Mahala v Aktiv Kapital ** WON **

[mahala]

On 2 May, I sent the following letter to Aktiv Kapital. They had bought a debt from GE Capital and we have been in dispute about the amount for some time now, as lots of payments were made but never deducted from the amount owed. Aktiv Kapital has, in the last month, acknowledged these payments. However, it is 3 years since we asked them to look into this matter, and they have still not received the info they requested from GE Capital.

 

Therefore, I have sent a DPA request to GE Capital and the following letter to Aktiv Kapital:

 

 

Please be aware that I no longer acknowledge this debt to your company, and therefore require you to supply the following documentation before I will correspond further.

 

Firstly, you must supply me with a true copy of the agreement you refer to in this matter. This is my right under the legislation contained within section 77 (1) and section 78 (1) of the Consumer Credit Act 1974 - your obligation also extends to providing a statement of account. I enclose a £1 postal order in payment of the statutory fee.

 

I also require that you supply a signed true copy of the deed of assignment of the above referenced agreement.

 

You are reminded that you are obliged to supply these documents, whether you are the original creditor or not, under section 189 of the CCA 1974.

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

 

Take note at this stage, that any legal action you may contemplate will be both vigorously defended and contested. I am now initiating investigations with GE Capital Bank into the validity of the original amount that was claimed to be owed, and will be in contact with you again in due course. In the meantime please be aware that I consider this matter to be “in dispute”.

 

The letter was sent recorded delivery, but on checking the Track and Trace area of RM website yesterday, it still showed as having not been delivered. We called RM, who in other instances of this have managed to dig around and find a signature. In this case, they said they had no record whatsoever of the letter being delivered and we should claim for it as a lost item.

So, it may have been delivered, it may not have been. Do I therefore need to send it again and start the clock ticking again? They are half way through the one month they have to adhere to this request.

[maddyrose1664]

If I were you I'd send it again. Just to be on the safe side. I would also start the clock ticking again so that if it gets to court they can't use insufficient time as a defence.

[mahala]

letter resent special delivery today. Claim for £32 going in to RM on Tuesday for the lost letter sent by recorded delivery.

[elsinore]

Anything to report yet, Mahala?

 

I recently asked Aktiv for my personal file details and got back a standard letter which simply stated the o/s balance (as they see it). I smell a rat!!

I'll be starting my own thread shortly with full details, but, meanwhile, I'm interested in your progress (if any!)

 

Onwards and upwards

 

Elsinore

[mahala]

nothing yet. They have until June 19th now though. Before I sent this letter, I had a letter from them telling me what they would accept as a settlement figure. Wasn't quite what we were after really, since we were trying to access info they told us they were getting from GE Capital 3 years ago.

 

Will update if anything happens, or on 19 June if it doesn't!

[Seminole]

Only just spotted this thread and who you are dealing with.

 

I have to be a little careful what I say here just in case this company is watching. They tend to try to close down websites that say unpleasant things about them.

 

Aktive Kapital are associated with Thames Credit, an aggressive debt collector based in South East London. TC's business model is to buy quite old debt and pursue it vigorously. There have been instances where they have been accused of buying statute barred debt and trying to collect that. In any event it may be very difficult to get any information out of them.

 

If they fail to comply with Consumer Credit Act enquiries or DPA requests, I would strongly urge you to complain to Trading Standards and the Information Commissioner respectively. In fact if they don't comply with the DPA I would also recommend bringing a specific county court against them for compliance. If anyone wants to do this, let me know and I will be pleased to help.

[mahala]

Aktiv Kapital's deadline is just over a week away. So that I am prepared for the next step, what do I need to do next in terms of complaining to Trading Standards? Is there court action to take in this case, or will Trading Standards take care of the issue?

[Seminole]

It's just a letter setting out the train of events and their failure to reply to a CCA enquiry. You should send it to your local Trading Standards and also I would suggest to Bromley Trading Standards because that's where their office is based. In fact I'm sitting about 10 minutes walk away from it. Normally Bromley wouldn't do anything but I think they get quite a lot of complaints about this company. If you do write to them pm me and I will give you the name of the person to write to and my own name which you can quote as suggesting that you write to them. It'll give them a bit of a shock and may spur them into action.

