Grateful for help Please! Aktiv Kapital in UK pursuing debt in Canada!!

[colourful13]

I am totally new to this kind of forum but see such helpful advice posted – thought I would give it a try as in need of legal advice but cannot afford it!

 

My apologies for such a long post, however, wanted to explain the situation!I moved to Canada from UK 6 years ago. Last year, I received email from Aktiv Kapital saying I owe xxxxxx purchased from mbna.

 

I assigned a third party as a point of contact for all future correspondence to be directed to (I find it too stressful to deal directly).

 

A request for validation of this debt was made – copy of contract and statement.

 

7 months passed – a copy of an application form was sent dated 2002 with no terms or statement of account.

 

I then consulted a UK lawyer who advised to send letter quoting the s78 act and asking for the same information (contract together of statement of account) enclosing one pound (this was sent recorded delivery).2 months later, I merely received same 2002 unsigned application form with ‘Financial and Related Conditions’ very small print, barely legible.

 

No statement was sent. In the same letter, they asked for payment proposals within 14 days. (note: because the letter was posted to Canada, the 14 days had passed before I even received the letter).My contact has sent a ‘holding’ email stating that a letter would follow in due course and that they had set as they had set a precedent for a response time of 7 months, their request for a response within 14 days is ‘unreasonable’.

 

My questions are:

 

Should I wait for them to chase before sending a reply at all? How serious is this? What can they do? Are they likely to sell to the Aktiv Kapital in Canada?

 

The UK solicitor merely said to say they haven’t complied with the act as they haven’t supplied the statement.

 

I feel this is a little tame for a response and have therefore been doing a lot more research and have come up with the following draft response. However, wondering if I should just say they haven’t supplied statement first and then I could send this more detailed letter later?

 

So grateful for any advice Draft letter:No acknowledgment is made of any debt to your company or its clients.Further to your letter dated xxxxxx (received xxxxxx) you have failed to comply with the Section 78 Consumer Credit Act 1974 request made on xxxxxx (further copy enclosed).

 

This includes failure to provide the requested full copy of the “statement of account”, deemed to be that of (Ref xxxxxxx) and therefore not complied with the Act. Under s78(1) CCA 1974, to comply, the creditor must produce a true copy of the alleged original agreement, that contains all of the prescribed terms, current terms as varied or the latest copy of each notice of variation of each term that has been varied, all other required terms and statutory notices and signed by both the creditor and debtor as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments “Together with” a full statement of the alleged account signed by or on behalf of the Creditor detailing all debits and credits (full payment history starting from original creditor to date).

 

The words “together with” means that the creditor cannot send things separately, or piecemeal. They must be sent together, ie at the same time if the creditor is to comply with s78(1).The Consumer Credit Act further states that a creditor must send the agreement within 12 working days of receiving such a request, otherwise they are in default.

 

Furthermore, this default has continued for further month(s) which the Act states “that the Creditor commits an offence”. As such, in respect of the alleged account, you may not demand any payment, may not add further interest or any charges, may not pass to a third party, may not register any information in respect of the alleged account with any credit reference agency or may not issue a default notice.

 

You will be aware that having failed to comply with the above Act and areas under s127(3) CCA 1974, you are not entitled to enforce the alleged debt.

Edited July 9, 2013 by ims21
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[renegadeimp]

Easily sorted. Send the SB letter. http://www.consumeractiongroup.co.uk/forum/content.php?408-Letter-sent-when-debt-is-statute-barred Or ignore them, as its obvious they are trying to evade Uk regulation.

 

Send the letter and ignore everything they send. From your info, they have fed you a ton of rubbish that isnt even based in reality.

[colourful13]

Thank you so very much.... I had made a payment to MBNA on this account, however probably at the beginning of last year. I thought that NO payment for 6 years had to have been made in order for it to be statute barred. I'm not planning to move back to the UK, however, was concerned if somehow they could pass this to the Aktiv Kapital branch in Canada and black mark my name in some way ....? Thanks again, I'm so grateful.

