Thames Credit - New Tactic?

[spook]

My sister has received one of the Thames Credit/Aktiv Kapital "out of the blue" letters claiming that she has a debt dating back to 2003.

 

I'm just about to assist her with the usual CCA letter requesting the original credit agreement etc. in order to confirm whether the alleged debt is in fact enforceable and/or statute barred. I'm aware of the usual advice that if the company do not reply/fail to provide the information, she need do nothing as the debt will be unenforceable by the company.

 

However, the difference here is that Thames Credit/Aktiv Kapital have already recorded a default against my sister's Experian credit record in respect of this alleged debt. Therefore, doing nothing is not an option even if the company fail to comply with their disclosure obligations, as she will have to do something to get the offending entry removed from the credit reference agencies' records.

 

Has anyone else had experience of this? Is this a new tactic by our friends at Thames/Aktiv?

 

Any advice much appreciated. Many thanks.

 

S.

[Sabrina470]

Until they have acknowledgement of the debt actually being your sister's are they allowed to do this? I'm not questioning you, just hoping that someone who knows will be able to say whether this is actually legal? I can't believe that they can actually hoik someones details from goodness knows where and assume that they are without doubt the person they are looking for. If they have done this before she has received the letter or as she has just received it surely they are in breach of something?

[Michael Browne]

Are you saying that you have no knowledge of any debt?

[spook]

Correct, no knowledge of any debt, no CCJ, nothing. Completely clear credit reference agency record prior to this latest entry.

[Michael Browne]

Amend to suit:

 

 

 

Dear Sir/Madam

 

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

 

I/we would point out that I/we have no knowledge of any such debt being owed to (insert company name).

 

I am/we are familiar with the Office of Fair Trading Debt Collection Guidance which states that it unfair to send demands for payment to an individual when it is uncertain that they are the debtor in question.

 

I/we would also point out that the OFT say under the Guidance that it is unfair to pursue third parties for payment when they are not liable. In not ceasing collection activity whilst investigating a reasonably queried or disputed debt you are using deceptive/and or unfair methods.

 

Furthermore ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment amounts to physical/psychological harassment.

 

I/we would ask that no further contact be made concerning the above account unless you can provide evidence as to my/our liability for the debt in question.

 

 

I understand that you have registered a default on my credit file in reference to this alleged debt

 

 

I require you to correct this entry forthwith and to cease processing my data beyond that necessary to respond to this complaint. Please note that unless you correct any information recorded on my credit reference I will take further legal action.

 

 

Continued collection activity WILL cause me to complain to the police, and FOS.

 

I/we await your written confirmation that this matter is now closed. Otherwise I will have no option but to make a complaint to the trading standards department and consider informing the OFT of your actions.

 

I/we look forward to your reply.

 

Yours faithfully

[spook]

OK, a quick update.

 

After sending the approved letter giving them the statutory 12 days to provide copies of the executed agreement, statement of account and deed of assignment, Aktiv Kapital have written back today (outside the statutory 12 day period). They state that they have "insufficient information" to be able to comply with the request for documents, and will therefore not be supplying them. They ask to be contacted on a telephone number "to discuss your request and obtain further information".

 

Needless to say, I smell a rat. It seems to me that Aktiv are playing a cynical game, trying to get out of their legal obligation to supply the documents by claiming they are unable to do so due to lack of information on their part, despite already having sufficient information available to them to write letters claiming the money and make an adverse credit reference agency entry against my sister. Surely the onus is on Aktiv to prove the alleged debt by supplying any documentary proof in support, and that it is not for my sister to help them prove it?

 

I strongly suspect that Aktiv cannot provide the documents to prove the debt because they simply don't have them, and they are instead trying to get my sister to contact them in order to draw her into their "system" and trap her with their well-practised call-centre patter into accepting a debt she does not acknowledge and which they cannot prove.

 

My sister is understandably not prepared to engage with Aktiv any further and therefore proposes to send all the correspondence in the matter to the credit reference agency with a covering letter asking them to remove the adverse entry, and copy everything to the local trading standards department asking them to consider prosecution of Aktiv under the CCA for failing to disclose the relevant documents.

 

Any further advice or comments on the above would be much appreciated.

[ScarletPimpernel]

I think your appraisal of the situation is exactly right.

 

In terms of your proposed course of action, the Consumer Credit Act 2006 amended the 1974 Act to remove the summary offence of failing to comply with a s.78(1) request within 12 + 30 days. A creditor or DCA now has just 12 working days to comply until s.78(6) applies. However, the Consumer Protection from Unfair Trading Regulations 2008 creates a raft of new offences relating to unfair and aggressive trading; this includes failing to comply with the law and a code of conduct to which a trader has subscribed - the risible CSA code can now be used against DCAs. OFT, via Trading Standards are the enforcement agency; they can prosecute. Be aware that the regional nature and general under-resourcing of Trading Standards means that you may well need to do most of the work for them, and be persistent and assertive, to obtain a result.

