CCA request to Aktiv Kapital re 2 JDW accounts

[MoonHawk]

This is a request for anyone who has sent a CCA request to Aktiv Kapital, have not had an executable agreement supplied and are still getting pursued by AK, to register a complaint to the Trading Standards, so that there are enough complaints to get TS to prosecute.

 

In my case I sent requests for 2 accounts with JD Williams in March and was told by them that they can not provide it. While trying to get them to give me copies so that I can check the terms for charges and interest, they sold the accounts to Aktiv Kapital (while they were in default). I sent new requests to AK in May.

 

AK responded by saying that they did not have a copy and do not need to provide it as they bought the rights and not the duties under the Law Of Property Act (LoP).

Thank you for bringing Section 189 (1) of the CCA 1974 to our attention. We are well aware of this section of the Act and must point out that as a Debt Purchase Company we take assignment of the rights of the creditor, not the duties. Pursuant to section 136 Law of Property Act 1925, we are entitled to collect / sue for any entitlement that remains due under the agreement.

 

With the help of Tomterm8 I put together a response stating that this section of the LoP only relates to an absolute (otherwise known as legal) assignment of all rights and duties under a contract or agreement.

 

They have responded by saying that I do not understand the Consumer Credit Act and that because they did not provide the original credit facility they are not obligated to give me a copy of the agreement. Interestingly they have not mentioned the LoP and have only reserved the right to litigate. No threats of action.

 

In their letter they also said they are part of the Credit Services Association and that their guidelines states:

... that members of the Association are to deal with requests under section 77(1) as though they were the originating creditor, in so far as they are able to. The CSA states that it is up to each member on an individual basis to decide how far to comply with the Act.

:o Since when is it up to any individual or individual company to decide what part of the law thet adhere to? Do you mean I have had a choice all this time? And for the matter of record my request was under section 78(1) as it is for a running credit.

 

I called Consumer Direct who had the local Trading Standards (Northampton) call me.

 

It turns out (according to the lovely lady I spoke to) that AK, although have a UK address and a UK company, do not fully operate in the UK, and as such seem to think the law can be ignored. They have not fully grasped that they were required to have a CCA licence and that has to be renewed. They apparently also specialise in buying and pursuing statute barred debts.

 

The lady from the TS said that she will pass the details to the Chester TS (where AK HO is based) and the Manchester TS (where JD Williams are based). She said it is up to them whether or not they will immediately follow up my case. They may record it and wait until there are a number of similar complaints and then bring a class action against them.

 

So my request is … if you have a similar case with AK, please call Consumer Direct. They will get your local TS to call you and you can ask for it to be passed to Chester. But remember for it to be useful you will have to be willing for them to use your name.

 

Best Wishes

MoonHawk

[oneofakind]

I have requested CCA from Aktiv regarding an alleged debt with MBNA. They've failed to comply within the time allowed, and I'm now waiting for them to hit criminal default status. (3 weeks yet.) Should they default, be sure my complaint will be in the post.....

 

[42man]

I'm interested in this LOP.....has anyone got a definitive answer on this ? is there a law that staes they DO indeed take on the rights AND the duties ?/

[jpf104]

Just reading your thread... You might be interested to know that a test case is going through the high court at the moment (CAB led) to test if it is legal to sell a CCA debt without the all the rights and duties of the the original creditor!

I seem to remember that the LOP act has been misused for decades and has never been challenged.

I'll speak to my contact tomorrow and see waht the situation is!!

[phill123]

wether or not they are the original creditor thery must supply it . i am not too sure that the LOP is applicable on a simple contract. tth ematter is that a judge cannot award a CCj without the original executed agrrement and an absolute deed of assignment. the CCA is quite clear on that i think it is section 127 such as wilson and others v. secretsry of state for trade and industry make it clear . the oft guideline support the same without thoise thje debt is unenforceable.

[mrsc]

Hi,

Sent CCA request to Aktiv Kapital 26th July the only responce I have had is two more demands for payment will keep you informed if I receive anything as their 12 + 2 is up and the one month will be 14th Sept.

 

Will be willing to help if I can (this is on behalf of my daughter) but I am doing this for her.

[oneofakind]

mrsc - you no doubt have their standard letter saying that it's not their problem and they will charge you any CCA fees they incur?