[mahala]

Thankyou! Will get onto that this week.

[mahala]

"Come in number 6, your time is up"

 

Aktiv Kapital's one month deadline is up today. Not only have they defaulted on my CCA request, they have now committed an offence. The debt is unenforceable until they do something about that

[mahala]

Seminole, I'm sending the letter to Trading Standards tomorrow, just writing it now. I was about to copy it to Bromley TS, when I noticed that the address I've written to AK at has been in Chester. This is the address I've had correspondence from in the past.

 

Does that make a difference? Is it their main office in Bromley, and should I go ahead with that particular rocket?

[elsinore]

Seminole, I'm sending the letter to Trading Standards tomorrow, just writing it now. I was about to copy it to Bromley TS, when I noticed that the address I've written to AK at has been in Chester. This is the address I've had correspondence from in the past.

 

Does that make a difference? Is it their main office in Bromley, and should I go ahead with that particular rocket?

 

Hi, mahala, glad to see things are progressing nicely for you!!

 

The Bromley address is for Thames Credit (which is a subsidiary of AK).

I am corresponding with Chester which is AK's head office.

So I think you should continue to write to Chester, but, as seminole suggests, send a copy to Bromley TS. Why not send a copy to Chester TS as well?

 

Onwards and upwards

 

Elsinore

[mahala]

Thanks for the info seminole

 

Letters in post this afternoon. Will wait and see what happens with Trading Standards now, rather than write to Aktiv Kapital to get the default removed.

 

Text of my letters appears below, with the info seminole gave me omitted

 

 

I write regarding Aktiv Kapital, a debt collection agency which has placed a Default on my credit file. To the best of my knowledge, I received no Notice of Default from Aktiv Kapital, and in any case, the debt it refers to has been in dispute for some years now.

I wrote to Aktiv Kapital on 2nd May 2006, exercising my right under sections 77(1) and 78(1) of the Consumer Credit Act 1974, asking for “a true copy of the agreement referred to in this matter”, a “statement of account” and “a signed true copy of the deed of assignment of the above referenced agreement”. I enclosed a £1 postal order with my request. The letter was sent 1st class recorded delivery.

I resent the same letter on 19th May 2006, due to Royal Mail being unable to confirm delivery of the original letter. I again enclosed a £1 postal order and sent the letter 1st class recorded delivery.

To date, I have received no acknowledgement or response of any kind from Aktiv Kapital. As you can see, I have allowed them one full calendar month from the date of the second letter in which to respond.

I would be grateful if you would investigate this matter and notify me of your findings.

[mahala]

I have today received my credit file from CallCredit. Interestingly, there is a CCJ on there from 2002. I suspect this is from Aktiv Kapital, although there are no details there to confirm this. The CCJ does not appear on my file with Experian or Equafax.

 

The reason I suspect AK is that in 2002 they told my husband, who was acting on my behalf, that they had obtained a CCJ against me. We received no paperwork at all about this, and when we asked AK to supply any documents at all dealing with it, they were unable to - couldn't locate the paperwork.

 

My credit file today is the first evidence I've seen of this CCJ.

 

Bearing in mind that AK have neglected to comply with my CCA disclosure request, can I get this CCJ removed do you think? There's a default on my Equafax and Experian files from AK, which doesn't appear on CallCredit. Ideally, I'd like to get both the CCJ and the default removed, although this might require GE Capital to comply with their DPA request too ....

[Seminole]

You should be able to check the details of the CCJ either with the court or with Registry Trust (www.registry-trust.org.uk). I'm not sure what the latter do with the details of those who make searches and I would be slightly wary.

[mahala]

ok, bit of updating needed here.

 

Wrote to TS in Bromley and Nottingham. Bromley came back saying they had no record of a company by that name in Bromley and as I had written to my local TS they would leave it at that.

 

Nottingham came back to me yesterday and I've spoken to them today. They are not, at the moment, going to persue AK about not supplying the information, because as it stands the debt is uneforceable. If they go after AK and get the information supplied, then they can come after the debt again.