 

In addition, I would be inclined to make a robust formal complaint to Aktiv, quoting the CPUTR and s.78(6) CCA 1974. You are unlikely to get any sort of sensible response, but going through the motions means that you can complain to the Financial Ombudsman Service; again, they are often flaccid as regulators, but you can then complain to your MP.

[spook]

I think your appraisal of the situation is exactly right.

 

In terms of your proposed course of action, the Consumer Credit Act 2006 amended the 1974 Act to remove the summary offence of failing to comply with a s.78(1) request within 12 + 30 days. A creditor or DCA now has just 12 working days to comply until s.78(6) applies. However, the Consumer Protection from Unfair Trading Regulations 2008 creates a raft of new offences relating to unfair and aggressive trading; this includes failing to comply with the law and a code of conduct to which a trader has subscribed - the risible CSA code can now be used against DCAs. OFT, via Trading Standards are the enforcement agency; they can prosecute. Be aware that the regional nature and general under-resourcing of Trading Standards means that you may well need to do most of the work for them, and be persistent and assertive, to obtain a result.

 

In addition, I would be inclined to make a robust formal complaint to Aktiv, quoting the CPUTR and s.78(6) CCA 1974. You are unlikely to get any sort of sensible response, but going through the motions means that you can complain to the Financial Ombudsman Service; again, they are often flaccid as regulators, but you can then complain to your MP.

 

Thanks very much for that ScarletPimpernel.

 

Someone has passed me the following standard letter; would you say that this is appropriate (and legally current enough) to send to AK in the light of your comments? If so, what would you add to it to take into account CPUTR 2008?

 

 

Dear Sir or Madam,

 

 

Account no

 

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

 

 

Thank you for your letter dated ........, the contents of which are noted

 

Your attention is drawn to the fact that this account is subject to a serious dispute. On ......... I requested that ........... supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date ........... have failed to comply with my request. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to .............., nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

 

 

Clearly as no agreement was supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in S.78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

 

To clarify S.61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as ............... become compliant with my request. As ................ are still not in compliance with my request I insist that the following takes place with immediate effect

 

All entries which refer to missed payments be removed from my credit file

All collection activities cease with immediate effect until ............. comply with my request from .date........... or such time as a court makes an enforcement order

In addition, I draw your attention to the Office of Fair Trading’s guidance on Debt Collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

 

I trust this out lines the situation

 

Regards

[rameses_qc]

Wait a minute! These foul bin rummagers have "insufficient information" to send a CCA request? How, then, did they have enough information to record a default?

I think a complaint to the Information Commissioner is long overdue

Make no mistake, though, Thames credit cares not a toss whether they have the right person or not. Just ask Mrs Brazier's family. They hounded that poor woman to her death

[thrubolt]

Good morning all on a wintery Sunday.

AKTIV KAPITAL - God they have chosen a name havn't they, sounds like some neo nazi right wing collection thuggery agency.

I sent off my CCA to them on 22/01/09, got reply to say they were working on it on the 26/01/09 today is 8/02/09 and still nothing - wll if nothing in post on Monday their 1000 year reign in my opinion is coming to an end with a letter telling them that This will be MY finest hour.

[ScarletPimpernel]

I think that the letter above is rather too long, and slightly out of date.

 

I prefer a briefer approach:

 

Dear Sirs

 

On (date) I made a formal request pursuant to s.78(1) of the Consumer Credit Act 1974 in relation to the above account. You have failed to comply within the statutory time limit, or at all. The provisions of s.78(6) of the Act therefore apply. It is noted that you have, despite failing to comply with your legal obligations, registered a default with (CRA). I require this to be removed forthwith.

 

I consider your actions in this matter amount to aggressive and unfair trading as defined by the Consumer Protection from Unfair Trading Regulations 2008. This letter constitutes a formal complaint about your behaviour and I require you to deal with it under the complaint procedure required by the Consumer Credit Act 2006.

 

A Notice pursuant to s.10 of the Data Protection Act 1998 is enclosed; your full response is required within the statutory time limit.

 

Yours etc.

[youoweyoupay]

OK, a quick update.

 

After sending the approved letter giving them the statutory 12 days to provide copies of the executed agreement, statement of account and deed of assignment, Aktiv Kapital have written back today (outside the statutory 12 day period). They state that they have "insufficient information" to be able to comply with the request for documents, and will therefore not be supplying them. They ask to be contacted on a telephone number "to discuss your request and obtain further information".

