Aktiv Kapital (GE Capital) Response to CCA

[Slyk]

I was advised to post this here.

 

I've had two responses back to my CCA request from Aktiv Kapital.

 

 

As you can see from the credit agreement, even though page 2 wasn't sent, it appears to fulfill the pescribed terms. However, one item I noticed, I took out PPI with this agreement so why are they pursuing me for this debt?

 

I was made redundant in December 2001 and the repayment schedule (buy now, pay later) was due to commence January 2002. A full year after the agreement and the PPI was taken out. So why hasn't it been honoured?

 

I've noted that GE Capital have been fined over mis-selling PPIs and wondered whether this could be the case for this account?

 

Any way of telling Aktiv to refer this back to the original creditor or should I be seeking professional legal advice?

[Slyk]

Anyone?

[42man]

.....

Edited March 10, 2009 by 42man
corrected by Stephen in post below...

[steven4064]

The 2 letter ar bulls**t - if they bought the rights to collect, tey also bought any liabilities and the mist certainly are acreditor as defined in the CCA 1974.

 

THe loan agreement may be unenforceable. If it contains PPI, it is a multiple agreement under s18 of the CCA 1974. Unfortuantely, it is not clear enough fpr me to tell if it is properly drawn up or not. Can you post a bigger scan?

[42man]

This thread might be useful.... - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within.html#post1845581

[Slyk]

. . . Can you post a bigger scan?

Here you go.

 

http://www.scribd.com/doc/13136822/Ak-Gec-01alg?secret_password=1wnkqy25b6w5ongtmc71

 

If the agreement is enforceable I want them to honour the PPI agreement which would cover the this debt.

Edited March 10, 2009 by Slyk

[steven4064]

OK the PPI part is unenforceable as it doesn't give the total amount of credit, which is a prescribed term. The main loan agreement is otherwise proeprly executed and enforceable.

 

THe creditor can have it one of two ways: either it is a multple agreement but the PPI part is unenforceable OR it is not a multiple agreement and the whole lot is unenforceable. Give them the choice.

Edited March 10, 2009 by steven4064

[Slyk]

Do I have to give them the choice or can I state which is the case? I'm assuming the multi-part agreement would be the best option here?

 

Are there any standard letters that can be sent out to cover this/be modified?

 

If they insist on pursuing this into the courts can I used the PPI contract as a defense that the debt should never have been pursued as the PPI contract was never honoured?

 

Thanks for your help so far!

[steven4064]

Be a bit careful - the PPI contract is not vaild - you can't have it both ways either - two options:

 

1. Don't mention the fact that the contract is invalid but go for their breach of it (ie not honouring it) and go for repayment of payements

 

2. Go with invalid contract and claim back payments

[Slyk]

If I go for 1. does that mean they also wouldn't be able to pursue me for the debt due to the fact that the PPI agreement hasn't been honoured?

 

From what I can tell/vaguely remember is that they tried to wriggle out of it by saying that the PPI contract didn't come into effect until the payment holiday was over. Looking back at it now I'm fairly certain that as soon as I signed the contract then the policy was valid?

 

And what letter should I be using?

 

Cheers

[steven4064]

If I go for 1. does that mean they also wouldn't be able to pursue me for the debt due to the fact that the PPI agreement hasn't been honoured?

No, I don't think so.

 

IMHO, you are better off going with 2 - it is more consistent.

 

THe claim is that the loan agreement is a multiple agreement under s18 of the Consumer Credit Act 1974 because

 

i) the main loan is for fixed-sum, unrestricted-use credit and is a debtor-creditor agreement

 

ii) the PPI part is for fixed-sum, restricted use credit and is a debtor-creditor-supplier agreement.

 

Under s18, the agreement must be treated as 2 seperate agreements. The form of the agreement doesn't matter, but the content does - it msut have the prescribed terms for each agreement.

 

Considering the PPI part, schedule 1 of the Consumer Credit (Agreements) Regulations 1983 says that to be properly executed, a fixed-sum debtor-creditor-supplier agreement must have the following:

 

1. The cash price [of the] services

 

2. (1) The total charge for credit, with a list of its constituent parts

(2) The rate of interest on the credit to be provided under the agreement or, where more than one such rate applies, all the rates in all cases quoted on a per annum basis with details of when each rate applies

(3) A statement explaining how and when interest charges are calculated and applied under the agreement

 

3. The total amount payable

 

4. The timing of repayments to be made under the agreement expressed by reference to one or more of the following--

(a) the dates on which each repayment is to be made;

(b) the frequency and number of the repayments and the date of the first repayment or a statement indicating the manner in which that date will be

determined;

© a statement indicating the manner in which the dates of the repayments will be determined.

 

5. The amount of each repayment to be made under the agreement

 

Clearly, the PPI agreement does not have all of this. It is therfore not properly executed and can therefore only be enforced by court order by virtue of s65 of the CCA 1974.

 

However, the court's power to enforce an agreement under s65 is limited by s127(3). Under this section an agreement can only be enforced if it is signed by the debtor and has the terms prescribed in schedule 6 of the Consumer Credit (Agreements) Regulations 1983.

 

For this type of agreement, schedule 6 gives the prescribed terms as items 1, 4 and 5 in the above list. If it doesn't have both 4 and 5 it may have the rate of interest instead of the one that is missing.

 

However, your agreement doesn't have item 1. It is therefore not enforceable under s65 or at all.

 

You could write a letter summarising this and requesting your repayments back on that basis. There isn't a template letter but have ago from what I have put and post it here for comment before you send it.

 

If they write back and say that s18 does not apply we can then hit them with the alternative I mentioned in post #7