CCA request to Aktiv Kapital re 2 JDW accounts

[conar686]

MH, go for it.

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

 

CB - You keep your letters so close to your chest that they can touch your backbone

[Curlyben]

Conar, the bones of the argument are in my post #41.

I like to make sure the letters are used in the right context.

After all it's a waste of time sending an OC letter to a DCA as most of it wouldn't have any bearing on the matter in hand.

[conar686]

I think I'm going to have to start a TS thread. Other than the AK complaint I've anumber of others

 

I sent them a scan of a document LTSB purports to be my agreement its an application form and contains none of the prescribed terms for a credit card agreement

 

This was their response

 

We can see nothing wrong with the copy of the agreement which you have sent to us from Lloyds TSB, it appears to be a properly executed agreement within the confines of the Consumer Credit Act.

I responded with

Are you saying the agreement is enforceable? If so could you please point out, where on the agreement the following prescribed terms are located.

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

Are you going to investigate their breach of the CCA timelines? I have proved to you that they committed an offence under the act?

[conar686]

I've got their response to the following mail sent over the weekend re AK

 

in respect our recent mails & after further consideration.

Your earlier emails suggested that AK are debt collectors, i.e. “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, if they are purely debt collectors then this would be under section 145(7) rather than creditors via assignment of rights & duties under section 189.

 

I have clearly stated that I sent the CCA request to AK and to date received only unexecutable CCAs so the matter is not closed despite AKs request for me to write to the FoS. I do not understand why you insist I must write to First National & COMET as my request had been correctly served under s 175.

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 promptly forward correspondence onto First National & COMET irrespective of what the deed of assignment says.

 

As I have received little or no communication from either COMET or First National in respect of the agreements and on the balance of probabilities I can only assume that AK are choosing to deal with my CCA requests themselves and have not shared my requests as they are obliged to do under the act.

I therefore would ask the following:

• As I served a section 77/78 request on AK, what action do you propose to take to ensure that AK have acted (are acting) to issue all correspondence, promptly, on the matter under the section 175 obligation to First National & COMET?
  
• What action you will take against First National & COMET for defaulting on my section 77/78 request which had been served onto their agent AK as defined by section 175?

In closing I give you permission to request from AK any information relating to this matter that pertains to my request for information that will aid your investigation.

 

Their response

 

Regarding Aktiv-Kapital, I have already explained that I am not prepared to take the matter any further until you have asked the original creditors for copies of the original agreements.

Deeds of Assignment are not prepared to pass on debt recovery as the contract is not assigned.

My response

To re-iterate

 

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.

 

This demands that AK send my request onto the OC ergo the OC has been served or AK has failed in their duty as a debt collector.

 

I have already provided you with my request to First Financial and as belt & braces I've sent a CCA request off to COMET, however in my humble opinion they should have both already been served and therefore you can begin your investigation into both and further equire of AK whether or not they passed all correspondance on the matter as they must under s175.

 

I am disappointed at your conutinued reluctance to take action.

 

I've an uncontrollable urge to commence a TS Thread does anybode want to suggest a pithy name a 'cyber beer to the winner'

[conar686]

A cyber beer

 

[Curlyben]

Like where you are coming from here Conar.

Bear in mind TS people on the whole aren't as well versed in CCA as we are.

Haven't AK already said that they do indeed own the debt ?

[MoonHawk]

In my case they have Curly and I have them by the unmentionables I think as a result

 

Conar ... what was the wording of the assignment notice you got? That can have a bearing on what to say to TS. If like in mine they originally said they are the owners, then TS can not take their word now and accept their word that they only own the debt.

 

Also have AK threatened any court action?

 

Best Wishes

MoonHawk

[conar686]

Like where you are coming from here Conar.

Bear in mind TS people on the whole aren't as well versed in CCA as we are.

Haven't AK already said that they do indeed own the debt ?

 

I agree CB most TS people are fine and you can understand them not being experts. I get the feeling my TS don't want to take my cases on as they think I'm trying to pull a flanker, even though I've given them no excuse for this.

 

Re the thread - as long as the points made are not personal but just show the types & variations of responses (good & bad) we get then we can't be accused of being down on TS.

 

PeterB has a thread on OFT/ICO correspondence I think the issue re variations in TS advice deserves an airing.

 

AK have admitted owning the debt but my TS has only one thought in its head if they are not the OC then its not AKs problem.

 

My next step is to ask for their complaints procedure if they do not take action.

 

Got a name for the thread then?

[MoonHawk]

Wat is the wording used by AK?

 

Best Wishes

MoonHawk

[conar686]

In my case they have Curly and I have them by the unmentionables I think as a result

 

Conar ... what was the wording of the assignment notice you got? That can have a bearing on what to say to TS. If like in mine they originally said they are the owners, then TS can not take their word now and accept their word that they only own the debt.

