Hi Everyone,

I was hoping to get a bit of advice when dealing with BCW group. A few weeks ago I received a formal looking letter from them stating that they were writing on behalf of Activ Kapital to chase an outstanding debt, part of the letter mentioned that Active Kapital could see no reason why this debt was not being paid, I would add I have never had any correspondence at all from Aktive Kapital.

Anyway, the letter went on to threaten legal proceedings should the balance not be paid. The debt itself relates to an old Topman storecard account that I used to have, due to one reason and another I fell behind with payments and as far as I can recall the last payment made by myself was around 2003.

With this in mind and after reading some similar posts on this forum I fired off the Statute Barred letter to them, informing them that I believed this debt to be older than 6 years and unenforceable. A week later I received a reply from them stating that their client (Aktiv Kapital) advised them that the last payment on the account was December 9th 2005, so therefore, the debt was not Statute Barred.

I personally have no recollection of making a payment to them in 2005 and sent them another letter informing them that I do not acknowledge this debt and asking them to substantiate their claims and provide proof that I made this payment. I also asked for a copy of their complaint procedure as well.

Today I have received a reply back from them which was quite surprising as it was only Monday I sent them the recorded delivery letter. In the reply they again refer to the fact that their client advises a payment was made on 9th December 2005 and that the debt is not Statute Barred, almost a carbon copy of the first letter I received. In my eyes they have not provided any proof that this payment was made, which is what I asked for, as far as I can understand it is just hearsay from their client regarding this alleged payment, however they did enclose a copy of their complaints procedure.

I'm not entirely sure what my next step should be now, is what they say regarding what their client advises acceptable in law as proof of payment, or are they legally required to provide documented proof.

Please could someone advise me as to what my next move should be as I am what you could describe as a little clueless when it comes to consumer rights apart from what I have already explained in this post.

I would appreciate any help whatsoever and sorry for the rather long post.

Thanks

Paul

Hi and welcome to the forum.

I would start by sending them a CCA request. This entitles you to a copy of the origional agreement, any variations and a statement of account. The template can be found in the CAG library. You should send this recorded delivery with a £1 postal order made payable to the dca. Request evidence of the last payment made

Who currently owns the debt? Is it the origional creditor or the DCA? Have you received a notice of assignment?

You could also contact the origional creditor and send them a SAR (subject Access Request) this will cost you £10 but they must disclose all the information that they have stored on you. Although you may wish to wait until the results of your CCA request.

Hi Formister,

Thanks for your reply.

The debt as far as I believe is owned by Aktiv Kapital which is the DCA, however, the correspondence that I am receiving is from BCW Group who are acting on behalf of Aktiv Kapital, the original creditor was Topman.

I haven't received anything stating that it is a notice of assignment, although I am not entirely sure what this is.

I will set about sending the CCA off to BCW and ask them again for evidence of the last payment made.

Thanks again for your advice.

Paul

Not a problem.

When the debt was sold to AK, they should of sent you a notice of assignment (NOA) which tells you that they have purchased your debt and all legal rights.

Hi Formister,

Thanks for explaining that. The simple answer is no - I have never had any correspondence at all from Aktiv Kapital relating to this debt. The first I heard about it was when BCW wrote to me a couple of weeks ago in their threatening tones which motivated me to send them the statute barred letter.

Should I mention this when sending the CCA? or just hang fire with it for the moment.

Thanks

Paul

Hi Paul

I echo above advice on CCA and SAR.

It is very important that you have been served a proper NoA by a bandit that claims to own the debt; it is important that you don't acknowledge one that has not been served or improperly served.

Hence echo and check via CCA to DCA bandit and SAR to OC first; bandits are poor in demonstrating a proper audit trail.

Do ask if you're unsure of anything and colleagues will advise.

love

vic

I would hold off asking about the NOA, this could be useful later.

But FYI

When a debt is assigned to a third party for collection (whether it's sold or the third party are just acting on behalf of the original creditor) you as the debtor should receive a Notice of Assignment from the original creditor. This is a legal requirement for any debt - otherwise how would you know that any third party has the right to collect and has not simply picked your details out of a bin. No legal action should be taken by a third party against you unless you have received a notice of assignment informing you that they have this right. Nor should they request payment.