Edited July 9, 2013 by ims21
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[renegadeimp]

When did you make that payment and when was the last time BEFORE, you made the payment? As i said, AK have fed you complete rubbish. They know they cant get you, so they are trying to bluff their way into getting any money from you.

 

Proof of this is their response to a CCA request. Check the time frame from when they recieved the letter, to when they sent a response out. If it was pre april 2007, they would need the original CCA and original terms and conditions when the loan was taken out, AND the T&C's when the account was closed.

[colourful13]

I had been making reduced payments and had not skipped a beat until approx March of last year then told all of a sudden the debt had been sold

Edited July 9, 2013 by ims21
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[renegadeimp]

Gotcha. So the debt isnt SB. My mistake.

 

There DEFINITLEY is something wrong with the debt as they are giving you the run around. My guess is they dont have the correct paperwork, and your debt could be chock full of charges. AK would have bought the debt for a few pence in the pound, and are now greedy enough to try and collect the entire amount.

 

How much is this debt worth, and have you checked your statements for charges etc?

 

It is very rare that they will go anywhere near court for this debt due to the costs involved, they would more likely sell it on.

[BRIGADIER2JCS]

Hi welcome to CAG, Before firing off any letters anywhere, when was the last payment or acknowledgment in writing made to this alleged debt?

Statute Barred = NO payment at any time in 6 clear years, and/or no unequivocal written acknowledgment in the same period.

 

I'm afraid much of what you are stating in the proposed letter has long since been removed from the requirement of CCA 1974 e.g., no offence for non compliance with a CCA request has be gone for a good few years. Also a CCA request should produce a copy of or a reconstitution of the original agreement ( original required for accounts pre April 2007) Non compliance merely means that enforcement action via the courts cannot be stated all normal collection action can continue and they account will be reported to credit reference agencies. The account can be sold or assigned disputed or not.

 

 

The statement required with a CCA request is simply a statement showing the current outstanding balance of the account, further data and full statements can be requested with a Subject Access Request under DPA 1998.

 

I can assure that the letter you propose will be ignored as it has no merit.

 

If you are sure that no payment or acknowledgment as set out above has been made send the following to the COMPLIANCE MANAGER, Aktiv Kapital by post with proof of delivery.

 

Sir/ Madam,

 

ref: use theirs:

 

Sir/ Madam,

 

I refer to recent contact from Aktiv Kapital in regard to an alleged debt for £ xxxxxx. xx in relation to an account with xxxxxxxxxx, please take note I do not acknowledge any debt to Aktiv Kapital or any company it may claim to represent.

 

I have concluded that any such debt is statute barred and therefore I will not be making any payment now or in the future.

 

I am aware of the Limitations Act 1980 and the OFT Guidance on Debt Collection 2003/2012 and the section regarding the pursuit of statute barred debt.

 

I now require Aktiv Kapital to close its file on this matter and to remove all data relating to me from its files with immediate effect.

 

Please do not send your letter as shown in post 1#

[ims21]

Thread moved to the overseas forum which is better suited to your needs.

[ims21]

From what you say, this debt is not statutory barred.

 

While you are waiting for more responses, you might like to have a read of these threads

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?387045-UK-debt-but-Im-Canadian-living-in-Canada

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?385548-Turnover-rockets-at-Aktiv-Kapital

 

and post #5 in the following thread

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?307714-Prohibited-Collection-Practices-In-Canada-(Harassment

[BRIGADIER2JCS]

Emm moved to Canada 6 years ago 2002 app form supplied AK contact last year. MBNA old accounts surfacing daily with DCAs such as AK, virtually all have prove to be statute barred.

[BRIGADIER2JCS]

What we don't know is has there been 6 years no payment prior to the one off last year????

[citizenB]

for an s78 to have been complied with, your solicitor is correct..

