CCA request to Aktiv Kapital re 2 JDW accounts

[conar686]

No problem Conar It seems to become our little thread. There is the Cabot fan club, maybe we should start a AK fan club Best Wishes MoonHawk

 

Not a bad idea but not sure Fan is the right word 'seekers of justice' may be more relevant.

 

On a serious note - how do you get such a thing done on this forum, I tried to get one started for 1st Credit but got totally ignored.

[conar686]

Until the Admin moves from post 9165 (and responses) on

Consumer Credit Act Agreements, here is the final emails from my bunfight with TS yesterday

 

 

My mail

If we continue for the moment with your premise that AK do not own the accounts then surely they are unable to place a default on my credit report - something they have done and refuse to remove.

 

May I request that you ask AK for copies of the 'deed of assignment' for both accounts (I'm not entitled to these unless they rely upon them in court) to ensure they are indeed acting within their rights in respect of collecting the debt and additionally can I ask that you get them to remove said default from my credit report as they do not own the account and do not have the rights to it.

TS Response

The contract itself has not been assigned to Aktiv-Kapital, only the debt: assignment of a contract does not always require to be in writing anyway.

I am unable to ask Aktiv-Kapital to do anything regarding the agreement or the debt, only you have the right to do that as you are a party to the original contract.

With respect, we are going around in circles and I would suggest that we wait until you have asked the original creditors for copies of your agreements and take the matter from there in due course.

Comments anyone??

[make them aktiv runners]

Make Trading Standards Monday morning – send them another email. This time though follow their own argument through on the same subject (CCA non-compliance). Just add a little slip-up they’ve made for extra fun. Lets see how they try to wriggle out of their own statements!

Thank you for your latest email.

Your earlier emails suggested that AK are debt collectors, for example the following quote, “Aktiv-Kapital own the debts, not the accounts, they have not taken on board the rights and responsibilities of the original contract, they are purely collecting the debt and that is as far as their involvement in the matter goes: they do have to comply with the CCA but are not obliged to provide a copy of the original agreement as they are not your creditor, i.e the person who originally provided you with a financial accommodation”.

As you clearly state that AK must comply with the CCA, it appears you are of the opinion that they are purely debt collectors under section 145(7) rather than creditors via assignment of rights & duties under section 189.

Your latest email requests that I write to the “original creditor” which I find a little confusing considering you were previously claiming AK are not the creditor under section 189 and therefore that the creditor as always been BANK.

I have clearly stated that I sent the CCA request to AK and as yet received no CCA. I do not understand why you insist I must write to BANK as my request had been correctly served anyway. If AK are indeed debt collectors under section 145(7) rather than creditors under section 189, then it follows that they are also agents of the creditor. Section 175 clearly puts a contractual duty onto AK (as agents) to forward correspondence onto BANK irrespective of what the deed of assignment says.

I therefore request the following:

1) clarification that the words “original creditor” did not mean the creditor had changed.

2) As I served a section 77/78 request on DATE to AK, what action you will take against AK if they have failed to issue it under the section 175 obligation to BANK within a couple of days?

3) What action you will take against BANK for defaulting on my section 77/78 request which had been served onto their agent AK as defined by section 175?

I look forward to your reply.

Just for info, here is the sections, in case you want to quote them

145(7) debt collecting

Subject to section 146(6), debt-collecting is the taking of steps to procure payment of debts due under consumer credit agreements or consumer hire agreements

175 Duty of persons deemed to be agents

Where under this Act a person is deemed to receive a notice or payment as agent of the creditor or owner under a regulated agreement, he shall be deemed to be under a contractual duty to the creditor or owner to transmit the notice, or remit the payment, to him forthwith.

[rory32]

Also s189

'creditor' means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of the law, and in relation to a prospective credit agreement, includes the prospective creditor.

[vogelrok]

will do this on monday now. had the same letters the same demands for payment.

 

they have had plenty of time and before i even complained they told me the complaint was dealt with and that as far they are concerend end off and ask for a payment.

[MoonHawk]

The contract itself has not been assigned to Aktiv-Kapital, only the debt: assignment of a contract does not always require to be in writing anyway.

What??? Then how can it it shown legally that they are entitiled to collect any said debt?

 

I am unable to ask Aktiv-Kapital to do anything regarding the agreement or the debt, only you have the right to do that as you are a party to the original contract.

Total bovine manure in my opinion. So TS can not ask a compnay to disclose any information for an account of a person when that person has given authority to the TS to allow them? They might as well close doen TS then. Nonsense. You can give written authority for TS to investogate your account and see everything they hold related to you.

 

Can a legal bod comment on the TS statement that "assignment of a contract does not always require to be in writing".

 

Best Wishes

MoonHawk

[conar686]

I too will send a slightly amended missive based on the above to my TS. I've already p155ed them off so might as well 'go for broke'.

[conar686]

What??? Then how can it it shown legally that they are entitled to collect any said debt?

