CCA request to Aktiv Kapital re 2 JDW accounts

[MoonHawk]

Thanks Curly. Exactly what my understanding is. Which means that ...

 

either...

they have Absolute Assignment and are responsible for the duties and should not be saying they are not responsible ...

 

or ...

they have equitable assignment and should not be stating that THEY will take legal action, without the mention of the OC.

 

The second part depends on the wording. They could get away with it if they say 'legal action may be taken', but can not say 'we will take legal action'. In my letters AK say they "will use any available legal measures to achive their aim". (bold by them). With or without th eOC, there is no executed agreement, so not sure what is available

 

I think it was Tom on another thread that said he has a several year relationship with a DCA ... they send letter saying pay, he sends letter saying no .. he said he sees them as his penpals.

 

Best Wishes

MoonHawk

[Perseus]

Quote:

Originally Posted by angry cat

For anyone that is having problems with MBNA and Trading Standards, regarding their Consumer Credit Agreements.

Please click on the following link:

COMPLAINT Re: CHESTER TRADING STANDARDS

 

Love

Angry Cat

 

There is growing evidence and support for a large complaint regarding responses by TS. This complaint is growing in number with support from many who have received either little, or no assistance from TS, or seemed to be fobbed off regarding certain creditors.

If any info can be provided to the above thread will assist greatly...

Thanks

Pers

[MoonHawk]

OK. Finally I have a little clarification on the situation (no thanks to TS).

 

I wrote a letter to the OC, requesting clarification on who owes the responsibilties for the account:

 

With regard to the above accounts held by Mrs MoonHawk, Aktiv Kapital (UK) Ltd, whom you have assigned the accounts to, have stated an intention for a court claim. The have also stated on several occasions that you have assigned them only the rights to claim the balance, but that the duties and liabilities remain with .

 

Can you please confirm that this is the case since, if this is correct, I intend to apply for to be added as a party to this case, as an equitable owner, and issue a counter claim for all penalty charges and interest applied without a properly executed agreement. I will also seek full disclosure of your costs in relation to any penalty charges, and I may also bring a counter claim for libel against your organisation in respect of any incorrect default information recorded at the credit reference agencies.

 

If the assignment was a full and legal assignment, then I would appreciate a copy of the deeds of assignment to verify this. I understand that you may have to delete or omit some sensitive business information such as prices agreed. Please note that I will request this under Civil Procedures Rule in the event of a court case. In the alternative you may confirm the nature of the assignment in a letter, which I may use in court or to pass on to the Trading Standards.

 

If I do not hear from you within 14 days of the receipt of this letter, then I will assume that you indeed hold the duties and liabilities on the accounts as claimed by Aktiv Kapital, and proceed accordingly.

What I got back was a rather long and misinformed response to Penalty Charges, trying to use the £12 guideline for credit cards etc etc and no mention of the question I actually asked.

 

So I wrote again:

Your letter seems to be nothing but a standard letter and by no means answers the question I raised in my latter, dated 7th September 2007. Your letter is a response to penalty charges, something that I did not request a response to.

 

In my letter I specifically requested clarification as to the nature of the assignment of the above accounts to the company Aktiv Kapital (UK) Ltd. They have repeatedly stated that, you as , still hold the duties and liabilities of the accounts, and they, as a company, hold the benefits. If this is the case then you are jointly responsible for the accounts, and a court case may only proceed with , as an equitable owner, represented.

 

So I ask once more for you to clarify if the assignment of accounts XXX and YYY, to Aktiv Kapital (UK) Ltd, was a full and legal assignment or a partial assignment, keeping as an equitable owner.

If I do not hear from you in due course, I can only assume that you are deliberately withholding this information from me and have no choice but to use the powers of the court to force their disclosure, if required. I will in any case report you to the Office Of Fair Trading for refusing to answer a legitimate query and putting a customer in a distinct disadvantage in relation to a potential court case.

 

If I do not hear from you within 7 days of the receipt of this letter, then I will proceed accordingly.

 

I got a letter today with an answer I did not quite expect. The assignment is indeed for the "debt" only.

 

I am sorry that the response you received to your previous letter did not directly answer the questions raised. Contrary to your suggestion, there was no deliberate withholding of information but rather a misunderstanding of the letter's content.

 

I can confirm that whilst the accounts were assigned to Aktiv Kapital on to collect the outstanding balances, hold the duties and liabilities of the accounts in the sense that the outstanding balance is made up of items purchased along with interest and charges in line with our terms and conditions and in accordance with OFT guidelines.

 

If there is any dispute with regards to the make up of the balance may I suggest that in the first instance, you allow us the opportunity to resolve your issues or clarify any misunderstandings.

 

Back to review the situation

 

Best Wishes

MoonHawk

[make them aktiv runners]

Quote:

I am sorry that the response you received to your previous letter did not directly answer the questions raised. Contrary to your suggestion, there was no deliberate withholding of information but rather a misunderstanding of the letter's content.

 

I can confirm that whilst the accounts were assigned to Aktiv Kapital on to collect the outstanding balances, hold the duties and liabilities of the accounts in the sense that the outstanding balance is made up of items purchased along with interest and charges in line with our terms and conditions and in accordance with OFT guidelines.

