Cap1 & CCA return

[noomill060]

They would need to produce the original in Court if challenged by you to prove the debt.

 

You now know that this was destroyed long ago and that they wouldnt be able to, so a court would be precluded from issuing an enforcement order under s.127(3) CCA 1974.

[noomill060]

So yes, they can pursue you for the alleged debt, but equally you can tell them to naff off or take you to court,

 

(where a highly respected member of the judiciary, no doubt, would tell them something similar!)

[shane5408]

So yes, they can pursue you for the alleged debt, but equally you can tell them to naff off or take you to court,

 

(where a highly respected member of the judiciary, no doubt, would tell them something similar!)

 

 

agreed, this policy of littlewoods is nothing to worry about, in fact it benefits the debtor as by littlewoods own admission the original agreement no longer exists!

[MoonHawk]

Hi Surprise,

 

Did they write the debt off or just say they will not pusue it? They are not the same thing. Unless they specifically confirm the account is as 0 balance, then the debt is still there.

 

They can not 'get rid of the original'. A copy scanned or otherwise is not proof as it can be doctored.

 

It satisfies the TS because they have complied with s78 and provided a copy. So they can now pursue the debt. But unlikely that will be accepted by the court.

 

If they write to you pursuing the debt, you can write back to them and ask to see the original as you do not recall signing one and would like to verify the copy is genuine. Say that you understand that they can not send you it and you are willing to go to their offices to peruse the alleged agreement.

 

They might in all probability not take you to court but keep chasing and placing markers on your credit file.

 

Best Wishes

MoonHawk

[shane5408]

welcome back shane

 

thanks!

[Peterbard]

HI

It all came flooding back .I remember the land argument scenario and the fact that it was debunked.

 

No the reason we came up was the definition of creditor in section 189 and 145(6)(a)(b)and (7) see below

 

145(6) It is not debt-adjusting, debt-counselling or debt-collecting for a person to do anything under an agreement if.

 

(a) he is the creditor or owner under the agreement, otherwise than by virtue of an assignment, or if

 

(b) he is the creditor or owner under the agreement by virtue of an

assignment made in connection with the transfer to the assignee of any

business other than a debt-collecting business.

 

And of course the definition mentioned by them in 145(7);

 

(7) Subject to section 146(6), debt-collecting is the taking of steps to procure payment of debts due under consumer credit agreements or consumer hire agreements.

 

In other word the creditor can not be the debt collector. So the debt collector cannot be the creditor unless the agreent is assigned as per 145(6)b.

 

So the definition of Creditor in 189 does not apply to the debt collector.

 

I think that’s the way the logic went.

 

However

The defence is simple

Use the OFT Debt Guideline rules.

 

Send a letter quoting your request has been sent to the original debtor and under section12.8 (k) :

That they must cease collection activity whilst investigating a reasonably queried and

disputed debt. is contrary to their own guidelines and the debt will remain in dispute until the lawfully requested section 78 as been complied with.

After 12 days the agreement will be in default so the agreement will be unforceable and so would the debt,

 

The really worrying thing aout this whole thing is that this came from the Trading Standard. It would seem that thaey have gotten off the fence and are now actively on the side of the creditor

 

it would have been easy for the to say you have to send the request o the creditor in this instance but don’t worry because while it is being done the debt will be in dispute so the DCA can take no action, but they didn’t chose to instead the sided with the creditor IMO and tried to brow beat the creditor into believing he had no option but to give up.

What is going on?

 

 

Best regards

Peter

[Peterbard]

hI

And theier is also this which may be of use

 

186 Agreement with more than one creditor or owner

Where an actual or prospective regulated agreement has two or more creditors or owners, anything required by or under this Act to be done to, or in relation to, or by, the creditor or owner shall be effective if done to, or in relation to, or by, any one of them.

 

Regards

Peter

[conar686]

To clarify the law, if the debt collector is acting on behalf of the creditor or owner, an agency relationship exists, and they must forward the request to the creditor "forthwith". This is a contractual term implied by the good old CCA 1974.

