Elsinore v Aktiv Kapital **WON & PAID**

[MARTIN3030]

Its 12 working days then 1 month after that..........potentially giving them much longer than anticipated.

 

Elsinore the fact that you made payments to Robinson Way does not in itself prove you admitted liability.......theres the question of bully boy tacticts and their threats in their letters....which prompted you to pay.

If the debt was construed in part/wholly arising from penalty charges,then at the time you would not have known that they were unlawful .

 

Its not your duty to prove you did not get any paperwork......its their duty to prove you did !!

 

One of the dcas 1 am dealing with has stressed that I was sent copies of default notices......and as there was no mail sent back to them I must have got them.......they are saying that it is a matter I should take up with the post office..

Now if they had sent this stuff recorded they could argue on that point.

 

Theres widespread abuse of documentation frauds by these people I have heard of them copying bank logos onto letters and transposing one part of one letter onto another :o

 

I would love to take them to court and ask the Judge (of course at his discretion)

to force disclosure.......theres not a chance these people could produce this stuff in court it would probably lead to a few criminal charges for THEM

[elsinore]

The discussion re 12/30 days is here

http://www.consumeractiongroup.co.uk/forum/debt-collectors-bailiffs/3525-debt-collection-agencies-17.html

 

It looks like MARTIN3030 has it right.

 

However, as AK completely ignored the point, I won't be losing any sleep over it.

 

Elsinore

[elsinore]

I'm going to postpone any answer to AK (their letter doesn't deserve an answer anyway) at least until I have the SAR info from LTSB.

 

I am also sending another SAR to LTSB relating to the settled account. When I have both responses (with whatever they might bring) I will then decide the next move.

 

I won't be making any more payments to AK.

 

Elsinore

[MARTIN3030]

logical.

 

I am of the same opinion.

I have 2 letters which I did and sealed ready to post.

Then I thought why ?

 

Like you I know they dont even read them properly.

 

Would rather spend time doing something you know will get a result.......like filing the next moneyclaim ha ha

[elsinore]

Yeah, Martin, like starting the next one, me v Citi Cards (and their little friends Mackenzie Hall). I notice they appear on your list of targets!! I'll have look at your thread and pick up some tips;)

 

Elsinore

[MARTIN3030]

ohhhhhh I have left them till last as I am still studying their tricks.

my last dealings were them sending me a letter telling me they would payanything over 12 quid but keep the 12 quid as ofts told them its ok.

 

Latest one is one from today.The person has filed mc.

Citi have sent him a chq for all the 12 quid differences but he still needs to send the aq.

They are claiming not to have rec his schedules.

 

This is one we should both watch its in Citi threads.

 

[elsinore]

Thanks, I just read your thread and posted there.

 

It's the same old story, isn't it? Damage limitation. Less determined folk will accept their offer thus mitigating the payout. But they reckon without BAG:D

 

Elsinore

[MARTIN3030]

Thanks, I just read your thread and posted there.

 

It's the same old story, isn't it? Damage limitation. Less determined folk will accept their offer thus mitigating the payout. But they reckon without BAG:D

 

Elsinore

 

 

 

it certainly is........and they cretainly have.

 

 

[elsinore]

This letter sent today, copy sent to Chester TS (AK's local office).

Lancashire County Council

Trading Standards

58 - 60 Guildhall Street

Preston

Lancashire

PR1 3NU

14th August 2006

Dear Sir

 

COMPLAINT UNDER SECTION 78(1) CONSUMER CREDIT ACT (1974)

 

I submitted the enclosed notice under Section 78(1) of the Consumer Credit Act 1974 to Aktiv Kapital on 22nd June 2006 in respect of an alleged debt to them (their reference xxxxxx). To date Aktiv Kapital has not responded to this notice as required by law in that they have not supplied a coy of the alleged original signed agreement nor a copy of the alleged deed of assignment from Lloyds TSB Bank plc. As more than 30 days have now elapsed since they defaulted, Aktiv Kapital has committed a criminal offence and I wish to submit a formal complaint to you.

 

I would be obliged if you confirm what action you propose to take in respect of this matter.

 

Yours faithfully

Elsinore

[MARTIN3030]

2 things here Elsinore.

 

 

It has recently been bandied about that there is no legislation that actually states deed of assignment.

However you would be justified in asking for proof of debt transfere/ownership.

 

Second point.........they are allowed 1 month and I know this might seem unimportant but the difference is 1 day .......

 

I hope you have some luck with these,and as previously advised I too am awaiting info from them for the same request.

