Elsinore v Aktiv Kapital **WON & PAID**

[elsinore]

CCA letter sent special delivery to AK today, requesting copies of original loan agreement, detailed statement and deed of assignment, also second request for personal information. Default date will be 5th July.

 

Elsinore

[mahala]

I shoukd get your complaint letter to Trading Standards ready now. I imagine you;ll need it,

[elsinore]

Response received from AK 30th June.

 

Three bits of info included:-

1.A summary of payments that I have made to them (which I already knew!)

2.A diary of calls/letters between us.

3.A printout of their debtor maintenance record.

 

Covering letter states that they have 'requested a copy of the agreement from the original vendor (sic!) which will be sent under separate cover at a later date'. No mention of the deed of assignment, which they clearly do not have.

 

They have until Wednesday.

 

Elsinore

[elsinore]

Letter from AK received yesterday.

 

'Please find enclosed a copy of Lloyds TSB's reply to our request for a copy of the agreement'.

 

To Aktiv

From Lloyds TSB Consumer Debt Recovery

Please be advised that this account is now 2 old for copy Application - we legally only have to keep for a reasonable amount of time, we hold copy documents for 5 years.

Thank you.

 

 

 

No, thank you!!!

 

Elsinore

[elsinore]

I am proposing to send the following to AK, but would very much like comments, especially from Alanfromderby who has special knowledge of this subject.

 

'In your first letter to me dated 16th December 2005 you stated that you had been assigned the rights to the above account by Lloyds TSB. My letter dated 20th June 2006 required you to send me a true copy of the deed of assignment between LloydsTSB and yourselves, which you have failed to do.

 

You were also required to supply a true copy of the alleged agreement relating to the above account, but were unable to do so because no such agreement exists.

 

You were further required to provide a complete statement of account including the period prior to your acquisition of the account, which you have failed to do.

 

Consequently I do not acknowledge any debt to your company.

 

Your non-compliance with my request means that you are now in default. By 21st July 2006 you will have committed an offence under the Consumer Credit Act 1974 which may result in a report being submitted to the relevant statutory authorities, i.e. Trading Standards and the Financial Services Authority.

 

A credit agreement that is not properly documented and signed by the customer is totally unenforceable under the Consumer Credit Act and is therefore a complete defence to any court claim that is issued. Please take note that any legal action you may contemplate will be vigorously defended and contested.

 

I now require you to

 

• cease and desist from making any further demands for money from me
  
• refund to me the sum of £300.00 being the total amount paid to you during the last six months, and
  
• arrange for the removal of the default in the sum of £4072 which was placed with the credit reference agencies in March 2003.

Failure to make restitution to me as described above will result in my seeking redress through the courts and reporting your several breaches of regulation to the relevant authorities.'

 

Elsinore

[alanfromderby]

My personal opinion is that this letter would be better sent after 21st July when they have committed an offence. You can then use that as leverage for them to comply with your requests.

 

However, the letter seems fine otherwise, and it will be interesting to see how they handle it. AK do tend to play hardball when they can, but it looks like you have them well cornered.

[elsinore]

Many thanks, Alan. I'm going to take your advice and wait. It will be hard, but I agree about the extra leverage. Fortunately the next payment is not due until 23rd July, so I hope they do nothing in the meantime!

 

Elsinore

[kyuudousha]

I like your letter, may I copy and paste for future use against AK?

 

I really, REALLY like the idea of suing them for my money back...

 

HA HA HA HA HA HA

 

I think the default date is 21st August for second letter (original sent on 24th July). Can you keep me posted as to how you get on?

 

Good luck!

 

Kyu

[elsinore]

Hi kyu, be my guest. There's no copyright on anything I post, but nice of you to ask:) .

 

The finished version has been sent, I'll post it later. Server problems at the moment, so have come home to pick up messages (sigh)!!

 

Elsinore

[kyuudousha]

Thanks, I'd be lying if I said I hadn't already done it...

 

Just a thought, I'm not sure if you've been following the thread on my CCJ but, if AK had no paperwork to support that I owe them the money, does that mean that they had no right in getting me a CCJ?

 

Interesting one that.

[alanfromderby]

If it was AK that took out the CCJ, then you could apply to have it set aside on the basis of new information, providing that you do have a valid dispute over the debt - this can just be based on possible unlawful charges.

 

However, if the judgement was obtained after you attended a hearing, it is more difficult than if it was entered in default or was undefended.

[elsinore]

Letter sent to Aktiv Kapital today.

