1) and
(2).
[222] Section
3(3)(a).
[223] Section
3(3).
[224] Section 3(6) and
(9).
[225] Section
8(2).
[226] Interdict is a
remedy by decree of Court, either against a wrong in the course of being done or
against an apprehended violation of a party’s rights, only to be awarded
on evidence of the wrong or on reasonable grounds of apprehension that such
violation is intended.
[227]
Section 8(5)(b)(ii).
[228]
Section 9.
[229] Section 11.
Also, section 234A of the Criminal Procedure (Scotland) Act
1995.
[230] Australian Law
Reform Commission, Report on Debt Recovery and Insolvency, Report No. 36
at paragraph 27.
[231]
Sections 6(2), (3) of the Trade Practices Act
1974.
[232] Australian Law
Reform Commission, cited above, at paragraph
170.
[233] As above, at
paragraph 27.
[234] As
above.
[235] As
above.
[236] Section 79
of the Trade Practices Act
1974.
[237] Handed down in
August 2000.
[238] Australian
Law Reform Commission, cited above, at paragraph
30.
[239] Australian Law
Reform Commission, cited above, at paragraph
33.
[240] American
Jurisprudence Vol 17, 2nd edition, at paragraph
194.
[241] As
above.
[242] 15 USC
§ 1692k.
[243] Fair Debt
Collection Practices Act 1977 15 USCS
§§1692d.
[244]
Jeter v Credit Bureau, Inc (CAII Ga) 760 F2d
1168.
[245] Bingham v
Collection Bureau, Inc (DC ND) 505 F Supp 864, 67 ALR Fed
952.
[246] Rutyna v
Collection Accounts Terminal, Inc (ND III) 478 F Supp
980.
[247] Harvey v United
Adjusters (DC Or) 509 F Supp
1218.
[248] 15 USC
§ 1692d, at
<http://www.law.cornell.edu/uscode/15/1692d.html>.
[249]
15 USCS §§1692c(1) to
(16)
[250] As above
§§ 1692e(5).
[251]
Swanson v Southern Oregon Credit Service, Inc (CA 9 Or) 869 F2d
1222.
[252] 15 USCS
§§1692f.
[253] As
above §§1692f(1) to
(8).
[254] This usually means
from 8 p.m. to 9 a.m.
[255] 15
USC § 1692c(a).
[256] As
above § 1692c(b).
[257]
As above §
1692c(c).
[258] I.e.
information about a consumer’s place of abode and his telephone number at
such place, or his place of
employment.
[259] 15 USC
§ 1692b.
[260]
http://www.webcom.com/~lewrose/brochure/fdcpa.html.
[261] Institute
of Law Research and Reform of Edmonton, Alberta, Debt Collection
Practices 1984, at paragraph
1.8.
[262] As above, at
paragraph 1.9.
[263] S A 1965,
c 13.
[264] Institute of Law
Research and Reform Edmonton, Alberta, cited above, at paragraph
5.2.
[265] As
above.
[266] S A 1978, c
47.
[267] According to an
Interpretation of the Supreme People’s Court on this article on 30 June
2000, the section is also applicable to demands for payment of unenforceable
debts, for example, gambling and usury
debts.
[268] Paragraph one of
Article 270 provides that “Whoever unlawfully takes possession of another
person’s money or property under his custody and refuses to return it, if
the amount is relatively large, shall be sentenced to fixed-term imprisonment of
not more than two years, or criminal detention or be fined; if the amount is
huge, or if there are other serious circumstances, he shall be sentenced to
fixed-term imprisonment of not less than two years but not more than five years
and shall also be fined”.