 

However, that's not the end of it. I got my credit file from CallCredit last week and found a CCJ on there, which I believe is from AK. I never received any information about this, as it all seems to have gone to an address 2 years out of date. TS have suggested I start proceedings to have that set aside.

 

They are not sure if, once that is done, AK could re-issue their claim. Obviously the debt is unenforcable at the moment, but could they reissue the claim on the basis that it was enforcable at the time fo the original claim - 2002?

 

If they do try and re-issue, then I have to call this guy back at TS and he'll see what he can do then. I'm also still waiting on info from GE Capital to see whether I will have grounds to try and get the default removed from my credit file.

 

If I do, and AK refuse, TS have suggested exploring the issue of AK being fot to hold a credit license.

 

For the record, I was told that TS are not best pleased with the credit reference agencies either, as they are not fussy about the information they put on file - such as people being given "grey" marks for paying off agreements early - a flag to lenders that they won't make as much in interest out of this customer.

[kyuudousha]

Hello Mahala,

 

I have also experienced problems with AK and GE Money with regards to a CCJ and defaults on my credit file. I have posted a link to my thread below:

 

http://www.consumeractiongroup.co.uk/forum/debt-bailiffs-advice/18126-aktiv-kapital-again.html

 

It is slightly long winded, but the end result is the removal of the default and the CCJ set aside as of today...

 

I went for a set aside hearing and they didn't bother to show up so the judge found in my favour. The original default was recorded in such a mess that I am now suing GE Money and am contemplating the same fate for AK for their breaches of the DPA...

 

Try not to lose your faith, it sounds as if you have a good case to me, but then I'm not a legal eagle myself.

 

Anyway, hopefully you should find some answers to many of questions on my thread. I hope it will be of some help to you.

 

Kyu.

[Movingon]

OK - a bit more updating. Wrote to the Court today, having all the info we could find about the CCJ. Here's the letter. Of course, "re-engagement" is simply a case of making them remove the Default if possible and cleaning mahala's credit file up... but the court don't need to know that.

 

Dear Sirs

SET ASIDE REQUEST

I am Mahala J Stonelaughter, née ****, formerly of **** (address). I can furnish identification documents where required to substantiate this.

 

I am writing with reference to the subject claim, of which I have recently become aware for the first time. I can confirm that I was not aware of this claim at any time in the past and that I was not therefore given the opportunity to defend myself against it. I have become aware of this claim via my Credit Reference report in which I am attempting to correct several inaccuracies. This report does not give the details of the Claimant.

 

I therefore respectfully request the following actions at the Court’s discretion:

 

1. That the Judgement in the subject claim be set aside, and all parties thereto be thus duly notified.

 

2. That the Court notify me in writing of the name and address of the Claimant that I may re-engage with them in order to resolve any dispute over monies owed.

 

I look forward to hearing from you in the near future.

 

Yours faithfully,

[Movingon]

The thick plottens. They wrote to Mahala today and basically said "Well, we've sent you the signed agreement like you asked and you haven't contacted us - now we want to talk to you about you giving us some money". They called ME (stoney) at work at the same time - they used their usual tactics of refusing to identify themselves or Mahala - "It's Marie from Chester - I'd like to talk to Mahala is she available?". Repeated requests for Marie's identity (as opposed to her name) fell on deaf ears - so I just hung up on her.

 

They of course forget to mention that they completely ignored the CCA request - they never sent a BEAN. Funny how THIS letter got through, though, eh? Just another attempt at bullying someone they think will lie down and pay... I think TS are going to be very interested.

[elsinore]

I think TS are going to be very interested.

 

Well I hope your TS are more interested than mine were Stoney!

 

That's why I always suggest that complainants send a copy to Cheshire TS in Chester (AK's local). That way they get to hear about the many complaints against AK and, hopefully, will take action.

 

AK really do need stopping.

 

Elsinore

[mcvey123]

Aktiv Kapital are the worst company I have ever had to deal with and I have been fighting them for months.