 

In this case, Tom, who commits the offence the DCA or the OC. What my TS are saying I think is that AK has not committed an offence as they are the DCA and they are not pre-disposed to take action.

 

However what they have forgotten is AK bought the debts and are therefore the 'creditor'. I think this another example of TS not wanting to take action.

 

I'm going to respond with some of the points made above & remind them that AK own the debt and see where this goes.

 

Even more reason for a dedicated TS/OFT thread so we can track these errors centrally.

[conar686]

In other word the creditor can not be the debt collector. So the debt collector cannot be the creditor. So the definition of Creditor in 189 does not apply to the debt collector. I think that’s the way the logic went.

 

This is surely a flawed arguement - it lets all DCAs off the hook, the criminal offence is committed by the OC. All DCAs are guilty of is breaching OFT guidlelines for pursuing accounts in dispute - this will stop them someone please tell me it is not so:!:.

[conar686]

Local TS response to my mail of last night stating some of the points raised above and that as AK own the debt they are the creditor

 

Before sending my e-mail to you yesterday, I had lengthy discussions with the officers in our Fair Trading Section who enforce the Consumer Credit Act and those are our conclusions.

As I have already stated, if you were to ask the original creditor for a copy of your agreement and not get a response within the statutory period, then that is a matter which I would pass on to the local trading standards service for their consideration. Unless and until that is the case, we can proceed no further.

 

Sent a response asking why they think AK are not the creditors - predictably they are siding with AKs usual argument.

 

Aktiv-Kapital own the debts, not the accounts, they have not taken on board the rights and responsibilities of the original contract, they are purely collecting the debt and that is as far as their involvement in the matter goes: they do have to comply with the CCA but are not obliged to provide a copy of the original agreement as they are not your creditor, i.e the person who originally provided you with a financial accommodation.

 

Anyone like to take a stab at a rebuttal

[Peterbard]

This is surely a flawed arguement - it lets all DCAs off the hook, the criminal offence is committed by the OC. All DCAs are guilty of is breaching OFT guidlelines for pursuing accounts in dispute - this will stop them someone please tell me it is not so:!:.

 

Hi Maybe it is but isn't mine it is the consumer credit acts.

 

Peter

[shane5408]

HI

It all came flooding back .I remember the land argument scenario and the fact that it was debunked.

 

No the reason we came up was the definition of creditor in section 189 and 145(6)(a)(b)and (7) see below

 

145(6) It is not debt-adjusting, debt-counselling or debt-collecting for a person to do anything under an agreement if.

 

(a) he is the creditor or owner under the agreement, otherwise than by virtue of an assignment, or if

 

(b) he is the creditor or owner under the agreement by virtue of an

assignment made in connection with the transfer to the assignee of any

business other than a debt-collecting business.

 

And of course the definition mentioned by them in 145(7);

 

(7) Subject to section 146(6), debt-collecting is the taking of steps to procure payment of debts due under consumer credit agreements or consumer hire agreements.

 

In other word the creditor can not be the debt collector. So the debt collector cannot be the creditor.

 

So the definition of Creditor in 189 does not apply to the debt collector.

 

I think that’s the way the logic went.

 

However

The defence is simple

Use the OFT Debt Guideline rules.

 

Send a letter quoting your request has been sent to the original debtor and under section12.8 (k) :

That they must cease collection activity whilst investigating a reasonably queried and

disputed debt. is contrary to their own guidelines and the debt will remain in dispute until the lawfully requested section 78 as been complied with.

After 12 days the agreement will be in default so the agreement will be unforceable and so would the debt,

 

The really worrying thing aout this whole thing is that this came from the Trading Standard. It would seem that thaey have gotten off the fence and are now actively on the side of the creditor

 

it would have been easy for the to say you have to send the request o the creditor in this instance but don’t worry because while it is being done the debt will be in dispute so the DCA can take no action, but they didn’t chose to instead the sided with the creditor IMO and tried to brow beat the creditor into believing he had no option but to give up.