 

Needless to say, I smell a rat. It seems to me that Aktiv are playing a cynical game, trying to get out of their legal obligation to supply the documents by claiming they are unable to do so due to lack of information on their part, despite already having sufficient information available to them to write letters claiming the money and make an adverse credit reference agency entry against my sister. Surely the onus is on Aktiv to prove the alleged debt by supplying any documentary proof in support, and that it is not for my sister to help them prove it?

 

I strongly suspect that Aktiv cannot provide the documents to prove the debt because they simply don't have them, and they are instead trying to get my sister to contact them in order to draw her into their "system" and trap her with their well-practised call-centre patter into accepting a debt she does not acknowledge and which they cannot prove.

 

My sister is understandably not prepared to engage with Aktiv any further and therefore proposes to send all the correspondence in the matter to the credit reference agency with a covering letter asking them to remove the adverse entry, and copy everything to the local trading standards department asking them to consider prosecution of Aktiv under the CCA for failing to disclose the relevant documents.

 

Any further advice or comments on the above would be much appreciated.

 

Hi,

 

You are wrong in most of what you have written here. I work in the debt collection business and I think someone should actually start to set you people straight. Aktiv Kapital are a DEBT PURCHASER and therefore not the original vendor/supplier/lender - thus under the CCA and OFT Debt Purchase and Debt Collection guidelines they are NOT legally obliged to supply you people with the original agreement/statements, that is the job of the vendor.

 

But as Aktiv Kapital do like work for you as much as they can - if you write them a simple letter requesting all information avaliable under the CCA, enclose a £1 fee (either postal order or cheque) and they will try to obtain all information for you.

 

No matter how many times I read these forums - you all seem to be in the same opinion that these accounts of YOURS are all stolen from some database? Well let me assure you - they are not - they are all purchased legally from the original vendor(s).

 

As for you sister my friend, if you believe she is not the correct person for this account then you need to call up Aktiv Kapital - let them verify all the information and then you can lodge a dispute or complaint with the CRA's and everything will be hunky dory and you can stop slagging off a well respected company.

 

P.S. Before you all start having a go - saying "oh he must work for them" - I don't, so don't get excited. But I am willing to help anyone with their debt problems - I have extensive knowledge of the business.

[Nottsdave]

Youowe,

 

You can help me with my debt please.

 

Send me a blank cheque.

 

Cheers

 

Notts

[cerberusalert]

youoweyoupay I suggest you pull your head from your rectum and take a good look around the wonderful world in which you claim to work in and have knowledge of.

 

Aktiv Kapital are a DEBT PURCHASER and therefore not the original vendor/supplier/lender - thus under the CCA and OFT Debt Purchase and Debt Collection guidelines they are NOT legally obliged to supply you people with the original agreement/statements, that is the job of the vendor.

 

As defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

Edited February 11, 2009 by cerberusalert

[Trampdog123]

Youoweyoupay - people like you make me sick... doling out unwanted chat... you make DCA's sound all lovely and nice and caring - when in fact we ALL know the opposite is true...........

 

DCA's honest my a*se! 8-)

[ScarletPimpernel]

youoweyoupay - it's a shame your 'extensive knowledge' doesn't extend to s.189 of the Consumer Credit Act 1974, which clearly places a duty to produce a copy agreement upon an assignee, who becomes the creditor within the meaning of the Act upon assignment.

 

Of course, there's an interesting discussion to be had about the ethical aspect of purchasing debts without ensuring that they are accompanied by the correct paperwork, but compliance and ethical practice aren't the debt industry's strong points, are they?

 

Finally, thank you for making me smile:

 

But as Aktiv Kapital do like work for you as much as they can - if you write them a simple letter requesting all information avaliable under the CCA, enclose a £1 fee (either postal order or cheque) and they will try to obtain all information for you.

 

Leaving aside the sloppy grammar, I think you'll find that Aktiv Kapital are already in default of a s.78(1) request, but I thank you for providing proof, if proof were needed, of the sort of people we are dealing with.