Chester trading standards have asked me for the full details as its in their area and by all accounts these people are no strangers to TS in Chester..........:o

[elsinore]

2 things here Elsinore.

It has recently been bandied about that there is no legislation that actually states deed of assignment.

However you would be justified in asking for proof of debt transfere/ownership.

 

Now you've reminded me I vaguely remember seeing that point. Probably read it when I was tired and emotional late one night! I just used the template letter.

As we all know AK are not very good at reading, so I hope I'll get away with it.

 

Second point.........they are allowed 1 month and I know this might seem unimportant but the difference is 1 day .......

 

Well, I thought I had it right, taking into account your correction re 14+30 days/one month.

Original CCA letter posted 21st June.

Allow 2 days for delivery, 23rd June.

14 days up on 7th July.

1 month up on 7th August.

 

Elsinore

[kyuudousha]

I have found something on 'Deed of Assignment' in the Cosumer Credit Act.

 

I will search for it again and try to find it for you, unfortunately though my (ever growing) file is at home and I am at work.

 

It does state that a debt when being sold on needs to be 'assigned'.

 

Sorry not much help at the moment but when I find it I'll post the relevant section numbers and so on from the CCA.

[MARTIN3030]

good.

 

Would be nice to have this confirmed.

 

I cannot for the life of me remember where the original source stating this document should be available for inspection,came from.

 

[kyuudousha]

This might be of some help... I've not read it all yet.

 

http://www.competition-commission.org.uk/rep_pub/reports/2006/fulltext/final_report_app_7-9.pdf

 

When I get home I'll dig out the one I highlighted and post it on here first thing in the morning.

 

Sorry, I forgot.

 

DOH! Will dig it out tonight and have a look. It is definitely in the CCA 1974 because section 189 is a glossary and assignment 'features' in there...

[kyuudousha]

Have a look at the Defaults Guidance - DPA 1984 Section 48 The Assignment of Debts on Defaulted Accounts

 

 

I still haven't found it in the CCA so I'm wondering if this is where I saw it...

[bigdave1985]

i wonder if anyone could help me???

i have been reading with great interest your account of getting your money back from banks and was seeking your advice.

i have sent a letter to barclaycard asking for details of charges and or bank statements going back the last 6 years! they have sent me details going back to march 2005 and say i will have to pay £3 per statement for the rest as it is stored on a microfich or something like thta. can anyone advise me if they are allowed to do this? and if now what can i do next. please email me on this address (david . seale @ ntlworld . com) withouht spaces as your help and advice wo9uld be much appreciated!

thanx

[MARTIN3030]

Dave welcome to the site.

Theres no reason why you should not discuss that here........this is an open area and sending e mails is not really helping others who may be looking for the same advice.

 

The Barclays Statements issue is not new.

If you take some time to read the faqs and then have a look at some Barclays threads you will get the answers.

 

There are far more important issues to know about than Barclays statement requests.

 

 

In the main........learning about the whole process will help you all the way !

 

[brandedcentaur]

ohhhhhh I have left them till last as I am still studying their tricks.

my last dealings were them sending me a letter telling me they would payanything over 12 quid but keep the 12 quid as ofts told them its ok.

 

Latest one is one from today.The person has filed mc.

Citi have sent him a chq for all the 12 quid differences but he still needs to send the aq.

They are claiming not to have rec his schedules.

 

This is one we should both watch its in Citi threads.

 

 

Hello guys,

 

I have been following this thread with interest. I feel I need to correct something which has been said here as I read about it in another thread or at least in this forum.

 

The OFT did NOT say it was okay for anyone to charge £12. What they actually said was that they would not take action on anything less than £12. That does NOT mean that it is okay to charge £12 - you can STILL claim those back.

 

Correct me if I am wromng please, but I feel that this is a common assumption which needs to be addressed.

 

Good luck with your struggle Elsinore, I'm cheering you on (as I'm sure the rest of us are)!

[elsinore]

Reply recieved from my local Trading Standards office.

 

"Thank you for your letter regarding Aktiv Kapital. In order that we can advise you appropriately, would you kindly confirm whether you have, or have ever had an agreement with Lloyds TSB Bank plc. In addition would you send a copy of all correspondence between yourself and Aktiv Kapital with a brief chronology of events relating to your case.

Once we have considered your complaint in more detail, it may be useful for us to discuss your complaint over the telephone. With this in mind, would you also be so kind as to provide me with a contact telephone number".

 

I will comply with their request and post progress as and when.