What is going on?

 

 

Best regards

Peter

 

 

this is slightly worrying because 'the law' in the CCA s 189 + 145, 146 seems to be on the DCA's side yet for the debtor to try and defend themselves they must rely on mee guidelines issued by the OFt. Is there no point of law applicable that contradicts the acts of a rash dca acting in this manner?

 

regards,

shane

 

this reminds me of the old argument of an account being in default, oft debt collecting guidelines stipulate that no further action should be taken by the creditor but there's no point of law to back that up

[conar686]

Hi Maybe it is but isn't mine it is the consumer credit acts. Peter

 

Didn't mean to imply it did Peter - sincere apologies if it came accross like that - oh great one.

 

I'm sure someone has put the s136 LoP arguement to bed but I can't locate the thread it was in. Anybody help?

[Peterbard]

Local TS response to my mail of last night stating some of the points raised above and that as AK own the debt they are the creditor

 

 

 

Sent a response asking why they think AK are not the creditors - predictably they are siding with AKs usual argument.

 

 

 

Anyone like to take a stab at a rebuttal

 

Hi

I don't understand what i the problem with sending the request to the orriginal creditor f they default the agreement is unenforceable anyway and so is the debt.

 

Peter

[Peterbard]

this is slightly worrying because 'the law' in the CCA s 189 + 145, 146 seems to be on the DCA's side yet for the debtor to try and defend themselves they must rely on mee guidelines issued by the OFt. Is there no point of law applicable that contradicts the acts of a rash dca acting in this manner?

 

regards,

shane

 

this reminds me of the old argument of an account being in default, oft debt collecting guidelines stipulate that no further action should be taken by the creditor but there's no point of law to back that up

 

Hi Shane

 

At one time I would have agee with you but kooking at the OFT/TS track record of enforceing legislation over the salst six months i thnk it may be time to use their own guidleines on them and then let them try and wriggle out of enforcement.

I am coming to the same opinion about the ICO and enforcement of the DPA1998.

 

Best regards

Peter

Regards

Peter

[shane5408]

Hi Shane

 

At one time I would have agee with you but kooking at the OFT/TS track record of enforceing legislation over the salst six months i thnk it may be time to use their own guidleines on them and then let them try and wriggle out of enforcement.

I am coming to the same opinion about the Information Commissioners Office and enforcement of the DPA1998.

 

Best regards

Peter

Regards

Peter

 

well its about time they did so!

 

my opinion may be rather jaded on this subject due to somewhat less than helpful advice from the OFT, TS, Banking Code standards board to name but a few from past experiences, the only organisation that has been some help to me and people i've helped with their debts seems to be lacors, it will be interesting to see what stance the ico take now after lacors officially notified them they don't agree with some of their conclusions with regards to defaults, etc etc.

[conar686]

Hi

I don't understand what i the problem with sending the request to the orriginal creditor f they default the agreement is unenforceable anyway and so is the debt. Peter

 

I've been in touch with both Peter, way back. They both stated that AK now own the accounts & I should get in touch with them.

 

Talk about self licking lollipops & catch 22.

 

I'll CCA both again and state that this request has come from my local trading standards at least this will maybe get a swift response. In the meantime our best legal minds may want to turn their minds to closing this particular door.

[Peterbard]

I've been in touch with both Peter, way back. They both stated that AK now own the accounts & I should get in touch with them.

 

Talk about self licking lollipops & catch 22.

 

I'll CCA both again and state that this request has come from my local trading standards at least this will maybe get a swift response. In the meantime our best legal minds may want to turn their minds to closing this particular door.

 

Hi well you now have it in black and white from TS so I can't se how the orriginal creditor can opt out of the responsibility if they say they have assigned the agrement rather than just sold the debt to a debt collection agency ask or sar them for the notice of assignment if they have then according to the act the DCA become liable to prduce.

