Aktiv Kapital claim CCA exemption!!!!!

[cornishbear]

Hi

Have sent a request to the lovely Aktiv Kapital for a CCA request for a member of my family who is too ill to sort things themselves.

 

Recived the following reply this morning.

 

"From your request under the Consumer Credit Act 1974 we can confirm that we are currently in the process of requesting the relevant documnetation on ******** behalf from the original creditor.

 

We would point out that, as we are not the original creditor the ACT allows 12 working days plus 30 further days before we are entered into a default situation. We believe we are exempt from this due to the processes sometimes required in order to obtain the documentation from the original creditor. Once we are in recipt blah blah blah.................."

 

 

Are they exempt?? i think not perhaps they need more time for a cut and paste job or is that just me being spitefull????

 

Anyway i take it their belief in some kind of exemption is all in their imagination???

 

Any words of guidance gratfully recived!

 

Thanks

 

Cornishbear

[maroondevo52]

plus 30 further days before we are entered into a default situation.

 

You'd think someone would have told them that bit's been dropped

 

Think they are talking tosh

 

See what they hit you with next.

 

Regards.

 

Scott.

[cerberusalert]

This is the relevant part;

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor 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.

 

Another thing that they have got wrong....the 30 days, up until May last year they commited an offence if they failed to produce the CCA after the prescribed 12 days. That has since been removed from the Act, so in essence they have the 12 days before you can declare the debt in dispute.

 

It's nice to see their professionalism in all its glory.

[DonkeyB]

Fancy, a DCA sending you a misleading document! Whatever next? You should sharpen them up a bit by complaining about this to your local trading standards and the OFT.

[42man]

Especially as their governing body says they need to comply !!!

Have a read - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/168547-aktiv-krapital-laughable-reply.html

[42man]

AAAAaaannnd on that thread is a reply courtesy of Scarlet Pimpernel...

 

Dear Oxygen Thieves

 

I refer to your letter dated (date) in which you confirm that you are unable to comply with my formal request pursuant to s.78(1) of the Consumer Credit Act 1974. However, despite being in default of my request, you have continued to make unlawful demands for payment contrary to s.78(6) of the CCA 1974 and the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

 

I note what you say about the Credit Services Association, and draw your attention to the first paragraph of its Code, which states that members must act lawfully at all times. Furthermore, under the CPUTR failing to comply with a code of conduct to which you have subscribed is unfair trading.

 

In the circumstances, I will not enter into further correspondence with you, and any further unlawful demands or contact will be viewed as harassment and reported to the appropriate enforcement agency.

 

Finally, as you have failed to comply with my request, I require you to return the £1.00 fee without delay.

 

Yours etc.

[Pinky69]

No wonder they have just posted a loss of £40 million - if they had a corporate brain they would be dangerous.

[cornishbear]

Ok it gets better on the same day i recived the CCA excuses they sent another letter offering a full and final settlement at 70% of the debt if contacted within 10 days lol! what a bunch of f***tards!

[cerberusalert]

It's far better to wait 11 days and get a 100% discount.

[vjohn82]

I had exactly the same letter... word for word...

 

Basically fired off a s. 189 letter to them. Here's my example which you are of course free to make use of an amend to suit your own circumstances:

 

 

I wrote to you on the 27 February 2009 requesting a copy of the credit agreement as per the requirements by the Consumer Credit Act 1974 s. 77/78. You replied on 5 March 2009 stating that:

 

“We believe we are exempt from this due to the processes sometimes required in order to obtain the documentation from the original creditor.”

 

As you have purchased the alleged debt under s. 189 of the Consumer Credit Act 1974 you are classified as having purchased both the rights and duties of the original agreement. Therefore why you believe you are somehow exempt from statute law is, in my opinion, a false representation of your legal position and noted for future reference should a complaint be registered with the Office of Fair Trading. Indeed in the case of an absolute assignment, you are a creditor 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.

You have also stated:

“...the Act allows 12 working days plus 30 further days before we are entered into a default situation.”

 

I must inform you that s.77 4(a) and s.78 6(a) state that if the creditor under an agreement fails to comply with subsection 1 (relating to a request for the executed credit agreement) he is not entitled, while the default continues, to enforce the agreement & sections.77. 4 (b) and 78. 6 (b), relating the period beyond the initial default, were repealed by The Consumer Protection from Unfair Trading Regulations 2008.

 

In addition, The Office of Fair Trading Post-Contract Information Requirements s8.1/8.5 states 12 working days for responding to a request for a copy of the executed credit agreement, without the provision for postal delays, and this guidance can be found here:

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft1002.pdf

 

The date you received the CCA request was 2 March 2009 via recorded delivery. This means the 12 day period ends on the 17 March 2009. I will allow 2 further working days for the information to reach me which means that on the 19 March 2009 I will be writing to you again regarding this account if you have not sent out the executed agreement.

 

In addition, upon the expiry of the 12 working day deadline the account is classed as “in default” which means you are required to remove information from my credit file and, under Section 10 and Section 12 of the Data Protection Act 1998, to cease and desist all manual and automatic processing of my data within your company and any other company within your group.

