CCA 2nd letter - AKtiv Kapital

[guerinaj]

Hi All,

back ground to this one is here http://www.consumeractiongroup.co.uk/forum/general-debt-issues/124578-over-40k-debt-next.html basically I'm helping my nephew sort his life out. CCA'd and SAR'd all 7 of his creditors.

Aktiv Kapital replied with one of their standard letters, so I followed in the footsteps of welshnutteruk and the first template letter from Curlben in this thread http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/125545-aktiv-capitol.html?highlight=40K

I’ve just received a reply from Aktiv Kapital.

#####

The comments made in your letter suggest to us that you perhaps do not fully understand our obligations under the Consumer Credit Act 1974 and Data Protection Act 1998. May we once again point out that we are not the original creditor. We did not provide you with the original credit facility. We purchased your outstanding debt balance and right to collect that balance. We did not purchase your actual agreement, consequently there is not an obligation to provide you with a copy, as the liability attaching to the agreement was not assigned to us.

The Credit Services Association, of which this company is a member, advises in its guidelines that the debt sale process can be complex. However it states that members of the Association are to deal with requests under section 77 as though they were the originating creditor, in so far as they are able to. They state that it is up to each member on an individual basis to decide how far to comply with the Act. It is the policy of this company to seek to adhere to the provisions of the Consumer Credit Act as much as possible, but we repeat that we have not inherited the liabilities of the original creditor.

Due to the nature of this particular agreement, you will have been made aware on opening the account that no agreement would be created.

In your most recent letter, you advise that along with a copy of the agreement, you should also have been provided with a full statement of account. Please note that you original request (see enclosed) .[nothing enclosed] related to a copy of the agreement only Under the Consumer Credit Act 1974, a creditor need only seek to provide what is asked for.

However, as a gesture of co-operation please find enclosed a screen print of payments you have made both to Aktiv Kapital, and to JD Williams Limited, along with details of the last three items ordered from them by you. [No screen print outs enclosed however, the SAR on JDW has provided what they would have sent anyway]

We also enclose a copy of your letter [no letter enclosed] to us dated 17th December 2007, in which you gave authority for us to deal with [me] in respect of all you accounts currently held with us. At no point did you refer to there being any ‘alleged accounts’ held with us. Therefore, as you are not specifically denying that you are liable for the debt, there is no reason why our debt collection activities against you should be suspended.

You owe £1,169.51 on the above credit agreement, which originated with JD Williams Limited. You acknowledged this debt when you last made payment of £11.00 on 07th February 2008. Since the account defaulted at £1,191.51 on 04th October 2007, you have made payments totalling £22.00.

Entirely without prejudice, we would be prepared to accept the sum of £500 as full and final settlement of the account. As a matter of good business practice we shall, on receipt of payment, update your Credit File to Satisfied in Full as opposed to Partially Settled as is normal procedure when accepting reduced payments.

Our offer is made on condition that payment is received by 14th March 2008 and is made simply to try and bring these matters to a satisfactory conclusion. Alternatively we are willing to continue to accept instalments of £11.00 per month. Please note that should you cancel the standing order set up with us, you will have defaulted on the agreement made both orally and in writing by you, to discharge this debt.

In line with our official complaints procedure this letter constitutes the company’s Final Response. A copy of our company complaints procedure is attached for your information. Should you remain dissatisfied with our Final Response you may refer your complaint to the Financial Ombudsman Service and I have enclosed their leaflet ‘Your Complaint and the Ombudsman’ for you information. Should you wish to refer your complaint to the Ombudsman you must do so within 6 months of the date of this final response.

We reserve the right to litigate and to produce a copy of this letter to any Court, on the subject of costs.

####

So my next course of action is to

a) cancel the direct debit to Aktiv Kapital,

b) I’ve spoken with the Credit Services Assoc, and read them the line “section77… in so far as they are able to” and was told that it was possible that AK were outside of the Assoc’s Code of Conduct and I should raise a complaint with the CSA for them to investigate fully.

c) I’m just sorting out the complaint paper work to the FOS,

but I’m also considering sending one final letter back to AK along the lines of the template from “make them aktiv runners” http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/128517-acktiv-kapital-reply-cca.html?highlight=aktiv but will include the following

####

Your suggestion that we do not understand your obligations under the CCA 1974, and the Data Protection Act 1998, is erroneous and can be construed as an attempt to mislead. Your claims to be acting according to your obligations and within the guidelines of your membership of The Credit Services Association are irrelevant. The association is neither a government body nor are they responsible for enforcing legislation in relation to your industry.