 

 

In your first letter to me dated 16th December 2005 you stated that you had been assigned the rights to the above account by Lloyds TSB. My letter dated 20th June 2006 required you to send to me a true copy of the deed of assignment between LloydsTSB and yourselves, which you have failed to do.

 

You were also required to supply a true copy of the alleged agreement relating to the above account, but were unable to do so because no such agreement exists.

 

You were further required to provide a complete statement of account including the period prior to your acquisition of the account, which you have failed to do.

 

Consequently I do not acknowledge any debt to your company.

 

Your non-compliance with my request means that you are now in default. By 21st July 2006 you had committed an offence under the Consumer Credit Act 1974 which may result in a report being submitted to the relevant statutory authorities, i.e. Trading Standards, The Financial Services Authority and The Information Commisioner. You have also contravened section 3® of the Code of Practise of the Credit Services Association, of which you are a member.

 

A credit agreement that is not properly documented and signed by the customer is totally unenforceable under the Consumer Credit Act and is therefore a complete defence to any court claim that is issued. Please take note that any legal action you may contemplate will be vigorously defended and contested.

 

I now require you to

 

• cease and desist from making any further demands for money from me
  
• refund to me the sum of £XXX being the total amount paid to you during the last six months, and
  
• arrange for the removal of the default in the sum of £XXXX which you placed with the credit reference agencies in March 2003.

Failure to make restitution to me as described will result in my seeking redress through the courts and reporting your several breaches of regulation to the relevant authorities. You have until Tuesday 8th August 2006 to confirm that you have carried out the above requirements, failing which I shall institute proceedings against you without further notice.

 

Yours faithfully

 

 

Elsinore

[kyuudousha]

If it was AK that took out the CCJ, then you could apply to have it set aside on the basis of new information, providing that you do have a valid dispute over the debt - this can just be based on possible unlawful charges.

 

However, if the judgement was obtained after you attended a hearing, it is more difficult than if it was entered in default or was undefended.

 

My situation is exactly as described in Elsinores letter to AK posted above.

 

In other words:

 

In your first letter to me dated 16th December 2005 you stated that you had been assigned the rights to the above account by Lloyds TSB. My letter dated 20th June 2006 required you to send to me a true copy of the deed of assignment between Lloyds TSB and yourselves, which you have failed to do.

 

You were also required to supply a true copy of the alleged agreement relating to the above account, but were unable to do so because no such agreement exists.

 

You were further required to provide a complete statement of account including the period prior to your acquisition of the account, which you have failed to do

 

Therefore a legitimate agreement does not exist between myself and AK.

 

Therefore they had no right in issuing a CCJ to me.

 

Oh, and I never attended a hearing.

 

Does that sound reasonable?

 

I realise that this will not be a stroll in the park but to my mind it may be worth trying.

 

AS FOR YOU ELSINORE:

 

SOCK IT TO 'EM!!!

 

Kyu

[kyuudousha]

Sorry to tag this on the end here but AK ststes that:

 

'requested a copy of the agreement from the original vendor (sic!) which will be sent under separate cover at a later date'

 

Does this mean that if the original agreement DID arrive from Lloyds TSB that you would not have a case against them?

 

Do you need to have an agreement between YOU and AK for this to be legal and binding?

 

I'm asking because TF might be able to supply AK with the original agreement for my case...

[alanfromderby]

If you ask AK for the agreement, then AK must supply it. The question is as to whether AK have a legal entitlement to chase the debt, not whether the original creditor has the agreement.

[kyuudousha]

If you ask AK for the agreement, then AK must supply it. The question is as to whether AK have a legal entitlement to chase the debt, not whether the original creditor has the agreement.

 

But is that an agreement between myself and AK?

 

I know for a fact that there isn't one.

 

Therefore does AK have a legal entitlement to chase the debt?

[alanfromderby]

No, in order for AK to be legally able to chase the debt they have to supply you with a copy of the original agreement between you and the original creditor.

 

If they have legal title to the debt, then they should have the documents - which should include the original contract, and the deed of the assignment, which should show the exact date that it was transferred to them.

[kyuudousha]

Okay, thanks for that.

 

What happens if they have to write off to Tricity Finance then for the original documents as per Elsinores post #4 in this threa? Does that mean I have a case?

 

To be honest, I'm not overly bothered with how tenuous the case is as long as it would show enough confusion to at least make getting the CCJ set aside a worthwhile try...

 

I'll sit back and wait to see what happens in the meantime...

[MARTIN3030]

mnn

 

Right I got clarification today that an offence has only been committed one month after the 12 days.