If heir is a note on your credit file also ask them who is responsible for the credit processing on the sold debt, and remind them that if the debt has ben sold to the new company and they have not taken on responsibilities of thet account" then the ballance on your file should be zero or should be removed as you no longer owe them any money.

As per ICO guidlines and the DPA which requires the information on your file to be current, which of course would be impossible if the person handling the debt was not involved in processing the data.

 

Best regards

Peter

[debt_mountain]

....damaged by the fact that the debt can't be assigned if it is unenforceable.....

 

Can you point me to where this is stated? It would be a great bit of backup for my looming Cabot case management meeting.

 

EDITED:-

 

 

Read further on and found the answer.

[MoonHawk]

The main difficulty is in knowing who the resposibility actually does lie with. That is all determined by the deeds of assignment, but it seems that TS is just taking the word of AK in this. Maybe you can ask for certain clarification by asking TS to look at the deeds of assignment and check the nature of the transfer.

 

Best Wishes

MoonHawk

[conar686]

The main difficulty is in knowing who the resposibility actually does lie with. That is all determined by the deeds of assignment, but it seems that TS is just taking the word of AK in this. Maybe you can ask for certain clarification by asking TS to look at the deeds of assignment and check the nature of the transfer.

 

Best Wishes

MoonHawk

 

Just done that MH also asked them to have AK remove the default from my credit report. They can't have it both ways.

 

We still need an aswer as to who is responsible when accounts aer sold on, who do we write to?

[MoonHawk]

We still need an aswer as to who is responsible when accounts aer sold on, who do we write to?

 

It depends on the nature of the transfer, and if it was a full legal tranfer of all rights and duties or just the debt. I have just tried to get clarification from the original OC about AK, to see if they are telling the truth about the assignment.

 

Best Wishes

MoonHawk

[conar686]

It depends on the nature of the transfer, and if it was a full legal tranfer of all rights and duties or just the debt. I have just tried to get clarification from the original OC about AK, to see if they are telling the truth about the assignment.

 

Best Wishes

MoonHawk

 

MH, I've blagged & amended your letter to COMET so will see where that takes me. I'll use your AK thread from now on for updates and leave the CCA for the purpose it was intended.

 

Thanks all

[pford]

Just had another letter of the Halifax over my cca request they have now written the debt off but refuse to remove the default marker of my credit file.

 

 

Your case has been referred to me in my role as a Customer Relations Manager with full authority to respond to customer concerns.

 

Can I firstly apologise for the delay in responding to your complaint. My understanding of your complaint is that you are unhappy that you have not been provided with a copy of your Credit Card Agreement. As such, you have advised that you feel that the debt is unenforceable under section 78 of the Credit Consumer Act 1974.

 

I am sorry that we were unable to provide you with a copy of your Credit Card Agreement. From our systems I note that you were made aware of this, in writing, by Halifax in January 2007.

 

I would like to confirm that the outstanding dept of £****** was written off by Halifax in March 2007. I fell that it is important to advise you that although the decision was made to write off the outstanding debt, this is not an admission of liability on the part of Halifax and should not viewed as such. The decision to write off the outstanding debt was a business decision based upon commercial viability.

 

Although the outstanding debt has been written off, Halifax are not disputing that you had the debt. As advised, the decision was based upon commercial viability and does not negate your responsibility towards the debt. As such, I regret to inform you that I am unable to alter the information held on your Credit File. Your Credit File will continue to show a default in regards to this account as it is a genuine reflection of the conduct of your accounts. You are also not entitled to a refund of any monies paid to lower the outstanding debt.

 

I appreciate that this will not be the answer that you were hoping for, however, I trust that this clarifies the Bank’s final position.

 

To comply with legislation, I would like to let you know that if you remain unhappy you can refer your concerns to the Financial Ombudsman Service.

[davey77]

That is so wrong pford! I mean, they can't process your data with the CRAs without an agreement. They don't have that so have no right to leave the default on your file! "commercial viability " my a**, they mean the law of course! grrrrrr