####

Does this all sound like a reasonable approach – are there other things I could pick out of the reply from Aktiv Kapial – or given that they have stated that the letter constitutes the company’s Final Response” would I be wasting my time?

 

Cheers for reading all this!

[mrmarmite]

confusing or what.

 

one line they say no agreement was made when account opened

another line they holding you to an agreement that dosen't exist.

 

give em kick up backside

[DCA-KING]

Very intresting point mine is with JD Williams(welshnutteruk my old id) and aktiv

I recieved the same letter i pointed out in a letter to them no CCA no RIGHT to collect the debt i got a reply back JD WIlliams did not have a CCA when you opened the Account (Breach of CCA) so i told them recieved a reply we will take 50% off BOG OFF

i wrote back told them i wont even give them 1p if thats what they asked for

so sent them official complaint stating breach of CCA and would see them in court

i had a phone call off them who siad we will take you to court NO MUPPETS IL TAKE YOU GOODBYE

so i get a letter we will not pursue you anyl onger for this account but we will not remove the default off goes another letter

reply default will remine and we will not enter into anymore correspondece with you

So off to TS

got a call today from my local TS told him about them how they fail with CCA NO cca NO right TO PROCESS data

BUT HERE COMES THE BEST PART HE WAS MORE INTRESTED IN JD WILLIAMS NOT SUPPLYING CCA AND STATING THAT CONSUMERS WHERE AWARE OF IT TOTAL BREACH OF CCA ACT

so he asked can i email him all the letter i sent and recieved from aktiv and thanked me for my knowledge of the acts i told HIM DONT THANK ME THANK MY NEW FAMILY OF FRIENDS ON CAG YOU COULD LEARN A LOT

so hes going to read everything then call chester TS to see if they had any complaints MY REPLY ASK YOUR WIFE TAPE 6 NATION FOR YOU ON THE W/END CUZ YOU WONT BE FINISHED ON THE PHONE BY THEN KNOWING WHAT AKTIV ARE LIKE AND WITH WHAT CHESTER TS PROB HOLD ON THEN

REGARDS CHRIS

[mrmarmite]

lmao DCA-King

[Brassed off]

Guerinaj

 

Given that this is Aktiv's final response letter, there really is no need to reply to it IMO. Get all your info off to the FOS and keep us informed of any outcome.

 

In my case, one call to Consumer Direct resulted in direct contact from the OFT and from the sound of it, they are very interested in Aktiv's "activities"

 

Bo's Ak Krap Thread

 

 

Lol at Chris

[make them aktiv runners]

Sorry I took some time in replying to your pm.

For ease, original text unaltered and my comments are all in red.

The comments made in your letter suggest to us that you perhaps do not fully understand our obligations under the Consumer Credit Act 1974 and Data Protection Act 1998. May we once again point out that we are not the original creditor. We did not provide you with the original credit facility. We purchased your outstanding debt balance and right to collect that balance. We did not purchase your actual agreement, consequently there is not an obligation to provide you with a copy, as the liability attaching to the agreement was not assigned to us.

 

 

Assuming their statement is correct then they do not have absolute assignment, only Equitable. Not really worth arguing with them over, as it is only relevant in any court action, ie they cannot take you to court under their own name if they do not have the duties of the contract.

The Credit Services Association, of which this company is a member, advises in its guidelines that the debt sale process can be complex. However it states that members of the Association are to deal with requests under section 77 as though they were the originating creditor, in so far as they are able to. They state that it is up to each member on an individual basis to decide how far to comply with the Act. It is the policy of this company to seek to adhere to the provisions of the Consumer Credit Act as much as possible, but we repeat that we have not inherited the liabilities of the original creditor.

 

The CSA is a boys club run by DCA’s who set their own guidelines. They would carry some credibility if they quoted OFT guidelines instead!

Due to the nature of this particular agreement, you will have been made aware on opening the account that no agreement would be created.