[PGH7447]

Hi,

 

You are wrong in most of what you have written here. I work in the debt collection business Never Mind and I think someone should actually start to set you people straight. Really is that you then Aktiv Kapital are a DEBT PURCHASER and therefore not the original vendor/supplier/lender - thus under the CCA and OFT Debt Purchase and Debt Collection guidelines they are NOT legally obliged to supply you people with the original agreement/statements, that is the job of the vendor. It is their job to pass on the request, also if they bought the debt then they buy the liabilities that go with it, suggest you get yourself on a CSA course for debt collection phone drones

 

But as Aktiv Kapital do like work for you as much as they can hahaha- if you write them a simple letter requesting all information avaliable under the CCA, enclose a £1 fee (either postal order or cheque) and they will try to obtain all information for you. thats because they have to by LAW

 

No matter how many times I read these forums - you all seem to be in the same opinion that these accounts of YOURS are all stolen from some database? Well let me assure you - they are not - they are all purchased legally from the original vendor(s). at a vastly reduced sum

 

As for you sister my friend, if you believe she is not the correct person for this account then you need to call up Aktiv Kapital - let them verify all the information and then you can lodge a dispute or complaint with the CRA's and everything will be hunky dory and you can stop slagging off a well respected company. well respected by whom?

 

P.S. Before you all start having a go - saying "oh he must work for them" - I don't, so don't get excited. But I am willing to help anyone with their debt problems - I have extensive knowledge of the business.

 

Good in that case offer some constructive advice and dont try and defend these agencies, you are trying to preach to the enlightened, people who have for years suffered at the hands of these cretinous companies and their total disregard for the lawful procedures laid down.

[fiftypence]

On the strength of that first post I'm taking a wild guess that most (sorry ALL) Caggers won't be calling on the 'extensive knowledge' youoweyoupay has of the industry and that youoweyoupay won't get into double figures for their number of posts

[dannyboy660]

Please don't let that post distract from the original flow of the thread. That's why turds post nonsense like that - red herrings.

[Fred Bassett]

Why is that people from the Debt Collection Industry always promise to help by suggesting that you ring the ever-so-helpful call centre staff who will sort it all out in a jiffy. The best advice remains: NEVER ring them.

 

Fred

[spook]

Hi,

 

You are wrong in most of what you have written here. I work in the debt collection business and I think someone should actually start to set you people straight. Aktiv Kapital are a DEBT PURCHASER and therefore not the original vendor/supplier/lender - thus under the CCA and OFT Debt Purchase and Debt Collection guidelines they are NOT legally obliged to supply you people with the original agreement/statements, that is the job of the vendor.

 

But as Aktiv Kapital do like work for you as much as they can - if you write them a simple letter requesting all information avaliable under the CCA, enclose a £1 fee (either postal order or cheque) and they will try to obtain all information for you.

 

No matter how many times I read these forums - you all seem to be in the same opinion that these accounts of YOURS are all stolen from some database? Well let me assure you - they are not - they are all purchased legally from the original vendor(s).

 

As for you sister my friend, if you believe she is not the correct person for this account then you need to call up Aktiv Kapital - let them verify all the information and then you can lodge a dispute or complaint with the CRA's and everything will be hunky dory and you can stop slagging off a well respected company.

 

P.S. Before you all start having a go - saying "oh he must work for them" - I don't, so don't get excited. But I am willing to help anyone with their debt problems - I have extensive knowledge of the business.

 

You need to crawl back under the rock marked "Aktiv Kapital" that you came from, mate.

 

Hope AK are paying you well for trolling these forums.

[eeeezzzyy]

I have got the same problem with Aktiv Kapital at the moment, regarding an Account with erm...Tiny Computers...all well and great except, ive never owned a computer from Tiny...didnt they go bust in about 1900 ??..Have CCA'd them, and low and behold getting the bog standard "Please phone us to discuss this matter" letters every couple of weeks !!

[missdpd]

youowe.............i found your post rather patronising to say the least..............you people!!!!!!! god Marx would have loved you!!!!

 

There is, however, one good word i can say about you DCA's, without your input, CAG would probably never have been formed and for that I would just like to say a huge big thank you for making it happen

[thrubolt]

Just tell them all to take a hike - what they gonna do at the end of the day - keep sending scare tactics cause they are limited to what they can do - they run out of ideas - the reason they dont pass you back to original creditors is because they are stuck with the debt they aquired and would be happy to recoup the costs they incurred by taking it on. I have more important things in my life than kow towing to these prats - i have had threats in phone calls and all i do is say can i take your name because if you keep talking to me like that it is only a 4 hour drive to where you work and i shall sort it out with you face to face and i know who will be standing at the end of it so watch your mouth laddie.

[sosumi]

I have got the same problem with Aktiv Kapital at the moment, regarding an Account with erm...Tiny Computers...all well and great except, ive never owned a computer from Tiny...didnt they go bust in about 1900 ??..Have CCA'd them, and low and behold getting the bog standard "Please phone us to discuss this matter" letters every couple of weeks !!

Hi eeeezzzy

When did you send the CCA, and did you send it recorded delivery/special delivery? If you have proof of posting, Aktiv Kapital have 12+2 days to provide the agreement.

As already stated on this thread, do not EVER phone them.