This means in your case 5th AUGUST.

I know these are supposed to be heavyweights but no one seems to have taken them to task.............in fact of the 20 or so dca related forums I have been on .......no one seems to be taking ANY of them on.

 

Its as you repeatedly say.....time to turn the tables and start to nail em

 

[elsinore]

mnn

 

Right I got clarification today that an offence has only been committed one month after the 12 days.

This means in your case 5th AUGUST.

 

I'd be interested to know where you got that info please. I thought I had that one covered by advice on here and other threads:confused:

 

Elsinore

[MARTIN3030]

Further to your email to my colleague regarding your ongoing debt

collections complaint I write in response to the issues you have raised.

 

Capquest

Copy of deed of assignment. You state that you do not believe the copy is

genuine. If this the case you will need to speak with the police as this

would be fraud.

Re default certificates. I understand that the trader can only enforce a

breach of a credit agreement after a default notice has been issued. If

the trader is unable to provide you with a copy of this notice then I

would suggest that technically you would not yet be in default until they

do provide you with the notice. Please see section 87 of the Consumer

Credit Act 1974 for further information.

 

Hillesenden Securities.

As previous advised. According to the Consumer Credit Act 1974, the

trader is required to provide you with a copy of your credit agreement

within 12 working days from date of your letter requesting it. The trader

would not be committing an offence under this Act until 1 month after the

12 working days. If you had sent the request on the 5th July the 12

working days would end on the 21st July and the 1 month will not have

expired until the 21st August.

 

I trust this information is helpful to you.

 

Regards,

 

 

Angela Chow

Fair Trading Officer

St Helens Council

Wesley House

Corporation Street

St Helens

WA10 1HE

T: 01744 456 305

F: 01744 456 590

 

 

There we are then..........straight from Trading Standards themselves.

I thought I had it covered too,and makes one look a little foolish when you send letters out (in this case a little premature)

 

Still everyone is allowed to make 1 mistake in life........at least now we know.

And it would explain to me the delays in the dcas sending info.....they obviously are aware of the timescales too !!

 

[elsinore]

Thanks Martin. I hope that, as they haven't yet responded, they won't have noticed the error (fingers crossed).

 

 

Still everyone is allowed to make 1 mistake in life

 

Blimey!! I'm into three figures!!:o

 

Elsinore

[kyuudousha]

Only three figures... *sigh*

 

MARTIN3030: What made you suspect that the deed of assignment was not genuine?

[elsinore]

Letter received from AK on 2nd August 2005

"31st July 2006

Reference XXXXXXXX

Account Number XXXXXXXX

Balance XXXXXXX

We refer to your recent communication regarding this account and advise that your comments have been noted.

We can confirm that, as previously advised your original creditor has informed us they are unable to supply a copy of the original agreement in view of the age of your account which commenced in 1997.

However, we advise you have admitted liability for the account both prior to and since assignment to ourselves and we attach statements of payments made to an agency Robinson Way prior to assignment to ourselves in December 2005.

Also attached is a true and certified copy of the assignment letter issued to you by ourselves in December 2005 and upon which you have been making payments during the period February 2006 to date. We are unable to refund any monies on the account in view of your admission of liability as detailed above.

We trust this clarifies the matter and that your payments will continue as of August 2006."

That’s it! The letter is not addressed ‘Dear Sir’ or ‘Dear Mr Elsinore’ and there is absolutely nothing after the final sentence, no ‘Yours faithfully’, no name, no signature.

There are three pieces of paper attached to the letter:

• A list of payments made to Robinson Way between August 2003 and August 2005 (these payments were in respect of a completely different account, of a different type, which has been settled.)
  
• A copy of their initial letter to me which has been annotated in handwriting ‘True and certified copy of letter issued to yourself on 10th December 2005’ and signed with an illegible signature.
  
• Someone else’s information about loan repayments, clearly sent to me in error!!

I’ll post some comments after I have finished shaking my head in disbelief, which will be about Saturday!

Elsinore

[elsinore]

Hi karne. Yes, it's hard to understand how a business with international connections and, presumably, intelligent directors and managers, can behave so ineptly.

 

They haven't addressed any of the points raised in my last letter to them, except, of course, the request for repayment!

As for the 'letter of assignment', well it's just laughable, isn't it?

I'll post a draft of my response in due course.

 

The 12/30 days discrepancy has been picked up in another thread and I'm hoping that someone (alanfromderby?) will be able to nail it definitively soon.

 

Elsinore