 

They bought 2 "debts" from First National / GE Money that I had already paid through other collection agencies. How? I do not know. I had a record of payment for one of these debts so they amended my credit file to read "settled" although the default is still on there. The other is still outstanding on my record. The collection agency that I paid it through cannot help without an account number as it is such an old account, it must have been archived.

 

I requested a copy of the original agreements: not able to find

I requested a copy of the default notices: cannot supply

I requested all statements: They could only supply info from when they bought the debt, thus not being able to prove that they debts have long been paid - and I mean years ago.

I reported them to TS: Waste of time

I reported them to the Information Commissioner: No Help. They believe AK as they said I must have defaulted with First National in the first place and since AK bought the debt, the defaults remain.

New Plan of Action:

 

I have submitted an SAR to First National / GE Money.

 

They have less than a month to supply me with all statements from the inital loan until they sold the debt. I am hoping that this will include all payments made through collection agencies. I am also hoping that it will include loads of unfair and unenforceable charges amounting to over £350.

 

I have kept every letter and all correspondance relating to this company, and I plan to have this debt ended and the defaults removed thus ending this horrible scenario with AK forever. They are a nightmare to deal with.

[Movingon]

Here's the latest installment; they wrote saying "You've got the agreement, now pay up!", then they phoned us both on various occasions, then they wrote again saying "Look we tried to help you by making an agreement to pay; but you didn't pay the first installment - if you don't pay in 7 days the agreement is void."

 

So - here's Mahala's reponse...

 

Dear Sirs

 

SUBJECT ACCESS REQUEST

 

It would appear from your recent communications dated mid and end January that certain key communications between us have not arrived at their respective destinations – and that some are being misread. For instance you state in your mid January communication that you have sent out a copy of the original signed agreement relating to the referenced account. I can confirm that I have never received this document, and therefore as far as I am concerned there is no debt for you to enforce. You further state in your latest communication of 31st January that we have made an agreement for me to repay the debt; and yet I can again confirm that no such agreement exists because I am not in receipt of the legally required documentation and therefore there is no debt for me to answer. Further to this, as I have not been in receipt of the required documentation, it appears to me that a criminal offence may have been committed and this has duly been reported to Trading Standards who are currently involved in this case. You should be aware that the alleged debt remains in dispute and you will not therefore be pursuing any enforcement action in relation to it; further to this I will not be making any payments until the dispute is resolved to my satisfaction. This letter will be drawn to the attention of any enforcement authorities who may become involved. I will draw your attention to the OFT’s guidelines on Debt Collection; it is clear to me that many of the agents operating on behalf of Aktiv Kapital are unclear as to their duties under the Law and require retraining. I once again remind you that ALL communication between us is to be in writing.

 

In order to clear up any ongoing confusion between us, and in accordance with my rights under s7 of the Data Protection Act 1998, I now require you to send all data you hold on me in a “relevant filing system” – and I would advise you to consult recent OFT Rulings (for instance OFT vs Abbey) on what is, and what is not, a relevant filing system before you reply. I require all information held, but specifically I require copies of all communications between us at any time during the six years preceding 15th February 2007. Pursuant to this request I enclose a cheque for £10, in case it should be required. This cheque shall be encashed ONLY against this subject access request – any other use of this cheque shall be seen as theft and will be duly reported to the Police and the Trading Standards Department as such. You should include in your response any “recorded delivery” reference numbers or other tracking means showing delivery which may be in your possession. You have 40 days to comply from two days following the date of this letter. Any attempt to recover this amount with or without due process will be vigourously defended and contested. I look forward to your timely response.

[Movingon]

Finally - FINALLY we have applied for this nonsense to be set aside (and the default erased) in the Northampton County Court, requested to be done without a hearing. If the Judge requires a hearing then so be it; but I'm optimistic that this is fairly cut and dried because of the evidence we've submitted that the debt being chased is spurious.

 

I'll post our N244 text and list of evidence later when I get home...

[Movingon]

The application has been accepted and transferred to the Nottingham County Court - not sure why it went there instead of Mansfield but it's fair enough - only 15 miles away.

 

Still haven't posted the application; I'll get to that tonight

[elsinore]

Following progress closely, Stoney.

 

Els