 

Calm dear boy I've sent them a mail based on Aktiv Runners 'most' excellent draft above.

 

I've decided to give this TS some rope to hang themselves, if I do not receive a suitable response to the a/m mail then my next step will to be to ask for their complaints procedure with a view to reporting them to the Local Government Ombudsman Service (www.lgo.org.uk).

Like to hear what a banana has to say about as you do on agreements being in writing.

[MoonHawk]

As I have mentioned already in the CCA Agreements thread, I overlooked an important point in the very first letter they sent me. Check to see if you have the same wording as mine Conar. Mine said (in bold letters I might add):

 

"You should not send any further payment or correspondence to JD Williams & Compnay Limited, as they are no longer the legal owners of your account."

 

To me this implies it is a full and legal assignement and Tomterm has confirmed this. He also added that it also implies that the deed of assignment must be in writing.

 

Best Wishes

MoonHawk

[MoonHawk]

OK. I have taken one of Rory's wonderful letters and put together the following. Any comments/suggestions would be most welcome.

 

Your suggestion that we do not understand your obligations under the CCA 1974, and the Data Protection Act 1998, is erroneous and can be construed as an attempt to mislead. Your claims to be acting according to your obligations and within the guidelines of your membership of The Credit Services Association are irrelevant. The association is neither a government body nor are they responsible for enforcing legislation in relation to your industry.

 

In several correspondences you have claimed to have purchased the outstanding debt balance and right to collect the balance, along with the right to apply interest with the original Credit Agreement, denying any obligation under the agreement. You can not refute obligations under an agreement and also claim to be permitted to apply interest under the same agreement.

 

I also draw your attention to your original two letters, both dated 25th May 2007, where you stated:

“You should not send any further payments or correspondence to JD Williams & Company Limited, as they are no longer the legal owners of your account.”

 

It would seem that contrary to your subsequent claims, you have already stated that you are the legal owners of the accounts, and as such would be responsible for all duties under the Consumer Credit Act.

 

Mrs MoonHawk should also have originally been sent an agreement to sign, irrespective of how the agreement was entered into, and the signed copy kept by JD Williams and used by Aktiv Kapital to verify the contract prior to the purchase of the account.

 

It would appear that you have failed in your obligations to comply with the various anti money laundering regulations by purchasing the above accounts without ensuring that they are accompanied by a valid signed agreement, which has been properly executed. This, as I’m sure you are aware, is a very serious offence.

 

I now require the balance of this account to be returned to zero.

 

Please note you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies. Should you refuse to comply, you must within 14 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’, you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you fail to respond within 14 days, I will expect that this means you agree to remove all such data.

 

Furthermore, you should be aware that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and as such the following would apply:

 

• You may not demand any payment on the account, nor is Mrs MoonHawk obliged to offer any payment to you.

• You may not add any further interest or charges to the account.

• You may not pass the account to any third party.

• You may not register any information in respect of the account with any of the credit reference agencies.

• You may not issue a default notice related to the account.

 

Please be aware, the CCA 1974 is very clear that a default can only be issued for breach of a valid, regulated agreement. As there is no agreement a default cannot be lawfully issued as no valid, regulated agreement has been breached.

 

I would ask that you review this account and respond favourably within 14 days of the date of this letter. Failure to do so will result in me reporting this matter to The Financial Crime Branch of HM Treasury and any other authorities as I see fit.

Best Wishes

MoonHawk

[conar686]

As I have mentioned already in the CCA Agreements thread, I overlooked an important point in the very first letter they sent me. Check to see if you have the same wording as mine Conar. Mine said (in bold letters I might add):

 

"You should not send any further payment or correspondence to JD Williams & Company Limited, as they are no longer the legal owners of your account."

 

To me this implies it is a full and legal assignment and TomTerm has confirmed this. He also added that it also implies that the deed of assignment must be in writing.

 

Best Wishes

MoonHawk

 

I've not got anything like that however they have said "We are now the legal owners of your account and your liability is now to us in respect of repaying the outstanding balance that was purchased by this group of companies"

 

Does this mean that they have admitted owning the all the rights & duties?

[MoonHawk]

If they say they are 'legal owners of the account' then yes. They can not be the legal owners of the account without being liable for the duties. Otherwise they would be 'equitable' owners and own the account in conjunction with the OC.

 

They can't have their cake and eat it too.

 

Best Wishes

MoonHawk

[Curlyben]

I smell LoP s136

Shame on them as this is an ABSOLUTE assignment.

[MoonHawk]

Good sense of smell They used that on their subsequesnt letter after their first letter said as in post #34. So either they lied in the first letter or the subsequent letters. They can't get away from the fact that they are contradicting.

 

Best Wishes

MoonHawk

[conar686]

I smell LoP s136

Shame on them as this is an ABSOLUTE assignment.

