Elsinore v Aktiv Kapital **WON & PAID**

[krakan]

First off, I think we need to source the original text which the requirement of a copy of the agreement relates to - I too was under the impression it was to be a 'true and genuine copy of' as opposed to 'a rough idea of' or a 'work based on'

 

Second, maybe make the emphasis of your next letter the failure on the part of AK to play by the rules. Explicitly underline the fact that your complaint wasn't 'I don't want to pay these people so can you tell them to go away', rather it was a case of 'these people are breaking the law, please reprimand them'

 

I really dislike all organisations, I think. They're all as useles as their most stupid consituent member..

[gizmo111]

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.

 

Well surely for it to have the information that was in the original it must have the signature or how can they prove it is valid?

 

Zooman is excellent on the CCA and debt stuff so it may be worth bringing this to his attention.

[elsinore]

First off, I think we need to source the original text which the requirement of a copy of the agreement relates to - I too was under the impression it was to be a 'true and genuine copy of' as opposed to 'a rough idea of' or a 'work based on'

 

Second, maybe make the emphasis of your next letter the failure on the part of AK to play by the rules. Explicitly underline the fact that your complaint wasn't 'I don't want to pay these people so can you tell them to go away', rather it was a case of 'these people are breaking the law, please reprimand them'

 

 

Thanks krakan.

The first point needs clarification as soon as possible as it will affect many other claimants and complainers.

I thought the thrust of my letter was clear enough, but I fully intend to re-emphasise the point when I next write.

 

Elsinore

[kaybee]

Hi guys

it is interesting to read about AK on this forum. I had a loan with first national which was later taken over by AK. eventually the gave me a default but came on agrrement with them to remove the default notice on my credit file once I settled the amount. They have since removed the default notice following full payment.

[elsinore]

....and thanks gizmo. This thread was started well before the advent of Debt & Bailiffs Advice forum, but I guess it would be more at home there now.

 

I'm going to post there to attract Zooman's attention and he may think it's better to move the thread there.

 

Elsinore

[elsinore]

Hi guys

it is interesting to read about AK on this forum. I had a loan with first national which was later taken over by AK. eventually the gave me a default but came on agrrement with them to remove the default notice on my credit file once I settled the amount. They have since removed the default notice following full payment.

 

Wow! You must have charm, kaybee, or you coughed up a large amount perhaps?

Can you tell us more about it?

 

Elsinore

[jimfishybob]

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.

 

 

No it doesn't. Unless it has been specifically excluded by the Director General of Fair Trading. See the examples at the end of the CCA for confirmation.

[Wolfy]

"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"

What a load of rubbish. The act specificaly states

77 Duty to give information to debtor under fixed-sum credit agreement

(1) 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 £1, 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 become 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.

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

(3) Subsection (1) does not apply to—

(a) an agreement under which no sum is, or will or may become, payable by the debtor, or

(b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

(4) 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.

(5) This section does not apply to a non-commercial agreement.

Note the word "executed" ie signed. Not executed = not valid and not complying with the act. If I were you I would write back to them and point this out.

[elsinore]

Thanks Wolfy, just the sort of ammo I was hoping for. It will be just one of many points that I will make when I respond.

 

Elsinore

[elsinore]

Several anonymous phone calls on voicemail in the last few days, from an 0870 number. This checks back to AK. Calls will not be returned.

 

Letter received 14th as follows:-

 

"We note you have failed to keep to the agreed installments (sic).

Unless the due payment and arrears are received by return we will have no alternative but to continue through the Courts without further notice.

Payment terms are a concession made by Aktiv Kapital as an alternative to pursuing through the courts for payment of the balance in full. We suggest therefore that you keep to the payment terms that have been agreed".

 

This proves that

a) they can't read, or

b) they can read but they don't understand, or

c) they can read and they do understand, but they don't give a toss.

 

I shall ignore this letter and wait for the promised county court claim to drop through the letterbox (yawn).

 

Elsinore

[elsinore]

Hmmm. Wonder if the sudden flurry of activity (Aktivity?) was prompted by contact from Trading Standards?

 

Wishful thinking perhaps.

 

Elsinore

[Neo]

Thanks Wolfy, just the sort of ammo I was hoping for. It will be just one of many points that I will make when I respond.

 

Elsinore

 

I always thought it was a true, signed copy....?