 

Also have AK threatened any court action?

 

Best Wishes

MoonHawk

 

MH

 

I've never received a notice of assignment from AK, COMET or First National. I've asked AK but all I get back from them is you've had our final response we await the FoS to decide on your complaint.

 

AK have agreed that they can't enforce the account and I've instructed my DMP managers to stop payments.

 

The question I'm asking myself is whether my TS will listen to any argument I put up now. If I go back to them now with scans of AKs admissions (LoP s136 & We're legally the owners) and use your/CB arguments and correct them again thats got to p155 them off and they may put my file in cabinet 13 (the bin). Lets see what they come back with.

 

Do you think its worth writing AK one more time to see if they'll engage on the definition of ownership issue and their contradicting responses in various letters?

[MoonHawk]

What was their first letter to you? They must have told you somehow that the debt is now with AK.

 

Paste up your first couple of letters from AK and I'll take look. It is possibly similar to mine but I want to make sure of the wording. We can put something together for TS. They are just reluctant to take action if they can pass the buck on.

 

Best Wishes

MoonHawk

[conar686]

MH

 

I found the original 'Notices'. I remembered I'd sent them onto my DMP management company (BC) so basically misfiled, DOH!

 

They both mention the fact that they re the legal owners and then l*r go on to make statements about the debt.

 

There are a number of inconsistencies in their letters which I'll highlight when/if my TS get back to me.

 

 

 

http://i189.photobucket.com/albums/z61/conar686/AKAssignmentComet001.jpg

 

http://i189.photobucket.com/albums/z61/conar686/AKAssignment1stNational.jpg

[Curlyben]

I like the fact that they are written by AK and not the OC

[conar686]

I like the fact that they are written by AK and not the OC

 

Never got anything from the OC so have basically had to deal with AK from the get go. Which is why I've seriously miffed with my TS as the OC just sloped off dead early and left it with AK.

[MoonHawk]

I never got one of those. (Blank out your accountnumbers on the comet one.)

 

It is not as damning as my one I don't think as it only says "debt" and not "account" as mine does.

 

A few points:

1) We need to check that if Notice of assignment must come from the OC and not the asignee ( I am not sure on that).

2) Did you receive a default notice from the OC before this saying they will sell? If so they should not have sold.

3) Have AK at any time threatened to take you to court ... not just saying further action but actually saying they will take you to court? ... if they are not the OC and refuste that it is an absolute assignment, they have no right to sue without the OC. They can pester you all they like but at teh same time you can just say "go whistle".

 

Best Wishes

MoonHawk

[conar686]

I never got one of those. (Blank out your account numbers on the comet one dunnit good spot MH.)

 

It is not as damning as my one I don't think as it only says "debt" and not "account" as mine does. Yep I agree and so will my TS more than likely

 

A few points:

1) We need to check that if Notice of assignment must come from the OC and not the assignee ( I am not sure on that). I think you can have one or the other, like you not sure

2) Did you receive a default notice from the OC before this saying they will sell? If so they should not have sold. Don't recall getting default notice I'd have to SAR them for this.

3) Have AK at any time threatened to take you to court ... not just saying further action but actually saying they will take you to court? ... usual bllx stating 'legal proceedings being considered' if they are not the OC and refute that it is an absolute assignment, they have no right to sue without the OC. They can pester you all they like but at the same time you can just say "go whistle". By the time they threatened courts action I'd found CAG and went boldly into battle, flags flying and armed to the hilt.

 

Best Wishes

MoonHawk

 

The best bet I have is in one of the letters they state 'they are the legal owner' so when next my TS gets back to me I'll send them a scan of the appropriate letter - I doubt it will do any good they're entrenched in 'its not AK's fault' poor dears are only trying to recover the debt:rolleyes:

 

Is it worth starting a TS thread?

[MoonHawk]

The best bet I have is in one of the letters they state 'they are the legal owner' so when next my TS gets back to me I'll send them a scan of the appropriate letter - I doubt it will do any good they're entrenched in 'its not AK's fault' poor dears are only trying to recover the debt:rolleyes:

That would be the best to use. But lets get the letter drafted between us to make sure it has most impact. They are a body to help the consumer not the business in case they have forgotten You can request that they demand to see the nature of assignment and any papers related to it on your behalf.

 

Is it worth starting a TS thread?

Not sure. The problem is there is no one TS as there is ICO. They all act differently, which is part of the issue.

 

Best Wishes

MoonHawk

[conar686]

That would be the best to use. But lets get the letter drafted between us to make sure it has most impact. They are a body to help the consumer not the business in case they have forgotten You can request that they demand to see the nature of assignment and any papers related to it on your behalf.

 

Ok I'll post before I send the email

 

Not sure. The problem is there is no one TS as there is Information Commissioners Office. They all act differently, which is part of the issue.