 

Dumb question, but can you expand this. They have stated LoP in correspondance but my TS seems to think this only covers the debt not all the rights

 

BTW My local TS haven't got back to my email based on Aktiv Runners above.

[Curlyben]

Conar, not a dumb question at all.

 

Legal assignments of things in action.- (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice-

(a)

the legal right to such debt or thing in action;

(b)

all legal and other remedies for the same; and

©

the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice-

(a)

that the assignment is disputed by the assignor or any person claiming under him; or

(b)

of any other opposing or conflicting claims to such debt or thing in action;

 

 

Ooops think they shot themselves in the foot there.

 

Now under this Act this is an ABSOLUTE assignment so they have been sold ALL the rights AND duties !!

This is their admission that they know that they don't have a leg to stand on, yet they are trying to bluff it out.

 

 

Sooooo as they are now the legal owners of the debt CCA74 s77-79 comes into force.

 

This is a Cabot tactic with the rights but not the duties cobblers.

 

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 15 new pence, 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 became 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.

 

Now s77-79 refer to the "creditor", this term is defined in s189.

“ creditor “ means the person providing credit under a consumer credit agreement or

the person to whom his rights and duties under the agreement have passed by

assignment or operation of law

, and in relation to a prospective consumer credit

agreement, includes the prospective creditor;

Same applies to s78 and s79 aswell.

 

Now if they are saying that they aren't the creditor as defined by the Act the you cannot possibly be the debtor

“ debtor “ means the individual receiving credit under a consumer credit agreement or

the person to whom his rights and duties under the agreement have passed by

assignment or operation of law, and in relation to a prospective consumer credit

agreement includes the prospective debtor;

Therefore there is NO debt to pay.

 

Hopefully this clears a few things up.

[MoonHawk]

Not a dumb question at all. I try my best to explain what I have learnt.

 

An ABSOLUTE assignment is where the asignee takes on the account/contract completely, with rights, duties etc. They effectively replace the OC in the contract. Any transfer under the CCA 1974 is this type.

 

They claim that the Law Of Property Act allows the debt amount to be transferred to a third party but not the contract, so the third party can collect the debt. So they have the rights to collect but not any creditor duties. This type of assignment is an equitable one which means that there are now two owners of the account. It also means that the third party has no authority or power to sue as they would if it was an absolute assignment. The OC would need to be involved in any court claim.

 

No both Cabot and AK have mistakingly used the excuse of only buying the debt to shirk the responsibility of the duties and say thay can still collect monies. What they were not counting on is people to know that means that they can not sue.

 

In my case though, in the first letter they say the are 'legal owners' of the account, which implies it is an absolute assignment. Then they try and use LoP after that. My brain had not registered that until yesterday, so I am on the attack again and not going to wait for JD Williams to come back.

 

I just checked my wifes credit file, and JDW have only registered one account on there (she has 3 with them for different catalogues) and that is logged as settled after they sold it to AK. And there is no entries by AK and I intend to keep it that way, hence the above letter.

 

Best Wishes

MoonHawk

[Curlyben]

Pssst Moonhawk, s136 is above

 

LoP in this case is ABSOLUTE assignment.

So rights, duties and smelly socks.

[conar686]

Thanks CB - So what the flipping 'eck is my TS on about. I told them that AK bought the debt under LoP s136 yet they keep stating that this covers just the assignment of the debt not the full rights & duties (Blithering idiots).

 

I've read this a number of times but apart from your highlighted bit I've not understood a word of it. Added to that I never associated Absolute rights with assignment of full rights - as I said a stick can be brighter than me a times

 

I'll keep me powder dry until I get a response to my email over the weekend.

[conar686]

Thanks MH/CB - this is all good stuff

 

I'm going to wait until I get a response from my TS before I explore their errors with them.

 

I've gone as far as I can with AK they won't talk to me now as I've received their final response & refer me to the FOS Complains procedure.

 

In fact their response to a recent letter of mine was to write such on a compliments slip & send it back to me.

 

AK are in the huff with me - didums

[MoonHawk]

LMAO @ Smelly socks.

 

Cheers Curly. I missed that one too ... I still haven't got rid of all the rust after being away for a month

 

Most staff in TS do not know all aspects of the Law and some check before answering, but some check with another colleague who is as clueless as themselves. ( I said the wrong thing above too, best change it).

 

When you get a response let us know and we'll help you fill your gun I think Curly enjoys this as much as I do.

 

Best Wishes

MoonHawk

[Curlyben]

I have a great CCA/LoP letter already lined up in my library

[MoonHawk]

I take it that from the lack of comment so far my letter in post #35 is OK.

 

They will be in a bigger huff with me when they get the letter.

 

Best Wishes

MoonHawk

[conar686]

The letter is fine MH & wanna share the CCA LoP Letter CB?

 

cheers

[Curlyben]

MH, go for it.

Conar, I'll keep that one up my sleeve for later use