So a notice of assignment would be a letter from the creditor informing you that either they have passed the account for collection or sold the account to Aktiv Kapital on such and such a date. It would also give the account balance outstanding and account reference. The NOA can come from Aktiv Kapital

This is covered by the Law of Property Act 1925 s.136 and covered by contractual law.

Thanks guys for your replies.

I will get the CCA off immediately as far as the SAR goes if I understand correctly this would go to Topman, the only thing is I don't believe I have any information i.e account numbers or reference numbers for Topman as it was so long ago when I last used the account - should I say in the SAR that this debt has been brought by AK and give AK's reference?

Thanks again

Paul

You can do. If you were living at a previous address at the time you need to state this and you may have to provide verification of your identity and your new address.

Don't rush with the SAR. Let the CCA do its work first - make sure you use the template that mentions CPUTR 2008 as well. You should get a full statement of account with a CCA request, make sure you ask for this. This will tell you what was paid and when.

Hi FM

I disagree but this is a very important point to argue and agree.

A properly served absolute NoA is core to a DCA claiming ownership; without it they have no 'cause of action'; hence it is unwise to correspond with anyone claiming to own without checking via SAR of OC first.

An equitable assignment is a crock of sh*t and meaningless anyway and rarely provided; in effect the deployment of any DCA bandit is just a means of bamboozlement, harassment and obfuscation.

A NoA need not be served by the OC but can be served by anybody 'under the hand' of the OC.

These are serious and practical points; I would welcome a clear CAG line from site team and I am willing to stand corrected.

xxx

v

I'm not site team Vic, but you are right. Without a properly executed NoA there is no cause of action. The NoA should basically say goodbye from creditor 1, we've now sold your debt to Creditor 2 who has been assigned the rights AND DUTIES (important wording) of the debt. You should also get a letter from Creditor 2 saying Hello, we've bought the the debt along with all rights AND DUTIES, so from now on you deal with us.

As Vic quite rightly says, without this, there is no cause for action.

Law of Property Act 1925

Under section 136 of the Law Property Act 1925 (“LPA 1925”) notice of assignment must be given to the other party to a contract (i.e. the borrower) expressly in writing. There is no prescribed time limit for giving notice but the assignment is only legally valid when the borrower receives the notice.

Until proper notice is given, only an equitable assignment has taken place. An equitable assignment differs from a legal assignment in that where there is a legal assignment the assignee can bring an action (e.g. for recovery of a debt) in its own name against the borrower. On an equitable assignment the assignee would need to join the assignor as a party to the action before an action could be brought against the borrower. Alternatively, notice would have to be served in the correct manner before an action could be brought in the assignee’s name.

Section 136 LPA 1925 is silent as to how the notice should be served. The default statutory provision is found under section 196 LPA 1925. It provides that if notice is given to the other party by registered letter and is not returned undelivered, it will have been deemed to have been served. This means that whilst notice may be given expressly in writing, it will not be deemed served unless it has been sent by registered post.

Section 196 LPA 1925 refers to “registered letter”. The postal service “registered post” no longer exists. Instead, a notice should now be sent either as first class post with a certificate of posting (available through Royal Mail) or by recorded delivery; under the Recorded Delivery Act 1962 any notice which is deemed served by registered post will also be deemed served if sent by recorded delivery.

Section 196 (5) also states that its provisions extend to notices required to be served unless a contrary intention appears. In other words, if there is an express clause in the contract (which would include a lender’s mortgage conditions) that stipulates how any notices necessary under the contract are to be served, that will take precedence over the statutory provision in section 196.

Conclusion

If the loan conditions are silent as to how notice should be served, the provisions of the LPA 1925 will prevail. Express notice, in writing, must be given to the borrower and either delivery evidenced (by Affidavit of Service) or sent by registered letter, and not returned, in order to be validly served in accordance with section 196 LPA 1925. If this is not done, the borrower could argue that they did not receive the notice and that the assignee has no right to bring an action against the borrower in its sole name.

If, however, the loan conditions provide that notice is to be given by other means, e.g. by normal post, then so long as the method prescribed in the loan conditions has been followed, the notice will have been validly served.