 

Meanwhile, AK can stew, at least until I have the remaining info on the original debts. One proved to be all charges which I have today reclaimed (see sig)

 

Elsinore

[rss1979]

.........."Thank you for your letter regarding Aktiv Kapital. In order that we can advise you appropriately, would you kindly confirm whether you have, or have ever had an agreement with Lloyds TSB Bank plc.................

 

Hmmm, don't know how happy I would be about supplying that.....surely it's up to AK to supply the agreement. My concern would be that, after admitting an agreement with LTSB, TS would be less willing to support your complaint.

 

If you can prove that a DCA is pursuing you for a debt they cannot verify then TS should offer help! It's that simple, isn't it?

 

I am going through a very similar situation with 1st Credit....

 

Best of luck and good hunting ;-)

[elsinore]

I'm not supplying the agreement to TS rss1979, merely confirming that I once had one. I couldn't anyway because i don't have it (and neither do AK!).

 

I interpret TS's question as wanting to distinguish between a complainant who never had a debt and one who ostensibly did have a debt.

 

I don't have a problem telling TS the truth. If I genuinely owe any money I will pay it (to the original lender). The alternative is to lie and be caught out.

 

The issue is that AK attempted to extract money from me unlawfully and then committed a CCA offence by failing to comply.

 

If, in the event, TS choose not to pursue the matter, well so be it.

 

Good luck with that other bunch of sharks, 1st Credit!

 

Elsinore

[kyuudousha]

2 things here Elsinore.

 

 

It has recently been bandied about that there is no legislation that actually states deed of assignment.

However you would be justified in asking for proof of debt transfere/ownership.

 

Second point.........they are allowed 1 month and I know this might seem unimportant but the difference is 1 day .......

 

I hope you have some luck with these,and as previously advised I too am awaiting info from them for the same request.

Chester trading standards have asked me for the full details as its in their area and by all accounts these people are no strangers to TS in Chester..........:o

 

Okay then, I have finally found it under the CCA 2006:

 

21 Interpretation of ss.140A and 140B of the 1974 Act

 

After section 140B of the 1974 Act (inserted by section 20 of this Act) insert -

 

"140C Interpretation of ss. 140A and 140B

 

(1) iN THIS SECTION AND IN SECTIONS 140a AND 140b 'credit agreement' means any agreement between an individual (the 'debtor') and any other person (the 'creditor) by which the creditor provides the debtor with credit of any amount.

 

(2) References in this section and in sections 140A and 140B to the creditor or to the debtor under a credit agreement include

 

(a) references to whom his rights and duties under the agreement have passed by assignment or operation of law;

 

Although I don't think this will help much I'm afraid.

 

(b) more guff in here and so on.... "

[elsinore]

Copies of all correspondence between myself and AK sent to TS, together with covering letter summarising events so far.

 

Elsinore

[elsinore]

This is the letter I sent to TS on 31st August:-

 

Thank you for your letter dated 17th August 2006.

 

I confirm that I did, at one stage, have three accounts with Lloyds TSB Bank, a personal account, a business account and a loan account.

 

In December 2005 I received a letter (A) from Activ Kapital. I had no previous knowledge of this company. Their demand, for repayment of £3172.50, was followed up by them, in January 2006, with telephone calls insisting on repayment. At that stage, I was unable to confirm or deny that I did or did not owe the sum claimed. I was fairly sure in my own mind that I had paid most of the outstanding balance but, in the face of Aktiv Kapital’s approach, I decided to comply, until I was able to prove otherwise. At this point I was unfamiliar with the techniques practiced by Debt Collection Agencies and believed that compliance was the only way forward. Nevertheless, I was uneasy about the arrangement and decided to request information from Aktiv Kapital to test their contention that a) I owed so much money and that b) they had a right to demand it.

 

I wrote to Aktiv Kapital in May (B) requesting information. They responded with letter © which did not impart any information.

 

In June I wrote again, a more formal letter (D). This time their response (E) yielded some information. However, they were unable to produce a copy of the original agreement and confirmed that they had requested it from the original lender, Lloyds TSB.

 

A week later, Aktiv Kapital wrote (F) to confirm that Lloyds TSB were unable to provide the original agreement. Aktiv Kapital had made no mention of any deed of assignment.

 

Consequently, I wrote a further letter (G) drawing their attention to their non-compliance with my requests and setting out three requirements.

 

Their response, dated 31st July (H) is miserably inadequate, in that

• it addresses none of the points raised in my previous letter
  
• new information was sent, which should have been forthcoming previously
  
• they confirmed their inability to produce the original loan agreement
  
• they enclosed someone else’s information
  
• they enclosed a fabricated letter of assignment, and
  
• their letter was unsigned!

