OFT Response on Aktif Kapital

[NORNIRONGIRL08]

I know I have AK off my back but just got this from OFT re complaint I had made

 

 

Direct line

(020) 7211 8000

Our ref

Epic/Enq/E/33776

Fax

(020) 7211 8877

Date

23 May 2008

Email

[email protected]

Dear Norn Iron Girl

Consumer Credit Act 1974 (the Act)

Complaint Against: Aktiv Kapital Limited

Licence No: 510166

Thank you for your letter, permission to disclose slip and supporting documentations received on 10 April 2008, emails received on 7 April and 14 April 2008. I apologise for the delay in responding.

I am very sorry to hear about the difficulties you have been experiencing however, the OFT has no authority to become involved in disputes between consumers and traders and so we cannot offer you any direct help with the complaint or advise you directly in this matter. Our role is to protect the collective interests of consumers.

The Consumer Credit Act 1974 (the Act) establishes a licensing system to protect the interests of consumers in the credit area. If a business wishes to undertake the collection of debts that arise from consumer credit agreements then the Act states that they are required to hold a consumer credit licence; this is issued by the OFT.

Aktiv Kapital Limited does hold a consumer credit licence. Under the Act, the OFT has a duty to consider the fitness of all traders who hold consumer credit licences.

In considering fitness we take into account whether a business has engaged in improper business practices. Where we receive complaints about the business practices of licensees, we investigate them and where appropriate we take enforcement action; that action depends on the evidence and circumstances. Action the OFT can take includes revoking, refusing or suspending a licence; or placing conduct requirements on the licence of the company or business in question (failure to comply with a conduct requirement can result in a financial penalty being levied).

The OFT has issued guidance to consumer credit licence holders engaged in the debt collection industry. The guidance is intended to ensure that debt collectors treat debtors fairly. Non-compliance with this guidance will call into question the fitness of licence holders and applicants. You can view our guidance at: http://www.oft.gov.uk/advice_and_resources/resource_base/legal/cca/debt-collection

As you are aware, the general effects of sections 77-79 requires the creditor/owner (in the case of a hire agreement) under an agreement for (fixed-sum credit, running account credit and hire agreement) to provide the debtor/hirer with a copy of the executed agreement and a statement of account on request.

If a creditor/owner fails to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all. This prevents enforcement with or without a court order. If a default lasts for a month (for example a calendar month) it constitutes an offence. We understand your concerns in this matter but please do remember however that once the creditor/owner complies with the request albeit out of time, he may once again enforce the agreement.

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when each is/was due). However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

We note your concerns that in the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it is as unfair practice under section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.

I have noted the details of your complaint, and we will consider this alongside any other complaints we have received with a view to any licensing action we may decide to take.

Should you require specialist, face-to-face assistance, or intervention, you may wish to seek legal advice either through a local Citizens' Advice Bureau or directly from a legal adviser.

The Financial Ombudsman Service (FOS) can help with most complaints about consumer-credit products and services if the consumer has failed to satisfactorily resolve the matter directly with the financial institution itself. FOS can be contacted at: The Financial Ombudsman Service, South Quay Plaza, 183 Marsh Wall, London, E14 9SR; telephone number, 0845 080 1800, or www.financial-ombudsman.org.uk.

Thank you again for writing to us and bringing this matter to our attention.

Yours sincerely

Enquiries and Reporting Centre

Corporate Services

 

 

All communications sent to or from the OFT are subject to recording and/or monitoring in accordance with relevant legislation. This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you are not an intended recipient, please notify [email protected] immediately.

 

The Office of Fair Trading

Fleetbank House, 2-6 Salisbury Square, London EC4Y 8JX

Switchboard (020) 7211 8000

Web Site: The Office of Fair Trading: making markets work well for consumers

 

This footnote also confirms that this email message has been swept

for the presence of computer viruses.

********************************************************************************

The original of this email was scanned for viruses by the Government Secure Intranet virus scanning service supplied by Cable&Wireless in partnership with MessageLabs. (CCTM Certificate Number 2007/11/0032.) On leaving the GSi this email was certified virus free.

Communications via the GSi may be automatically logged, monitored and/or recorded for legal purposes.

[Having_A_Knightmare]

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement.

 

This is the first time OFT have mentioned the T&C.

Did it come by email or letter as It is worth keeping to send to creditors?

 

HAK

[creditcardmug]

If a creditor/owner fails to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all. This prevents enforcement with or without a court order.

 

hmmm.... interesting, does that mean forever?

 

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided.

 

This is ambiguous, appears to mean that they can just supply a copy of the current t&cs, without your name/address/signature/date, how is that proof of a debt??

 

Anyone else?