 

Oh, how I laughed! :D

[MoonHawk]

Thanks for your responses.

 

Before I answer the question regarding LoP, can you please keep the thread just purely for registering of complaints against AK. There are threads already covering CCA, including the monstrous Consumer Credit Act Agreements, and I do not wish to get into discussions on CCA's here.

 

The LoP act has been used by both AK and Cabot to try and get around the Consumer Credit Act. This attempt fails on 2 accounts. The first which I have already sent a letter about. The second is a little gem in the CCA which I am about to use in another letter to them.

 

The first point is that they quote section 136 Law of Property Act 1925 which states:

 

136. Legal assignments of things in action.-

(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice-

 

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

© the power to give a good discharge for the same without the concurrence of the assignor:

 

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice-

 

(a) that the assignment is disputed by the assignor or any person claiming under him; or

(b) of any other opposing or conflicting claims to such debt or thing in action;

 

he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925.

 

(2) This section does not affect the provisions of the Policies of Assurance Act, 1867.

What I have replied with is that this relates to an absolute (otherwise known as legal) assignment of all rights and duties under a contract or agreement. Their response does not contain any further references to it, so seemingly they have given up on that with me.

 

Now they say that I do not understand the CCA and quote silly CSA guidelines. My response to this is that firstly CSA are an association and are not either a government body or a body responsible for enforcing legislation, and their guidelines are meaningless in that respect.

 

Also they say because they have only bought the 'rights' and not 'duties', they are not responsible for compying with the CCA ... wrong. If they only bought the rights then there are TWO owners of the agreement and as such the CCA says they they are both responsible for complying together:

 

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.

SO they are in default of the Act whether or not they like it.

 

Best Wishes

MoonHawk

[make them aktiv runners]

I think you will be better using section 175.

 

I created a separate thread as we would end up well off topic otherwise.

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/112975-equitable-assignment-how-affect.html#post1111203

[NitrousOxide]

Just reading your thread... You might be interested to know that a test case is going through the high court at the moment (CAB led) to test if it is legal to sell a CCA debt without the all the rights and duties of the the original creditor!

I seem to remember that the LOP act has been misused for decades and has never been challenged.

I'll speak to my contact tomorrow and see waht the situation is!!

What test case? Have I missed something?

[majorclanger100]

Hmmm it seems that Aktiv Kapital do recognise the Consumer Credit Act when it suits them (i.e. when they can get hold of a copy of the CCA) - they were very prompt in responding to us. Our problem is they don't seem to understand what a SAR means, but that's another story....

[MoonHawk]

Thanks 'make them aktiv runners', I'll take that into account. I'll see how my line of action goes with the TS. Whichever way you look at it AK are responsible and they still deny responsibility. My aim on this thread is to get as many complaints about AK having defaulted and preferably commiting a criminal offense by pursuing the accounts, so that TS can act. They may be able to individually fob us off by saying they are waiting for a number of cases, but if we know how many cases then we can pressure them.

 

I missed out on the test case too! Any links?

 

They understand the CCA fine. They are a license holder and as such know the regulations and the law. But as the lady in TS said (just like Cabot) they seem to think because they are foreighn company they can use the same tactics as they have elsewhere in the UK. We just need to get TS on their case. Also keep complaints going to OFT and ask it to be taken into account whenrenewing their license.

 

I know the course of action I am suggesting may not greatly help in individual cases, but I am looking at the longer term overall scenario. I can keep batting them away with letters etc and am confident if they dare take it to court, but there others here and those that do not use sites like this that will be taken for a ride, especially as they buy statute barred debts.

 

Best Wishes

MoonHawk

[jpf104]

Test case was to be heard in the Court of Appeal. However I have just learnt that the original creditor "made an offer that couldn't be refused". Case was settled. However there are cases going through the West London and Leeds county courts arguing that the LOP and CCA agreements and "ownership" are incompatible as in Moonhawks posts. As soon as I find out more I'll post again.

[MoonHawk]

A week on and as some had expected no call from Chester or Machester TS offices.

 

I will write to them direct later this week and if still no response will be lodging a complaint.