 

copy or truthful reconstruction of the agreement

terms and conditions from both inception and at default or currently

Statement of account to show default/penalty charges.

 

and they are to be produced together (in one pack)

 

I think there may also be a question of legibility.

[citizenB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?250889-Can-I-Be-Sued-For-An-Overseas-Debt

 

Another link that you might find useful.

[citizenB]

the first link that was provided by ims21 in post # 9 has some interesting and useful information regarding your living in Canada

[ims21]

What we don't know is has there been 6 years no payment prior to the one off last year????

 

Post #5

 

I had been making reduced payments and had not skipped a beat until approx March of last year then told all of a sudden the debt had been sold

 

OP's comment suggests that they had been paying reduced amounts regularly. Perhaps OP could clarify?

[BRIGADIER2JCS]

Thank you for the clarification.

[colourful13]

Thank you to all for comments/advice - The amount claimed owing is approx. 5,000 GBP - don't know how it is made up as they did not supply the requested statment.My concern is that they sell this to Aktiv Kapital in Canada and if they do so will that affect my credit rating here?In terms of payments: I had never missed any payments to mbna - then went on to a reduced payment scheme approx 1.5 years ago then at beginning of last year they appear to have sold the debt to Aktiv. I have not acknowledged anything with Aktiv, they do not have my address.

Edited July 9, 2013 by ims21
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[renegadeimp]

As i said previously, something definitly isnt right. The creditor wouldnt have sold a 13k debt. They would have taken you to court a long time ago. You could SAR them, because chances there there are tons of penalty fee's on it.

[colourful13]

Thank you renegadeimp - when I was negotiating a reduced payment with mbna - they did say that it was likely it would be sold on to a third party. After reduced payment was agreed upon, the account was frozen and interest frozen also. I didn't miss any payments.Not sure whether to 1) ignore for the moment and see when they send a chase email to my point of contact2) my point of contact send letter saying they haven't complied with the act because they haven't send the statement together with agreement and termsor 3) send this SAR (this is new to me...).thank you

Edited July 9, 2013 by ims21
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[renegadeimp]

IMHO, the best court of action would be to ignore for now. Can i ask if they have your residential address? Or just your email?

 

Regarding the statement made by MBNA, why would they sell a debt worth 13k? Especially since new owner would have probably paid less than 10% for it?

[colourful13]

Aktiv Kapital have my email address only - I had said that all future correspondence to via my assigned point of contact - they have an email address and an address for that contact. They do not have my address in Canada. MBNA did not ever have my address in Canada either - I used to correspond via email and they had my work address (no longer event work there).In terms of why they sold the debt - I assumed it was because they were only receiving reduced monthly payments and no interest.Thank you renegadeimp.

Edited July 9, 2013 by ims21
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[renegadeimp]

Then my honest advice for now would be to ignore. Theres a whole load of procedures to go through to get any kind of collection activity going in canada, and you will be notified long before that all starts.

[colourful13]

ok - thank you renegadeimp - I will park this for now.the last communication to them will therefore be the holding email from my assigned contact stating that they will receive a letter in 'due course' and pointing out that they have set a precedent of 7 months! I will check back in here as/when/if I get a response.In the meantime, I'm presuming it is not necessary to point out again that I'm not a resident of the UK as I've read somewhere that they sometimes just try to slap a CCJ on your last known UK address..... MBNA knew that I was in Canada obviously and the postal address for my assigned contact is in Canada....

Edited July 9, 2013 by ims21
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[renegadeimp]

They could try that to get a CCJ, but it is very very easily defended, as you were not living there and infact werent resident in the UK. As you state, they know you arent in the UK, so if they try and get a CCJ like that, they would be in trouble.

[colourful13]

OK - I hang fire for now then and if they come back chasing payment proposals i assume I then send them a letter saying they haven't complied with the act as they haven't supplied statement of account... or are you recommending a completely ignore?