[elsinore]

Not quite sure what your point is, Neo. Wolfy's post (59) quotes the Act and refers to a 'copy of the executed (signed) agreement'. Isn't that the same thing?

 

Elsinore

[Neo]

Not quite sure what your point is, Neo. Wolfy's post (59) quotes the Act and refers to a 'copy of the executed (signed) agreement'. Isn't that the same thing?

 

Elsinore

 

Sorry Elsinore, yes, i was just clarifying...

[gizmo111]

This may help - I sent CCA to Premier Man part of JD Williams - received this back

 

In realtion to your request for a copy of the executedagreement under section 78 of the consumer credit act, Iwould refer you to regulation 3 (2)(b) of the consumer credit (Canecellation notices and copies of documents) regulations 1983. In it you will see thatthere is no requirement to provided aphotocopy of the agreement bearing your signature; it is suffiecient that we supply details of the terms and conditions to which you agreed. We are therfore eclosing a copy of the type of credit agreement sent to you when you opened your account in March 1999.

 

We are familiar with the consumer credit act and are therfore well aware that the debt is legally unenforceable if an executed agreement cannot be provided.

 

This does not, however alter the fact that this is an unpaid debt and will therfore be recorded as a default on our files and those of the credit reference agencies.

 

Basically goes on to say how sad they are that this may not getpaid and defaults will be registered and no further credit will offered(doh!) But if this is their understanding of the CCA request then trading standards are correct but it still means that the debt is unenforceable.

[MARTIN3030]

Interesting.

 

Now we also know what terminology they are familiar with too.

[elsinore]

So, have I got this right? Premier Man are saying 'we can't find the original executed agreement, but if we could there is no requirement for us to show it to you, so there, even if it means that the debt is therefore unenforceable and we'd be cutting off our nose to spite our face' !! What?

 

Elsinore

[MARTIN3030]

Looks that way.

[gizmo111]

So, have I got this right? Premier Man are saying 'we can't find the original executed agreement, but if we could there is no requirement for us to show it to you, so there, even if it means that the debt is therefore unenforceable and we'd be cutting off our nose to spite our face' !! What?

 

Elsinore

 

Seems something like that -but thought it may help withthe trading standards bit you had last week.

[Wolfy]

Ok just a thought but this does seem to make sense. They do not have to send an executed copy, ie signed dated etc, in order to comply with the CCA request. This prevents them from having commited a criminal act if they are unable to find it. BUT they cannot enforce the debt without an executed copy. Just my opinion from having done a bit of research.

[alanfromderby]

We are familiar with the consumer credit act and are therfore well aware that the debt is legally unenforceable if an executed agreement cannot be provided.

 

This does not, however alter the fact that this is an unpaid debt and will therfore be recorded as a default on our files and those of the credit reference agencies.

 

 

If they are that familiar with the CCA they would know that what they are saying about the default is absolute garbage. If the DCA have entered a default for a debt that they are not legally allowed to pursue then they are in breach of section 10 of the Data Protection Act and must remove the default.

[alanfromderby]

Ok just a thought but this does seem to make sense. They do not have to send an executed copy, ie signed dated etc, in order to comply with the CCA request. This prevents them from having commited a criminal act if they are unable to find it. BUT they cannot enforce the debt without an executed copy. Just my opinion from having done a bit of research.

 

They are totally wrong in what they say, and must comply with a CCA request under 77(1) or 78(1). Actually, it may be worth passing a copy of that letter to Trading Standards and/or the FSA.

[elsinore]

Seems something like that -but thought it may help withthe trading standards bit you had last week.

 

Yes, thanks gizmo, your contributions are most welcome. Forgive me if my sarcastic response appeared dismissive

 

We seem to have unwittingly opened a can of worms here, by involving TS and expecting their fulsome support.

 

My quarrel is with AK and I only involved TS because it was considered to be the correct thing to do. I do want to respond to TS with an authoritative counter to their arguments and so I need all the input available. The object of the exercise is to see that AK are admonished (at the very least).

 

Elsinore

[rss1979]

Any updates?? I have been following this eagerly but all seems to have gone cold. Whats the score?

[elsinore]

Hi rss, thanks for asking. Many other commitments, not least of which is finalising two claims, has meant that I've had to put this one on the back burner.

Actually, the delay may well prove to be an advantage due to kyuudousha's result.

I hope to add more in about a week.

 

Elsinore