 

I am still alittle fed up with AK for their insistance on having only the benefits of the agreement. So I have sent the following to the OC:

 

With regard to the above accounts held by Mrs XXX, Aktiv Kapital (UK) Ltd, whom you have assigned the accounts to, have stated an intention for a court claim. The have also stated on several occasions that you have assigned them only the rights to claim the balance, but that the duties and liabilities remain with (XYZ Ltd).

 

Can you please confirm that this is the case since, if this is correct, I intend to apply for (XYZ Ltd) to be added as a party to this case, as an equitable owner, and issue a counter claim for all penalty charges and interest applied without a properly executed agreement. I will also seek full disclosure of your costs in relation to any penalty charges, and I may also bring a counter claim for libel against your organisation in respect of any incorrect default information recorded at the credit reference agencies.

 

If the assignment was a full and legal assignment, then I would appreciate a copy of the deeds of assignment to verify this. I understand that you may have to delete or omit some sensitive business information such as prices agreed. Please note that I will request this under Civil Procedures Rule in the event of a court case. In the alternative you may confirm the nature of the assignment in a letter, which I may use in court or to pass on to the Trading Standards.

 

If I do not hear from you within 14 days of the receipt of this letter, then I will assume that you indeed hold the duties and liabilities on the accounts as claimed by Aktiv Kapital, and proceed accordingly.

 

Sent RD and should be on someones desk today, so they have until the 24th to respond.

 

Best Wishes

MoonHawk

[conar686]

Repeat of post on CCA thread - it would seem that Chester TS don't want to here from you unless U R a Manc.

 

 

I complained to Cheshire TS re Aktiv Kapital's criminal default of my CCA request. To be told I should complain to the TS office where I pay my council tax.

 

AK office is in chester, they committed the offence in that bailiwick, it would be a waste of taxpayers money to have my local TS carry out the investigation.

 

I'm almost giving up on Trading Standards & the OFT - you complain & you either get fobbed off or they fail to keep you appraised.

 

I prpose the mods start a sticky on Trading Standards successes & failings. Lets owt the offices that don't do the job we pay them to do.

 

RANT over (angry jock person)

[karen654321]

Hiya in the same boat as you all i think. Sent cca to aktiv kapital. Had all the normal excuses. Debts to old, they dont need the cca as they are not the original creditor etc etc.

 

CCa them in June so they are well over the stat time limit but we get a letter a week at the moment on average chasing us for this money.

 

I will definately report them now.

 

karen

[conar686]

Further from my earlier reply re movement of complaint from Cheshire to my local TS

 

I bleeding well despair at some of these comments. Not one single mention of any action to be taken re their criminal default. Nothing about their statement that they are not bound by the CCA.

 

Anybody want to suggest a response before I do?

 

I don't want to enter into protracted correspondence on this issue but I should endorse that Cheshire Trading Standards have done nothing wrong.

 

There is a general agreement between Trading Standards Departments in the UK that where a consumer makes an enquiry then it is dealt with initially by the local office regardless of where the trader resides, thus Cheshire Trading Standards have done exactly as I would have anticipated and that is why I have responded to you.

 

The reason is that you pay for the service via that part of your council tax which goes to XXX County Council. Should we need to enlist Cheshire's help then we will do so at our discretion.

 

I have been reading through the correspondence which you sent to me but I always find it a little difficult where I do not have sight of the company's responses, only the letters which a consumer has written. There are many issues you have raised which may require discussion and in order to advise you properly it would be helpful to see the responses.

 

Indeed I have to agree that the CCA dictates that where there are antecedent negotiations conducted face to face and the credit agreement is subsequently signed in the debtor's own home, then there would be a statutory cancellation period. (The two accounts (purchase of a laptop & a store card) were without cancellation statements)

 

However, it is unusual for such an agreement with a company like P C World to be taken to the debtor’s home to be signed and it might be difficult for you to prove this now especially since, I imagine, you must have ratified the agreement by making the initial payments.

 

May I also point out that it is important to distinguish between what is laid down in the Consumer Credit Act itself and the Office of Fair Trading's Guidelines, the former has the force of law, the latter is what it says, a guide, which does not actually have the force of law.

 

The Consumer Credit Act also lays down that it is the creditor/finance company who is under an obligation to provide you with a copy of your original agreement, not any debt collection agency to whom the debt has been passed for collection. (DOH)

 

Any related data protection issues will have to be left to the expertise of the Office of the Information Commissioner as I have no specialist knowledge of them. (I complained that they are processing my data without permission)

 

I should be grateful if you would be kind enough to clarify what help/advice you require in order that I may both frame my responses to you in a coherent manner and take any action which it is within my power to take to help you.

