Is an affidavit threatening
Consumers often find debt collection letters threatening
In the early warning network of the consumer advice centers, complaints about debt collection claims are very important across almost all market segments. In the area of digital services, for example, numerous consumer complaints about debt collection were received from providers of dubious route planners, online dating portals and internet competitions. Advice from the consumer advice centers shows that consumers feel intimidated by the insistent and sometimes aggressive wording of the respective letter; for example by threatening a compulsory attachment or announcing the bailiff.
On behalf of the market watchdog team at the Bavarian Consumer Center, the survey institute forsa 1006 asked representative selected Internet users how threatening they perceive four selected formulations from real debt collection claims.
The results of the survey show that consumers generally classify debt collection letters as threatening, but do differentiate them. The more the letter shows only supposedly negative consequences for the consumer, i.e. the visit of the bailiff or the arrest warrant, and the less reference is made to the actual next steps, such as the initiation of legal proceedings, the more threatening the wording is perceived. This suggests that the individual consumer generally does not have sufficient legal expertise to properly assess the announced consequences. This can result in consumers being intimidated and paying claims that are unjustified.
The following uses the four exemplary formulations to show how threatening consumers perceive these letters on the one hand and what is actually behind them from a legal point of view.
In the following, the four exemplary formulations show how threatening consumers perceive these letters on the one hand and what is actually behind them from a legal point of view:
|Formulation example||perceived threat||That's what the lawyer says|
|“For this reason, our debt collection field service team will visit you on Friday, April 14th, 2017 at 10:00 am to seize your valuables. As far as possible, the objects will be transported away with the van, for larger objects a forwarding agent will be commissioned for the following day. If you are not at home yourself or if you open the door yourself, a locksmith will be called in to open the door. "||81%||Collection agencies have no special rights. You are therefore neither authorized to simply seize property, nor to simply enter apartments or land. Only the bailiff is authorized to do so. Otherwise, the employees of the debt collection agency are liable to prosecution. A debt collection company is therefore not allowed to open doors itself or have them opened with the help of a locksmith. This wording is therefore not legally tenable.|
|“The initiation of legal action is imminent. After obtaining an enforcement title, there is the possibility of enforcement against you for 30 years: bailiff, garnishment of wages, attachment of accounts, warrant of arrest, affidavit, etc. - we hope that you won't let it get that far! "||72%||In this formulation, the actual legal steps are not mentioned at important points. In order for foreclosure measures to be carried out in the first place, a judicial dunning procedure or legal action is required. Above all, however, there is no indication that the court must also decide in favor of the obligee (e.g. enforcement order or judgment) before the foreclosure can be pursued. If an arrest warrant is to be applied for, the debtor must have previously refused to submit the affidavit.|
|"Please note that if you fail to pay this request, we will be forced to take legal action against you. Should wecannot record any receipt of money and the claim remains undisputed, we are entitled to report the existence of the collection procedure - if all legal requirements are met (according to § 28a BDSG) - to credit agencies. "||49%||According to the BGH, a creditor who threatens to transmit the data to a credit agency must also mention that the debtor's dispute with the claim is sufficient to prevent the data being transmitted (see BGH, judgment of 19.03.2015 I ZR 157 / 13). The reference to an entry in the SCHUFA, for example, is not intended to give the creditor some leverage. Rather, the debtor should be given the opportunity to settle or dispute the claim before entry. Since the creditor does not conceal the fact that the debtor has it in his hand by simply denying the claim to avert a threatened SCHUFA entry for the time being, the formulation is permissible.|
|"If we do not have any incoming payments on our account by April 14th, 2017, we will recommend our client to assert the claim immediately in court."||45%||The next steps are listed here neutrally. If the debtor does not pay, the next step for the creditor or the debt collection company is to initiate the dunning procedure or to bring legal action directly. Since either the dunning court or the ordinary court is responsible, it is always a matter of the judicial assertion of a claim and is thus presented correctly.|
- Please imagine that you receive a letter or an e-mail from a debt collection company asking you to pay an open invoice. We would like to know from you how threatening you yourself find these formulations?
- The following answer categories were given: “very threatening”, “threatening”, “less threatening” or “not at all threatening”.
- Method: Representative online survey via CAWI
- Selection process: Quoted selection of Internet users aged 18 and over from the forsa.omninet panel
- Statistical error tolerance: Maximum +/- 3 percent in the total sample
- Sample size: n = 1,006 (net)
- Implementation period: 03/23/2017 to 03/28/2017
- Implementing institute: forsa main, Marktinformationssysteme GmbH on behalf of the market watchdog digital world of consumer centers
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