 

In retrospect, your nephew may now realise that he did not sign an agreement, it is highly unlikely that he would have known at the time that JDWilliams should have asked him to sign a valid CCA. I very much doubt JDW would have written at the time stating that no agreement would be made. This sentence is the one I find as most misleading towards the CCA.

In your most recent letter, you advise that along with a copy of the agreement, you should also have been provided with a full statement of account. Please note that you original request (see enclosed) .[nothing enclosed] related to a copy of the agreement only Under the Consumer Credit Act 1974, a creditor need only seek to provide what is asked for.

 

However, as a gesture of co-operation please find enclosed a screen print of payments you have made both to Aktiv Kapital, and to JD Williams Limited, along with details of the last three items ordered from them by you. [No screen print outs enclosed however, the S.A.R - (Subject Access Request) on JDW has provided what they would have sent anyway]

 

We also enclose a copy of your letter [no letter enclosed] to us dated 17th December 2007, in which you gave authority for us to deal with [me] in respect of all you accounts currently held with us. At no point did you refer to there being any ‘alleged accounts’ held with us. Therefore, as you are not specifically denying that you are liable for the debt, there is no reason why our debt collection activities against you should be suspended.

 

Always refer to “alleged” in any correspondence as they will nitpick letters to find any tiny excuse to justify continuing to pursue.

You owe £1,169.51 on the above credit agreement, which originated with JD Williams Limited. You acknowledged this debt when you last made payment of £11.00 on 07th February 2008. Since the account defaulted at £1,191.51 on 04th October 2007, you have made payments totalling £22.00.

 

Again a little misleading, yes the payments acknowledged the debt as far as keeping the limitation clock going, payments do not however acknowledge the debt is legally enforceable.

Entirely without prejudice, we would be prepared to accept the sum of £500 as full and final settlement of the account. As a matter of good business practice we shall, on receipt of payment, update your Credit File to Satisfied in Full as opposed to Partially Settled as is normal procedure when accepting reduced payments.

 

I am impressed with the “satisfied in full” as many who do make final offers want this, however, I am very nitpicky with their wording, ie Aktiv own file or the actual CRA(s) records (assuming JDW did create a CRA record). Also, there may well be another entry under the previous “owner” recording the default, although AK’s entry would say a “satisfied in full” it would not change the other record (for the same debt) and therefore would not help the credit score at all (it may improve slightly if asked for a clerical instead of computer calculation).

Our offer is made on condition that payment is received by 14th March 2008 and is made simply to try and bring these matters to a satisfactory conclusion. Alternatively we are willing to continue to accept instalments of £11.00 per month. Please note that should you cancel the standing order set up with us, you will have defaulted on the agreement made both orally and in writing by you, to discharge this debt.

 

As long as they have passed the timescales for providing a CCA, your nephew can legally stop paying without him being in default.

In line with our official complaints procedure this letter constitutes the company’s Final Response. A copy of our company complaints procedure is attached for your information. Should you remain dissatisfied with our Final Response you may refer your complaint to the Financial Ombudsman Service and I have enclosed their leaflet ‘Your Complaint and the Ombudsman’ for you information. Should you wish to refer your complaint to the Ombudsman you must do so within 6 months of the date of this final response.

 

We reserve the right to litigate and to produce a copy of this letter to any Court, on the subject of costs.

 

####

 

So my next course of action is to

 

a) cancel the direct debit to Aktiv Kapital,

 

b) I’ve spoken with the Credit Services Assoc, and read them the line “section77… in so far as they are able to” and was told that it was possible that AK were outside of the Assoc’s Code of Conduct and I should raise a complaint with the CSA for them to investigate fully.

 

c) I’m just sorting out the complaint paper work to the FOS,

 

but I’m also considering sending one final letter back to AK along the lines of the template from “make them aktiv runners” http://www.consumeractiongroup.c o.uk/forum/debt-collection-industry/128517-acktiv-kapital-reply-cca.html?highlight=aktiv but will include the following

As far as I can see, it is basically the same CurleyBen letter already sent, just altered slightly as the OP on that thread was issuing it before the CCA time limits were up.

If you want to send anything to AK then just keep it simple. State as it appears there is no CCA the alleged debt is legally unenforceable and therefore no payments will be made. Also having clarified the issue you expect to receive no more letters/calls and require confirmation that they have permanently closed their file (subject to to CCA materialising of course). If they continue to request payment you will then report to FOS.