 

I sent that on the 9th of March... and they replied two days later with an offer of a 70% settlement...

 

THEN

 

...they sent out their "credit agreement" which they stated fulfilled my request in full and expect the full balance to be paid within 7 days.

 

Trouble was... the CA was an application form... so another letter goes back to them similar to the one above.

[sick of thames credit]

cornish bear & vjohn, quite interesting i received the 70% letter this week aswell, only difference is that I had not yet posted my CCA request off.

 

wonder if they have offered this out to every account who is disputing ?

[vjohn82]

wonder if they have offered this out to every account who is disputing ?

 

More than likely... I will find out tommorrow I imagine because one CCA request for one of my wifes disputed debts is with Aktiv Krapital (I actually spelled it like that on one of my letters to them). If they complain I will just say it's a typo!

 

Anyway... the 70% offer is clearly a last ditch attempt as they will rarely offer lower (I have never seen it) so hold tight and wait for inevitable to happen (as in... they can't find it and will send an application form).

[cornishbear]

Thanks for the help guys it's appriciated anyway tomorow is D Day so lets see what happens letters ready for all eventualities!!

[vjohn82]

My D-Day is the 19th... so I either expect a barrage of post between now and then or complete silence. If I hear nothing then I will suspect that they have absolutely nothing to go on by way of an agreement... then I will fire off another letter asking them to remove the defaults from my CF if they cannot substantiate the debt...

 

"I mean it's only fair Rodders"

[cornishbear]

Hi Everyone back again a couple more letters exchanged since my last post. The 12 days past and no agreement!! Letter sent off indicating what their failure entails.

Letter back today including the following gems!

 

"We can confirm that we have been in contact with the original creditor (xxxxxxxxxx Bank) who has advised unfourtunately (for Aktiv Krapital lol!!) due to the age of the account no documentation is available."

 

"From our records it is evident that regular monthly repayments have been maintained on account by Mr xxxxxxxx from xxxx 2003 to xxxx 2007 the payments total £xxxx and act as admission of his liability towards the account"

 

the please contact blah blah 7 days blah blah collection department etc etc.

 

The way i read it there is some serious straw clutching going on and (legally) they dont have a leg to stand on.

 

Thoughts please? I wouldn't mind going for a return of the monies already paid has anyone tryed this?

 

Cheers

CB

[lickthewallfatboy]

"From our records it is evident that regular monthly repayments have been maintained on account by Mr xxxxxxxx from xxxx 2003 to xxxx 2007 the payments total £xxxx and act as admission of his liability towards the account"

 

that's crap for a kick-off

 

the please contact blah blah 7 days blah blah collection department etc etc.

 

yeah,right

The way i read it there is some serious straw clutching going on and (legally) they dont have a leg to stand on.

 

correct

 

Thoughts please? I wouldn't mind going for a return of the monies already paid has anyone tryed this?

 

personally wouldn't try it......you've got them beaten.I wouldn't push my luck,but that's just me

[vjohn82]

Ok...

 

No enforceable credit agreement... no debt.

 

You "could" request that the monies are returned to you but I would just ask them to write off the remaining balance and consider it a case won.

 

It's nice to get money back but a judge would not unjustly enrich someone if they have already taken value of a contract i.e. you spent the money... paid some back... but then claimed back what you paid. It doesn't make legal sense unless you have been prejudiced in some way.

[Pinky69]

No enforceable agreement DOES NOT mean no debt. You still owe the money but the agreement is not enforceable in court. You don't have to pay the debt but you would be hard pushed to get what you have paid back.

[harrassed senior]

Hi

We would point out that, as we are not the original creditor the ACT allows 12 working days plus 30 further days before we are entered into a default situation. We believe we are exempt from this due to the processes sometimes required in order to obtain the documentation from the original creditor. Once we are in recipt blah blah blah.................."

 

 

Are they exempt?? i think not perhaps they need more time for a cut and paste job or is that just me being spitefull????

 

Anyway i take it their belief in some kind of exemption is all in their imagination???

 

Any words of guidance gratfully recived!

 

Thanks

 

Cornishbear

 

Just a quick thought, would they quote this if you were requesting the removal of your data they have placed with the CRA's?

[vjohn82]

No enforceable agreement DOES NOT mean no debt. You still owe the money but the agreement is not enforceable in court. You don't have to pay the debt but you would be hard pushed to get what you have paid back.

 

 

Pinky69

 

That's simply not true in my experience. I have two debts where the CCA was unenforceable and the debt was written off because of this.

[harrassed senior]

I have had a debt 'written off' by the OC only to reappear several months' later with a DCA. I think that just means that they can claim tax relief for their loss!, but they still sell it on!

[vjohn82]

I'm sure that is against OFT guidelines for them to do that?

[Pinky69]

You were lucky. Most debts that are unenforceable are not written off, I can assure you. You can read for yourself the huge number of debts that are passed from DCA to DCA in spite of being unenforceable and those that are pursued even after they are Statute Barred. The money is still owed - you got it from them - they simply cannot take court action to make you pay.