One Success and Failure

[GolfCaddie]

Some advice would be greatly apreciated.

 

I came across this site a couple of weeks ago and sent 3 statute barred letters to some DCA's.

 

Anyway got 2 replys today....

 

Success with Cabot over a statute barred debt, basically the letter says that they acknowledge the debt is staute barred and that it has been withdrawn from their regular collection process. And that they havent breached any law or regulatory guidelines!!!.

 

 

Now to the Failure

 

A brief history of alleged debt. I bought a PC in 2000 with Time computers.. the account was defaulted on July 2001 with a balance of £2880. Original balance was £1643 and intrest £1200

 

On Sept 2004 I recieved a Formal Notice of Assignment of Debt from AKTIV Kapital. Over the next few years I recieved around another dozen letters from Aktiv Kapital.

 

After coming across this site I sent a stauted barred letter to Aktiv (I live in scotland ) This morning I recieved the following letter

 

 

Dear Mr blah blah

 

We acknowledge receipt of your recent communication, the contents of which have been noted.

 

You have advised that this account is covered under the scottish prescription act 1985 and your account is unenforceable. However, this does not apply to your account, as the last acknowledgement of the debt was the 15th Sept 2005. This leaves it within the five-year limitation period.

We trust this now clears up all of your concerns

 

Tha above balance is still outstanding and payment required

 

Aktic Kapital

 

 

From my point of view, I have never acknowledged the debt. I have never written to Aktiv until 10 days ago.. I certainly have made no payments to the account since it defaulted. I can only conclude that the acknowledgement to the debt on 15 sept 2005 must refer to a telephone conversation.. I do not remember ever talking to Aktiv over the telephone although I cannot be sure.

 

Does talking over the telephone constitute an acknowledgement? and would they have recored the conversation to be used as evidence?

 

 

I my staute barred letter I also asked Aktiv to provide evidence of payment or written contact for the relevent period, they have not provided that information.

 

 

What is my next step?

 

Should I now ask Aktiv for evidence of payment or written contact? would this be done under the Data protection act? Colud someone help me with a letter to Aktiv

 

Finally Aktiv have said I acknowledged the debt on 15 sept 2005, I completly dispute this...do oyou think they have made this up to intimidate me and have they comitted a criminal offence?

 

 

G

[ScarletPimpernel]

I'd be inclined to tell Aktiv that as far as you are concerned you have not either acknowledged the debt, nor made a payment, within the last five years, but that if they disagree, they should provide substantive documentary evidence.

 

It's not entirely unknown for DCAs to allege that a payment was made, and furnish a statement, usually showing a very small payment, with no details of where it came from or who made it. It doesn't take much imagination to guess who's behind the payment.

[Curlyben]

Sounds like a typical AK trick.

The onus is on THEM to prove it is still enforceable, not you to prove otherwise.

 

The ONLY form of acknowledgement that is valid is in writing or by payment.

A telephone call doesn't count.

 

Account In Dispute

 

Dear Sir/Madam

 

 

Account reference: XXXX

 

 

Thank you for your letter of the DATE, the contents of which have been noted.

 

You have previously contacted us regarding the account with the above reference number, which you claim is owed by ourselves.

 

We would like to point out that under the Prescription and Limitation (Scotland) Act 1973 Part I, Section 6,

“If (an appropriate debt) has subsisted for a continuous period of five years −

a) without any relevant claim having been made in relation to the obligation, and

b) without the subsistence of the obligation having been relevantly acknowledged,

then as from the expiration of that period the obligation shall be extinguished…”

 

Unless you can provide evidence of payment or written contact from us in the relevant period under Part I, Section 6 of the Act, I suggest that you are no longer able to take any court action against us to recover the alleged amount claimed.

 

We would also point out that the OFT say under their Debt Collection Guidance on statute barred debt that “it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period”.

 

The last payment of this alleged debt was made over six years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from us in the relevant period under Section 5 of the Limitation Act, we suggest that you are no longer able to take any court action against us to recover the alleged amount claimed.

 

The OFT Debt Collection Guidance states further that “continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred could amount to harassment contrary to section 40 (1) of the Administration of Justice Act 1970”.

 

We await your written confirmation that this matter is now closed and that no further contact will be made concerning the above account after that last letter.

 

We also insist that you supply a full written copy of your complaints procedure..

 

It should also be noted that we will be contacting Trading Standards concerning this matter.

 

Ignoring this letter and continuing to press for payment will not resolve this matter.

 

We will not hesitate to pursue this matter with Trading Standards and the OFT, additionally we will seek immediate legal advice should you continue to press for payment, as we feel this may constitute harassment contrary to section 40 (1) of the Administration of Justice Act 1970, as well as the Protection from Harassment Act 1997.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully,

[sportsflash1]

Hello Golfcaddie,

I am pretty sure someone will be along soon with an answer to the main part of your question - sorry I don't know a lot about the statute barred sitaution.

 

But I had a similar experience with Time computers about the same time as you. I ended up owing £1500 on a £1000 Time computer - even after I had been paying it for a couple of years. Also Time went bust and did not honour their warranty.

 

Anyway the debt got sold to Moorcroft (acting for First Tricity Finance)who I was paying for a few years, until I found this site and sent them a CCA request. They immediately returned my £1 postal order and closed the case.

 

I know this isn't really what you were asking, but it could be an option to consider - once you get more advice on your main question.

 

Good Luck Anyway.

[Curlyben]

Pssst, Sportsflash see my post #3

[GolfCaddie]

Thx curlyben... got your post ( it really helped)and I have already copied it, been printed out and i'm head to post office with it .

[sportsflash1]

Sorry Ben - and all ....When I started typing I was the first to reply! At least I was right about the coming along soon part!

[ODC]

You can rest assured that Aktiv like most DCAs do NOT record their telephone calls. If they did they would be the ones in trouble because of all the unlawful threats they allegedly make when trying to force someone into paying. As CB says even if they had a recording it does not count as the confirmation has to be in writing. AK bought a shed load of Statute Barred debts and are trying with weasley words to get some return.

[rowbo1071again]

CB you are funny!

[Activagain]

AK accused me of making a payment on an alleged debt and when I pressed them for proof all went quite, also they have tried the " You have acknowledged the debt routine " they really must try harder.