aktiva capita Cannot Supply The Original Agreement

[MoonHawk]

I have an interesting one from Aktiv Kapital.

 

1) End of May I sent them a CCA request.

2) Recieved letter saying thay can not provide me with the information as they hold limited information and will resume collection in one month if no letter from me.

3) Sent them a letter saying they still need to provide me with the info under the CCA and "Your obligations under the Consumer Credit Act and the OFT guidelines were to ensure that a signed copy of an agreement relating to the alleged debt was given to you at the time when you acquired the debt."

4) Received anothe letter saying no they do not need to as they are not the original creditor.

5) Wrote back saying that under section 189 of the CCA they are still responsible and I even quoted them section 189.

 

I have now received a very odd letter in which they state that the CCA does not apply to them:

 

As you are aware we have explained our position to you on previous occasions and this remains unchanged.

 

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. What??? Pursuant to section 136 Law of Property Act 1925, we are entitled to collect / sue for any entitlement that remains due under the agreement.What agreement?

 

You have made no complaint, and you have no grounds for complaint, consequently this reply does not constitute a response to a complaint and is our final response in this matter.

 

No further correspondence will be entered into with you.

 

It is therefore in your best interest to contact us to discuss the terms of settlement within the next 10 days.

 

I am not sure how they reckon section 136 Law of Property Act 1925 over-rides CCA and how they can purchase the rights but not duties of a creditor.

 

Any comments on a response would be appreciated.

 

Best Wishes

MoonHawk

[JonCris]

Moon They may be aware of section 189 but they probably hoped your were not. Anyway they are liable. In fact if the purchased they debt they may be liable for the repayment of any penalty charges.

 

Should they issue proceedings they WILL be required to provide a 'signed' properly executed agreement, original creditor or not.

 

Also if they are attempting to enforce a debt that is unenforceable they are in breach of the OFT guidelines & could bring their fitness to hold a license into question.

 

ALSO they could be guilty of criminal harassment.

 

Did you ever get a 'notice of assignment' from the creditor. If not any action will fail on that alone.

 

I suggest you S.A.R - (Subject Access Request) the original creditor as you don't want them to produce a 'notice of assignment' retrospectively

[ian1969uk]

We've had this one before, I think the general consensus was that's it's crap.

 

They would still need a signed cca to enforce in court.

[MoonHawk]

Thanks Jon and thanks Ian.

 

I did not get one from the creditor but did get one from Aktiv saying that it has been assigned to them.

 

Maybe I should refer them to read Wilson v. Secretary of State for Trade and Industry (2005) (thanks to Josie8 on a couple of other threads).

 

Best Wishes

MoonHawk

[chancer1]

Hey Moonhawk -

 

this is a weird one, i too was approached by AK about 4 months ago, it was for a supposed Barclays debt - I asked for my copy of the original CCA.

 

They replied, all be it 4 weeks later, advising that they were unable to produce this document and therefore were not going to chase the debt. (It was a few thousand)

 

It seems they have changed their tactics - maybe too many people asking for CCA's????

[MoonHawk]

Thanks Jeff. That was most useful

 

After looking through the Cabot threads and with the help of tomterm8 (thanks tom) I have put together the following letter:

 

Thank you for your letter explaining that your position is unchanged on this matter.

 

In your letter you stated:

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.

I am confused as to your reference to section 136 Law of Property Act 1925, since this section only relates to an absolute (otherwise known as legal) assignment of all rights and duties under a contract or agreement.

 

I am aware than, under the Consumer Credit Act 1974 all parties to a contract are required to be included in any litigation, and (in the event of an equitable owner suing) I would apply for the original creditor to be included as a defendant in the litigation.

 

In any case, as you are well aware, nothing in the consumer credit act or any other legislation entitles you to sue while the original creditor is in default of their obligations under the Consumer Credit Act 1974.

 

I trust that you will ensure that the original creditor provides the documentation I have requested before you engage in any further collection activity.

 

I must also inform you that I have been advised, by the Trading Standards, that your claim regarding your duties are erroneous and misleading. They have confirmed that all credit agreements are regulated by the Consumer Credit Act. I refer you to Wilson v. Secretary of State for Trade & Industry [2005] for clarification on this fact. I have also been advised to forward your letter to the Office Of Fair Trading for consideration of your licence renewal.

 

Best Wishes

MoonHawk

[Jeff2000]

Thanks Jeff. That was most useful

 

After looking through the Cabot threads and with the help of tomterm8 (thanks tom) I have put together the following letter:

 

 

 

Best Wishes

MoonHawk

 

 

Hi Moonhawk,

 

 

It looks OK to me!!!

 

 

Jeff.