By then I had received information from the original lender, Lloyds TSB, which led me to believe that I had probably already paid all I needed to settle the debts. I am still waiting for final confirmation from Lloyds TSB but, in the meantime I have requested repayment of unlawful charges that they made to my accounts. Whether or not I owe Lloyds TSB any further sums is irrelevant to my complaint. If I do indeed owe money, then it will be paid

.

Aktiv Kapital set about claiming money from me without being in possession of the required documents; they failed to offer up information on request; they misinformed me; they failed to comply with a Consumer Credit Act requirement to supply information in the prescribed period.

 

I will be happy to discuss this matter further if you require it. Contact numbers are listed below.

 

Yours sincerely,

Elsinore

 

and this was their reply

 

Dear Elsinore,

Further to your letter dated 31st August 2006 concerning Aktiv Kapital and Lloyds TSB I would make the following comments and observations.

 

While we are happy to advise and guide on any consumer dispute there does need to be openness and transparency in the information provided. It is clear that you have or had a debt with Lloyds TSB and that this debt has been assigned by them to Aktiv Kapital. Whether this has been carried out correctly and whether the debt can be pursued depends on a number of factors which need to be explored.

 

I would suggest that it is in your interest to set out clearly your understanding of the arrangement you had with Lloyds TSB and the way the various accounts were managed and acted upon by you and by the bank. I am reluctant to speculate on the detail, but you accept you had a current account, an overdraft facility and a loan.

 

The current and overdraft facility while requiring being documented and referenced are normally covered by the banks standard terms of business which are accepted by you when the facilities were initiated. There is no necessity for the agreement to be specifically documented. The Consumer Credit Act S74 specifically excludes and covers this point. Similarly it should be noted that for an overdraft facility the provisions of S87 in respect of a default notice are not applicable. Facilities of this type can be immediately called in without the normal 7 day notice required by S76 of the Act.

 

The critical area where there could be some irregularity is in respect of the loan.

 

This should have been separately documented and you should have been provided with a copy of the agreement at the time it was signed. While you are correct that you are entitled to a copy of the agreement the term “copy”, under the provisions of the Consumer Credit Act, does not require it to be a facsimile or exact replication of the loan agreement originally signed. Specifically the copy can exclude signatures and dates of signatures. In effect there is nothing to stop a lender providing a document from the information he has recorded in his records in another format so long as the “copy” is recreated and has the necessary information that would have been in the original.

 

I can understand and accept that there is going to be a dispute as to the way the original debt was made up. It is consequently essential that you clearly and specifically split the debt between the overdraft and the loan. If you maintain you have paid the debt then you must ensure that you clearly explain how you have done so.

 

I am concerned that as you have clearly had these facilities at some stage that you need to be clear as to whether you made any agreement with the bank for payment. As the overdraft facility is one outside the normal documentary requirements of the Consumer Credit Act I would want to know that the increase in facility was not agreed to discharge the outstanding loan. If you did not agree to an increase in your overdraft, if you were in default on the loan, then you should have been sent a default notice.

 

Inrespect of the overdraft the amount owing can be immediately demanded and any lender will have the right to assign the debt to a third party. With respect to the loan, where you have a valid argument, it is essential that there is a clarity as to exactly how it was managed and how the default was handled. If you agreed to the outstanding sum being transferred to your overdraft facility then I am afraid you will find it difficult to challenge the right of the bank or the assigned company pursuing the debt. If you did not agree then you need to specifically and clearly point this out to Lloyds TSB.

 

I am not sure at this stage how we can help you further in this dispute. You may be better to pursue the complaint through the Financial Services Ombudsman, once you have exhausted Lloyds TSB’s own complaints procedure

 

Yours sincerely

[elsinore]

My first reaction was to bridle at the call for openness and transparency. They can have all the openness and transparency they want from me, unlike the ducking and diving I’ve been getting from AK!

 

I brightened up when they got to the bit about the loan, but it only lasted for one sentence! The revelation about what constitutes a ‘copy’ is at odds with what we have been led to believe is the case (could they be wrong?).

 

After that, it’s downhill all the way, the implication being that I might be the villain of the piece.

 

None of the points relating to my actual complaint were addressed.

 

Finally, the fob-off; sort it out with LTSB or try the FSO.

 

Observations are welcome, because I need some objective input. I intend to respond, but only after giving it a lot of thought and heeding other opinions.

 

Elsinore