aktiv kapital uk no cca **WON**

[karen654321]

Hiya,

 

Sent a cca request to aktiv kapital on 2/6/07 they recd it on 7/6/06. This is for a debt in partners name.

 

We had a letter back stating that they are not the original creditor nor did they provide us with the original credit facility. They purchased the outstanding debt balance and the right to collect the balance. They did not purchase the agreement so are not obliged to provide it. As a matter of good practice they have contacted the orignal creditor and they have advised its not available.

 

So i sent a letter back stating that we do not acknowledge debt Until cca is provided no further payments will be made.

 

on 31/7 we had a letter stating they are the legal owners of the account and our liability is to them to pay.

 

I sent another letter stating again we do not acknowledge this debt

 

on 15/8 they sent us a letter on there headed paper stating

 

terms of payment monthly

type of agreement unsecured credit agreement

balance owed 228.06

arrears full balance due

last payment date 2/07

date the account defualted 16/10/00

 

we trust this now clears up any queries you have had and now look forward to recievein payment

 

I sent the same letter back stating we do not acknowlege this debt and that they have now had the time limit to provide this cca. The are breaking the law by not providing it.

 

on 22/8/07 As this is an aged debt we are unable to retrieve the cca from the archives.

 

I replied again no cca do not acknowledge debt

 

on 3/8 they sent a questionairre for income and work details and asked us to sent a first payment.

 

I have email them and told them they are harrassing us. Get one letter a week from them.

 

I just wanted to know if im doing the right thing and if there is anywhere i should report these to.

 

thanks

 

karen

[Curlyben]

This is a Cabot tactic with the rights but not the duties cobblers.

 

The creditor under a regulated agreement for fixed sum credit, within the

prescribed period after receiving a request in writing to that effect from the debtor and

payment of a fee of 15 new pence, shall give the debtor a copy of the executed

agreement (if any) and of any other document referred to in it, together with a

statement signed by or on behalf of the creditor showing, according to the information

to which it is practicable for him to refer,—

(a) the total sum paid under the agreement by the debtor;

(b) the total sum which has become payable under the agreement by the debtor but

remains unpaid, and the various amounts comprised in that total sum, with the

date when each became due: and

© the total sum which is to became payable under the agreement by the debtor,

and the various amounts comprised in that total sum, with the date, or mode of

determining the date, when each becomes due.

 

Now s77-79 refer to the "creditor", this term is defined in s189.

“ creditor “ means the person providing credit under a consumer credit agreement or

the person to whom his rights and duties under the agreement have passed by

assignment or operation of law, and in relation to a prospective consumer credit

agreement, includes the prospective creditor;

Same applies to s78 and s79 aswell.

 

Now if they are saying that they aren't the creditor as defined by the Act the you cannot possibly be the debtor

“ debtor “ means the individual receiving credit under a consumer credit agreement or

the person to whom his rights and duties under the agreement have passed by

assignment or operation of law, and in relation to a prospective consumer credit

agreement includes the prospective debtor;

Therefore there is NO debt to pay.

[Curlyben]

Try this letter on for size.

Edit as needed:

 

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY

 

I refer to my letters dated XXXXXXXX which was delivered via recorded delivery to your offices on XXXXXXXX, and my follow up letter dated XXXXXXXX.

 

In my letter xxxxxxI made a formal request for a copy of the signed, executed credit agreement for the above numbered XXXXXXXX account under section 77(1) and section 78(1) of the Consumer Credit Act. In addition a statement of my account should have been sent along with any other document mentioned in the credit agreement.

 

You are stating that you are not a creditor for the purpose of the Consumer Credit Act 1974.

Therefore, it follows that, should you not be a creditor that I can't be a debtor.

"189(1) "debtor" means the individual receiving credit under a consumer credit agreement."

This is following the logic of your own arguement.

 

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, Your company commit an offence. These time limits expired on XXXXXXXX and XXXXXXXX respectively.

 

As you are no doubt aware subsection (6) states:

 

If the creditor under an agreement fails to comply with subsection (1)—

 

(a) He is not entitled, while the default continues, to enforce the agreement; and

(b) If the default continues for one month he commits an offence.

 

Therefore as at XXXXXXXX this account became unenforceable at law and it is now my intention to refer this matter to the enforcement authorities.

 

Any default notices or adverse comments your company have recorded on my credit reference file should be immediately removed.

 

It is also my belief that your continued pursuance of this matter also constitutes an

offence under Section 40 of the Administration of Justice Act 1970.

 

Failure to respond favourably to this letter within seven (7) days of receipt will result in immediate litigation being commenced against your company without further notice.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

Yours faithfully

 

If you get no joy from this then time to report them to Trading Standards for CCA non-compliance.

[karen654321]

Thats fantastic. Thanks very much. Letter is brilliant and straight to the point.

 

Will get this printed and in the post recorded delivery today and see what they reply with.

 

Once again thanks very much and i will keep you updated.

 

karen

[Curlyben]

Just one other thing.

IF you sign it make sure it's either very different from normal or you sign over a printed line, for example #__________*__________#, this will ensure that if Acktiv try any "funny business" it will back fire on them.

[djdave]

I've never understood that whole "we are not the creditor" bowlax. As CB says, if there's no creditor, how can there possibly be a debtor as defined by s189?

[Curlyben]

Djdave, I think what they are referring to is how they purchased the debt.

Normally the Law of Property 1925 s136 is used, but they come unstuck with this as well.

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.

The telling phrase here is absolute assignment.