 

It would provide data over time that could be supplied to the ombudsman (link in an earlier post) to show the scope of TS advice on the matter. I might start it on in the general thread and guage the response.

 

Best Wishes

MoonHawk

 

TS has gone to sleep today

[conar686]

Took the plunge

 

Trading Standards 'Good un or Bad un'

[MoonHawk]

2) Did you receive a default notice from the OC before this saying they will sell? If so they should not have sold. Don't recall getting default notice I'd have to S.A.R - (Subject Access Request) them for this.

They can not sell an agreement without one I don't think.

 

87 Need for default notice

(1)

Service of a notice on the debtor

or hirer in accordance with section 88 (a “default notice”)

is necessary before the creditor

or owner

can become entitled

, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement,

or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred, or

(e) to enforce any security.

I am happy to be corrcted but I count selling the debt as termination the contract. and as such needs a default notice. I know this from mine. I git a notice giving me a list of 4 different DCAs it might be sold to.

 

3) Have AK at any time threatened to take you to court ... not just saying further action but actually saying they will take you to court? ... usual bllx stating 'legal proceedings being considered' if they are not the OC and refute that it is an absolute assignment, they have no right to sue without the OC. They can pester you all they like but at the same time you can just say "go whistle". By the time they threatened courts action I'd found CAG and went boldly into battle, flags flying and armed to the hilt.

The thing is if they claim to be the owner of the debt and not the contract/agreement, they can not sue. And if they claim they can they are in breach of the Deb Collection Guidance by the OFT. Hahahaha TS are going to love you. If the TS person you speak to agrees that AK are not holders of the account, then they legally have no right to sue, and as such can not claim to sue, and ...

 

OFT - Debt collection guidance

False representation of authority and/or legal position

2.3

Those contacting debtors must not be deceitful by misrepresenting their authority and/or the correct legal position

.

2.4 Examples of unfair practices are as follows:

b.

falsely implying or stating that action can or will be taken when it legally cannot

, e.g. referring to bankruptcy or sequestration proceedings when the balance is too low to qualify for such proceedings or claiming a right of entry when no court order to this effect has been granted.

 

So in my opinion, if they have threatened to take you to court (depends on teh wording of course) TS HAS to go in to clarify the situation. Either the deeds of assignment says they are outright owners of the account and therefore the creditor under the CCA, and if they are only owners of the debt, then they have no right to sue and breaking guidelines.

 

Curly ... what do think of what I have said.

 

Best Wishes

MoonHawk

[conar686]

MH

 

More tenacious than your average Bull Dog you are sport.

 

Nowt from TS today, AK definately threatened proceedings if I failed to contact them so I'll scan this & get it off to TS tomorrow by email as I'm disappointed they haven't responded at all.

[MoonHawk]

I try and be I don't mind them working in the credit industry although I do not like the industry as a whole. But I am determined to stop them acting illegally since if the positions were reversed they would use the law to the utmost degree.

 

Put up your e-mail before you send it.

 

Best Wishes

MoonHawk

[Chalkitup]

Hello All,

I am following this thread in the background to gain more knowledge and would just like to ask MoonHawk a question re:-

OFT - Debt collection guidance False representation of authority and/or legal position

 

I have had letters from 1st Credit and their solicitors LCS which both say 1st Credit have been formally assigned the debt / the balance and they intend to take / issue legal proceedings. I sent CCA request to 1st Credit and had a letter back saying we will be advising our client of your request.

 

Nothing received to date and CCA deadline past now.

 

Am I correct in saying that 1st Credit and their solicitors LCS have broken the guidelines re OFT - Debt collection guidance False representation of authority and/or legal position ... if they have only been assigned the debt and if so what if anything should I do. I have asked what exactly they were assigned but never get an answer.

 

My thread is Chalkitup v DCA's but I have not mentioned this on there as I did not know about the guidelines until your post 70 this afternoon.

 

Thank you.

 

Onwards and Upwards

 

Chalkitup

[MoonHawk]

Hi Chalk,

 

It is my thinking that it is the case. I belive it depends on the wording they use. Even if they do not have absolute assignment of the agreement, they can with the involvement of the OC bring about a court order, but I think if they have bought the debt it is unlikely the OC would want to do that. If they wording suggest that they will take action on their own and there is no mention of the OC in their communications (apart from the original notification) then it could be construde as misleading.

 

I am waiting for someone with more legal experience to comment on my thinking. Also if I am correct there is the matter of convincing TS, which is difficult at best.

 

Best Wishes

MoonHawk

[Curlyben]

Under Absolute assignment, normally via LoP s136, the DCA CAN issue court action in it's own right.

This sounds like an equitable assignment whereby the DCA CANNOT issue proceeding on its own, these must still be filed by the OC.