[MoonHawk]

Well I have not heard from them for a while. I need to check my wife's credit file to see if they have put anything on there or not.

 

In the meantine I sent this letter to the original OC:

 

With regard to the above accounts held by Mrs MoonHawk, Aktiv Kapital (UK) Ltd, whom you have assigned the accounts to, have stated an intention for a court claim. The have also stated on several occasions that you have assigned them only the rights to claim the balance, but that the duties and liabilities remain with J.D. Williams.

 

Can you please confirm that this is the case since, if this is correct, I intend to apply for J.D. Williams to be added as a party to this case, as an equitable owner, and issue a counter claim for all penalty charges and interest applied without a properly executed agreement. I will also seek full disclosure of your costs in relation to any penalty charges, and I may also bring a counter claim for libel against your organisation in respect of any incorrect default information recorded at the credit reference agencies.

 

If the assignment was a full and legal assignment, then I would appreciate a copy of the deeds of assignment to verify this. I understand that you may have to delete or omit some sensitive business information such as prices agreed. Please note that I will request this under Civil Procedures Rule in the event of a court case. In the alternative you may confirm the nature of the assignment in a letter, which I may use in court or to pass on to the Trading Standards.

 

If I do not hear from you within 14 days of the receipt of this letter, then I will assume that you indeed hold the duties and liabilities on the accounts as claimed by Aktiv Kapital, and proceed accordingly.

 

They then replied with a long letter about penalty charges and no mention of the assignment. Didn't read the letter properly obviously.

 

So I wrote back:

 

Your letter seems to be nothing but a standard letter and by no means answers the question I raised in my letter. Your letter is a response to penalty charges, something that I did not request a reply to.

 

In my letter I specifically requested clarification as to the nature of the assignment of the above accounts to the company Aktiv Kapital (UK) Ltd. They have repeatedly stated that, you as JD Williams & Company Limited, still hold the duties and liabilities of the accounts, and they, as a company, hold the benefits. If this is the case then you are jointly responsible for the accounts, and a court case may only proceed with JD Williams, as an equitable owner, represented.

 

So I ask once more for you to clarify if the assignment of accounts X and Y, to Aktiv Kapital (UK) Ltd, was a full and legal assignment or a partial assignment, keeping JD Williams & Company Limited as an equitable owner.

 

If I do not hear from you in due course, I can only assume that you are deliberately withholding this information from me and have no choice but to use the powers of the court to force their disclosure, if required. I will in any case report you to the Office Of Fair Trading for refusing to answer a legitimate query and putting a customer in a distinct disadvantage in relation to a potential court case.

 

If I do not hear from you within 7 days of the receipt of this letter, then I will proceed accordingly.

 

The received that on Wednesday, so have a week to respond. I'll wait and see what I get.

 

Best Wishes

MoonHawk

[medsec]

I have one of my debts with AK too.... so far I have managed to get an agreement paying it off at 10 quid a month, but I wonder how much of it is charges and interest

 

Will follow this with interest

[Dibsthefrenchie]

I sent a CCA request to AK and received a letter listing the data that is held on their system relating to me, basically my personal details, amount outstanding and also the following line: Aktiv Kapital UK Ltd £700.00, no idea what it relates to, so sent a follow up letter asking again for the CCA, Notice of Assignment and a detailed statement.

I have received a letter back stating the usual, we are not the original creditor etc, but as yet, no CCA, statement or notice of assignment.

I'm currently playing the waiting game.

[Dispirited]

I sent a CCA request to AK in July to which I've had no response from them other than umpteen calls and texts to mobile demanding repayment.

[elsinore]

MH, I'm sorry to say that I have only just come across your thread via a link.

 

Aktiv Kapital have been a thorn in our side for a long time and I commend you for instigating a concerted attempt to bring them to book. If you think I can help at all then I'll do all I can.