 

[paulwlton]

This is incorrect they have to supply the name and address.

[creditcardmug]

Yes, but the OFT are saying not?

[Guest forgottenone]

Yeah, I read that earlier and thought 'what??'

[Guest forgottenone]

So, if they are saying that, no wonder so many DCA's target people who the debt doesn't belong to. Without a name/address/signature. How could it be bound to that person legally? Someone could run up to to you in the street, then, and say a debt was yours? How could you prove otherwise unless it had any of those details on it? Even though it wasn't. Unless I misunderstood what they mean there or it's a 'typing error'.

 

Apologies if I got any of the above wrong.

[cashins]

Hi

 

I've just had an arguement with T/S about a CCA that is illegible - their reply ammounts to 'but you can see it's an agreement'.

 

No great suprise considering the contents of the OFT letter you have posted. It's no wonder the 'authorities' are a laughing stock within the Finance industry.

 

David

[Pinky69]

If there was no name and address on it, it could pertain to anyone - this is nonsense and the requirements are all outlined in the Consumer Regulations (Agreements) Act 1983. Basically the OFT won't get involved in individual complaints and since they were set up to ensure Fair Trading I wonder how they can do so if they aren't involved when trading is not only unfair but illegal. How can they decide if a company is fit to hold a licence if they won't hear complaints about it? Trading Standards are a hit and miss depending on where you live and the FOS will only take on cases that involve more than not sending a copy of a credit agreement on request. This is why banks and DCA's break the law with impunity - because they know none of the supposed regulatory bodies do anything to stop them. Sometimes the only way to do so is court.

[paulwlton]

Yes, but the OFT are saying not?

 

I can assure you the OFT have took advice from their lawyers on this matter and have confirmed to myself and certain media that the name and address must be supplied.

[Guest forgottenone]

Talking of FOS ... advised to phone them the other day about telephone calls from DCA's frequently and ... well, they came back and told me they saw nothing wrong in them phoning like that as I owed them money. Completely the opposite advice of what someone had told me they would probably say along the lines of 'you should write to them, asking them to have only one point of contact being in writing, not phone calls under Data Protection ... and they have so many weeks to comply'.

 

Was a bit gobsmacked, TBH.

[fermi]

I've seen most of that email/letter before. It looks to be a standard reply now.

[NORNIRONGIRL08]

Hi all

 

This was an e mail response I got from OFT as I had informed them of AK wqffle about them not being the original creditor nonsense and their non obligation to suppley the Credit Agreement.

[Having_A_Knightmare]

This prevents enforcement with or without a court order

 

Is this also correct?

 

As I have a C/O and I am paying £5.00 per month. I have no intention of ever selling my house so if I stop paying will save me £60 a year.

 

HAK

[NORNIRONGIRL08]

Hi

 

Did anyone get a chance to check if the bit about not having to provide the debtors name and address was misinformation on the reply I got from the OFT?

 

cheers

[foolishgirl]

I had a ccj made against me a couple of years ago (through my own ignorance & before I found this site) & have been making payments to creditor ever since in accordance with the court order. I have now discovered that no executed copy of a cca exists. Does this OFT statement mean that a warrant cannot be applied for on this ccj as the debt was never legally enforceable even though the court issued the ccj? Can I stop paying without finding baliffs at my door? Huh, I doubt it. Can someone clarify please?

[rameses_qc]

You would need to have the CCJ set aside, on the grounds that the debt was unenforceable. You would have to prove that. (on the balance of probabilities). However, you would be struggling, as you did not contest the CCJ in the first place. As you are paying as ordered, you MUSN'T stop doing so.

[rameses_qc]

OFT never do anything about anything. They have never, to my knowledge, threatened to or actually revoked a licence. DCAs are doing what the hell they like, as there is no one with the balls to stop them. I thought the FOS would be a little better, but they are just as useless. The DCAs work for a lot of money men (Banks etc) and they will always prevail over the consumer

[foolishgirl]

Just as I thought Rameses, I had no intention of stopping paying - this OFT letter gives food for thought though?! Can you imagine the Judiciary's faces if they thought OFT was above/making/overuling the laws? BTW I share your realism/cynicism re. OFT & FOS; motto - as with almost everything in this life, if you want a job doing, do it yourself.

[Allwood]

Just listened to money box and apparently a bank can call people up to 7 or 8 times as day would be OK by them and it is only a court to determined whether it is harassment :-?

 

BBC NEWS | Business | Your Money

[cashins]

This prevents enforcement with or without a court order Is this also correct?

 

 

Yes and no.

 

Legally you can stop paying if a CCA is not provided, however, if it goes to court and they show up with a legally enforceable agreement on the day then the court is likely just to accept the situation. You will have a problem.

 

David