A successful argument by a borrower that a notice of assignment has not been validly served does not give a total defence to that borrower and render the sums being claimed by the lender irrecoverable. The lender would, however, have to serve a notice of assignment on the borrower in using the correct method and then recommence litigation, thus incurring extra expense. Alternatively, the assignee will need to join the original lender into the action. Even if this is possible and the original lender consents, it will again incur extra expense

Thanks guys, I will post an update when they reply to the CCA.

Paul

Hi Tingy

Yes (and thanks for your kind 'ubiquitous' comment elsewhere by the way); but what is curious is that the goodbye from 1 might come from 2 as long as it under the hand of 1.

My fear is that the current regime of financial of terrorism will turn us all into lawyers; then we truly would be 'all in this together'.

x

PS sorry posts crossed with your edit

v

Hi Tingy,

I can't recollect ever receiving the NOA, however we are talking back in 2003 when I believe the last payment was made, so I guess it may be possible that something was sent, I don't have any way to prove that I haven't received it so I guess that it could well be a stalemate as far as the NOA is concerned.

Paul

Hi Paul I have just had dealings with them on behalf of lowells send them CCA request as advised l

Remember don't sign it and send it recorded delivery. they have 12+2 working days to provide it.

They will likely come back to you and say that they don't hold copies of credit agreements at this office and return your postal order thats what they did with me .

When They failed to provide mine I sent the account in dispute letter.

got letter today saying that they had closed it on their system and returned it to their client.

DT

Hi Tingy

 

Yes (and thanks for your kind 'ubiquitous' comment elsewhere by the way); but what is curious is that the goodbye from 1 might come from 2 as long as it under the hand of 1.

 

My fear is that the current regime of financial of terrorism will turn us all into lawyers; then we truly would be 'all in this together'.

 

x

 

v

It does seem to be heading that way. I had my doctor (who knows of my interest in this area) approach me two weeks ago with about one of his vulnerable patients (obviously with their permission). I wrote a letter which I e-mailed to the doctor, the doctor printed it and signed it on behalf of his patient, and hey presto, suddenly the patient gets all their bank charges back. It really is a crazy state of affairs when an interested individual knows more (and often substantially more) than a supposed trained, qualified professional.

Hi Tingy

Were you to be a lawyer you'd be paid more and need to know less.

As it is you are blessed with a clear conscience and human consciousness.

xxxx

v

Hi Paul, like I mentioned earlier , keep the NOA issue for later. Don't worry about getting too bogged down by the information we have given you regarding the NOA's for the moment. It is important but not for the moment.

Keep focussed on the issue in hand. Get your CCA request off as mentioned. Some people on here would argue not sending a SAR until a later date as you may not need to and could waste £10 by doing so.

Others, Me and Victoria included are in the other camp on this issue. Mainly because a, it takes up to 40 days to get the results and b, unless we see an immediate outcome , we generally believe the SAR would be inevitable, and in so, we like to get a head start on the DCA's

Thanks All,

I can't open the link just yet, think I have to make some more posts, but I have found a copy of the CCA letter within the Library which also mentions CPUTR 2008 and this will go off tomorrow morning by recorded delivery

Paul

:-xIt was my fault with the link not how many post you have.

DT

Hi All,

Just thought I would add a quick update.

I had a reply today from BCW to my CCA request. Firstly they returned my £1.00 postal order and stated that they do not hold any records at their offices. They go on to say that they have requested Aktiv Kapital to send me the documented evidence directly and that until then my account with them has been placed on hold.

So I am now waiting in anticipation as to what AK decide to send me. It is also interesting to note that BCW made reference in the title of the letter they sent me to an address that I lived at over 9 years ago so it will be very interesting what documented proof AK decide to send me as they are claiming that my last payment to them was only 5 years ago.

Cheers

Paul

HI Paul

Thats what they sent to me as well .

Now you wait for the 12+2 working days to pass then send this to them.

ACCOUNT IN DISPUTE to BCW...doc Amend it to suit .

After they get it they will likely write back saying that they have closed the account on their books and returned it to their clients and also claim that they have 28 days to produce it which they don't .

DT

Hi DT,

Thanks for the advice and the template - I'm looking forward to using that in a fortnights time - if AK reply I'll post an update.

Cheers

Paul

Hi,

Just a quick update, the 12+2 working days has come and gone and heard absolutely nothing so today I have fired off the account in dispute letter.

I wait with baited breath.....

Cheers

Paul