 

The points about TS complaints procedures are valid. A TS office is only obliged to deal with complaints from ratepayers in their own area. However, if the DCA complained of is based in another TS area, ones local TS office would be expected to at least advise that other office, if not pass the whole complaint up to them for further action. This is particularly important as multiple complaints about one DCA can then be collated, giving a clearer picture of its continual lawbreaking. I didn't leave this to chance. When corresponding with my local TS I copied all letters to Chester.

 

Chester Trading Standards must, by now, have recieved many complaints about AK, yet AK still ignore the law and carry on in their own sweet way, which presupposes that Chester TS have done little or nothing. It would be nice to hear from Chester TS as to what stage they are at in regulating AK's activities. Maybe someone based in their area can winkle an answer out of them.

 

One of the biggest problems is the unevenness of TS responses from around the country. We seem to know more about the law and the flouting of it than they do. It's my belief that the only sure way to stop AK is to take them to court.

 

You might want to read the relevant parts of my thread http://www.consumeractiongroup.co.uk/forum/other-institutions/12020-elsinore-aktiv-kapital.html in case there is something useful to be added to the mix.

 

As you will see, my AK tale is not yet fully told, but there will be some developments soon.

 

Els

[MoonHawk]

I sent a CCA request to AK in July to which I've had no response from them other than umpteen calls and texts to mobile demanding repayment.

I have not heard from them for ver two weeks now, so not sure if they are going to stop or carry on at this point.

Write to them and say that you will only deal with them in writing and to remove your telephone numbers from their files. They must do this if requested.

 

MH, I'm sorry to say that I have only just come across your thread via a link.

Not sure if there is aneed for any sorrow The more the merrier, but it is a huge site.

 

Aktiv Kapital have been a thorn in our side for a long time and I commend you for instigating a concerted attempt to bring them to book. If you think I can help at all then I'll do all I can.

Thanks

 

The points about TS complaints procedures are valid. A TS office is only obliged to deal with complaints from ratepayers in their own area. However, if the DCA complained of is based in another TS area, ones local TS office would be expected to at least advise that other office, if not pass the whole complaint up to them for further action. This is particularly important as multiple complaints about one DCA can then be collated, giving a clearer picture of its continual lawbreaking. I didn't leave this to chance. When corresponding with my local TS I copied all letters to Chester.

I have had their workings etc explained. My beef with them is that once passed on to another TS, they should at least drop you a letter saying what they are doing. I find it appaling that there is no reaponse from Chester.

 

Chester Trading Standards must, by now, have recieved many complaints about AK, yet AK still ignore the law and carry on in their own sweet way, which presupposes that Chester TS have done little or nothing. It would be nice to hear from Chester TS as to what stage they are at in regulating AK's activities. Maybe someone based in their area can winkle an answer out of them.

 

One of the biggest problems is the unevenness of TS responses from around the country. We seem to know more about the law and the flouting of it than they do. It's my belief that the only sure way to stop AK is to take them to court.

That is the whole issue here. Different TS offices give different advice and act differently. That in itself is not a good thing and should be addressed.

 

Given the lack of response from Chester I do not know if they are going to act or just dumped my complaint. That is why I have started this thread to get a list of complaints together so we know that at least X number have beed lodged and that way we can complain about Chester TS fro lack of action. Without knowing how many compaints have gone through a complaint will not be successful. And so far not many people have said on this thread that they have put a complaint in. So I wait

 

Also Chester might say what a couple of other TS's have said, which is accepting the word of AK that they only have bought the rights. This I am not willing to accept until I have either confirmation from the OC, or TS actually take a look at the assignment deeds.

 

Once I know which it is then I can proceed accordingly. I either need to bring the OC to task (they sold the debt when in default), or bring the OC and AK to task. Either way AK can not pursue any debt, however assigned without compliance with the CCA. Either they are responsible, or they are joint owners and have to wait until the OC complies. that is why I am trying to get the OC to declare how the account was assigned.

 

You might want to read the relevant parts of my thread http://www.consumeractiongroup.co.uk/forum/other-institutions/12020-elsinore-aktiv-kapital.html in case there is something useful to be added to the mix.

Will Do

 

Best Wishes

MoonHawk

[conar686]

MH

 

I've asked an admin to copy from 9165 post plus repsponses from the CCA thread to here as its more relevant

[MoonHawk]

No proble Conar It seems to become our little thread. There is the Cabot fan club, maybe we should start a AK fan club

 

Best Wishes

MoonHawk