This basically means they are legally the new owner of the account, so the rights AND duties of the creditor pass to them.

 

 

 

The only other way this could possibly be true is if it was an Equitable assignment, in which case they still need to liaise with the OC for direction.

[karen654321]

Thanks for all that info. I sort of understand it lol. So basically sit tight and wait for them to reply if they do.

 

Im sure they will.

 

will keep you posted.

 

karen

[rory32]

Normally the Law of Property 1925 s136 is used,

Yes I think everyone has had that, including me. Shame the LOP Act never applied in Scotland.

 

Basically the assignment is always going to be equitable (an assignment under common law) as you would have to agree to an absolute assignment (asignment under statute).

 

As a matter of good practice they have contacted the orignal creditor and they have advised its not available.

 

Surely they don't mean that there is no credit agreement

 

How would they enforce the debt?

[NitrousOxide]

Also no contractual or signed provision for any default they may have entered.

[karen654321]

Thanks once again for replies. Will let you know what there next letter says.

 

karen

[NADEEM]

Am in the same boat as well, but just hanging on a little more before hitting them with this as well.

[conar686]

Thanks once again for replies. Will let you know what there next letter says.

 

karen

 

Karen - Subscribe to MoonHawks thread on AK add your complain to the others

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/112901-have-you-sent-cca.html

[karen654321]

Thanks for that have now subscribed.

[karen654321]

well no news is good news i suppose. This must be the longest period of time thats gone without recieving any letters from them..

 

Im sure i havent heard the last of them but just waiting

 

will keep you posted

 

karen

[karen654321]

Not much happened here.. Had a few calls and a letter. Will not speak to them on phone and just file letters now...

 

will keep you posted

 

karen

[oneofakind]

Subscribing. I have the same issues with AK...

 

[karen654321]

Hiya just to update. We are getting on average a call a day. Last wednesday we had 3. My husband answers hes mobile then when he realises its them just puts the phone on the side so they are just listening to back ground noise.

 

We have had one letter since previous just saying we can ask for more time to pay.

 

But thats about it at the moment.

 

will keep you updated

 

karen

[babybear39]

Hiya Karen just came accross your thread and have had dealings with his bunch of *****

 

You need to send this letter ASAP:

 

Your Street

Town

City

Postcode

 

DATE HERE

Company Name

Road

Town

City / County

Postcode

 

Re: Harassment by telephone

 

 

ACCOUNT NUMBER: XXXXXXX

 

Dear Sirs

 

I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.

 

I have verbally requested that these stop, but I am still receiving calls. (Delete if necessary)

 

I now require all further correspondence from your company to be made in writing only.

 

I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

 

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Be advised that any further telephone calls from your company will be recorded. (**Even if you don‘t yet have recording equipment!!**)

 

 

Yours faithfully,

 

 

 

[NAME HERE]

 

And also report them to Trading Standards ASAP. Here's the link:

Trading Standards Central - Trading Standards and Consumer Protection information for the UK

 

Good luck and best wishes...

[karen654321]

Thanks very much for that. Its great. Will get it posted out first thing in the morning.

 

karen

[karen654321]

Hiya, Really worried about letter we have recieved today.

 

it reads

 

The debt you owe is within the scope of bankruptcy proceedings.

 

This means that all we have to do now is to have a statutory demand served upon you. If you then fail to make an offer of payment to us within three wees, we may make an application to the courts to have you made personally bankrupt.

 

We have prepared a statutory demand and should you not respond IMMEDIATELY our local agent may be instructed to serve it upon you without further notice from us.

 

THIS DEBT IS OWED BY YOU AND WILL NOT BE WRITTEN OFF, IT MUST BE REPAID.

 

yours faithfully

 

 

Im getting worried about this. Trying to search through threads to find out about a statutory demand.

 

I welcome any advice on what to do next.

 

thanks very much

 

karen

[karen654321]

Hiya forgot to add that still no cca and the balance they have put on this letter is £98.25

[itsamomentintime]

ho ho. this needs reporting to the OFT as harrassment.

 

they cannot do anything while the account is in dispute.

 

report them immediately.

[rory32]

So they are planning on making you bankrupt for £98.25. Shame the sum for bankruptcy needs to be at least £750. Statutory Demands cost nothing to serve and have been issued like confetti by some DCA's. It would be very easy to set the statutory demand aside on the basis that the debt is disputed. If they do issue a statutory demand as part of your set aside application you should also apply for costs against them.

[Curlyben]

Oh dear.

Time for a final letter.

 

Formal Complaint

Letter before Action

 

Dear Sir/Madam,

 

With reference to my previous letters, I wish to draw you attention to your company's lack of compliance with my legal request.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your purusal and ease of reference.

You have failed to comply with request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

 

As you may not be aware , failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law. Furthermore, if this non-compliance continues for a further month then a summary, criminal offence is committed.

 

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

 

The lack of a compliant credit agreement is a very clear dispute and as such the following applies.

 

* may not demand any payment on the account, nor am I obliged to offer any payment to you.

* may not add further interest or any charges to the account.

* may not pass the account to a third party.

* may not register any information in respect of the account with any credit reference agency.

* may not issue a default notice related to the account.

 

Therefore this account has become unenforceable at law.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40, Protection from harrassment Act 1997 section 3 as well as breaching a number of the OFT Collection Guidelines.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this than merely respond with standard letters and leaflets.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

Yours Faithfully

 

If after 14 days they have NOT responded in any meaningful way then take this further.

Trading Standards would be my first port of call.