 

If there is any dispute with regards to the make up of the balance may I suggest that in the first instance, you allow us the opportunity to resolve your issues or clarify any misunderstandings

 

The assignment is Equitable. AK have no choice - they are agents of the OC under S175. It did look like Conar's TS were relunctant to admit it once they had been cornered, but your OC has finally admitted the truth.

[MoonHawk]

Hi Aktiv,

 

Yes that is spot on. I just got fed up with AK refusing to state the exact nature of the assignment so decided to push the OC to admit. I think AK want to be able to sue in their own right and are deliberately keeping things vague in the hope that we do not know the law in that situation.

 

I still think TS are either unclear or for some reason unwilling to act against AK. AK will probably still insist that the debt is separate from the agreement and they will be allowed to pursue. So I am going to have to think this carefully through to be clear of teh best angle to approach. I have a feeling that Rory's laundering letter might come into it if I can get it in there

 

Best Wishes

MoonHawk

[make them aktiv runners]

Quote:

I can confirm that whilst the accounts were assigned to Aktiv Kapital on to collect the outstanding balances, hold the duties and liabilities of the accounts in the sense that the outstanding balance is made up of items purchased along with interest and charges in line with our terms and conditions and in accordance with OFT guidelines.

 

If there is any dispute with regards to the make up of the balance may I suggest that in the first instance, you allow us the opportunity to resolve your issues or clarify any misunderstandings.

 

Just realised they have given even more detail away than I first noticed. What they are saying is that AK are debt collectors in the first sentence above, ie section 175 applies.The next sentence is a little more worrying, they are saying the debt at X date was “sold” to AK and any further interest or charges can still be charged by OC. This seems to imply that if an account is settled in full with AK who have kindly not increased the debt, then the OC has continued to add interest/charges themselves and may sell the new debt to another DCA?

Use their invitation to clarify as really you need the OC (rather than DCA) to cancel the debt in full. Also put some of AK’s statements in (eg available legal measures) for clarification (AK will not like their statements tearing to pieces by the assignor especially the fact that they need OC's permission for court action and OC to be party). Report OC to TS as they are stating they are the creditor (though I can see an argument from their own words that both they and AK are joint creditors and equally liable.

[conar686]

I'm still waiting on both a response from the OC & my TS, however I doubt my situation is any different from MH.

 

In that case all AK are guilty of is failing to obey OFT guidelines, that'll keep them awake @ night'

[MoonHawk]

Thanks make them aktiv runners, but that is not how I read it. If you read the previous correspondence it makes sense. They are saying:

 

1) That AK have purchased the debt, and can collect on it as is. The statement by AK about applying interest seems a little odd, but I do not understand law on assignments fully at this time to know if that is possible.

 

2) OC still holds duties and labilities. And in relation to charges and interest applied without a CCA then it is them liable should I decide to take the matter to court.

 

3) I believe AK can not sue without the OC. I have to confirm that with legal bods.

 

All this though, shows that AK are not clear on their position, as I believe they must hold fire if the OC is in breach.

 

Best Wishes

MoonHawk

[Curlyben]

MH as ever Aktv are talking Ballhooks.

1/ They can't apply interest unless there is a contractual provision - I've never seen one allowing a third party to act in this way.

2/*Cough* Equitable assignment anyone.

3/Basically they are stuffed.

 

As you rightly point out AK have NO idea how assignment works either.

Under OFT Guidelines 2.8k they must stop collection activities.

not ceasing collection activity whilst investigating a reasonably queried or

disputed debt.

[make them aktiv runners]

Taking account your letter from the OC

 

“I can confirm that whilst the accounts were assigned to Aktiv Kapital on to collect the outstanding balances, hold the duties and liabilities of the accounts”

 

and some of Conar’s emails from Trading Standards (some are from the CCA thread- post 9165 onwards)

 

“Before sending my e-mail to you yesterday, I had lengthy discussions with the officers in our Fair Trading Section who enforce the Consumer Credit Act and those are our conclusions”

 

“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”

 

“The contract itself has not been assigned to Aktiv-Kapital, only the debt”

 

they are both stating the following:

1) The creditor has not changed

2) The creditor has retained both the rights and duties of the CCA 74

3) AK are purely a debt collector

4) AK have bought the debt as at a set date only.

 

How can AK receive an income from the debt without actually receiving the rights and duties under the CCA 74? Are they all talking crap or is there an explanation we have not fully explored? Forget they are trying to collect a debt (it is intended, like their letters, to confuse issues). Debts of all kinds (both in default and those that are fully paid on time) are refinanced by the banks via securitisation (there is a lot of simple explanations of how this works on the Northern Rock issue. In other words the banks turn outstanding income into bonds that they then sell (they may choose to receive a one-off payment or a regular return). The bonds are not directly linked to each individual consumer so there is no assignment of the contract itself.

 

These are also useful

http://www.consumeractiongroup.co.uk/forum/cabot/115403-cabots-methods-buying-debts.html

 

http://www.hmrc.gov.uk/manuals/cfmmanual/cfm20000.htm

 

The latter contains a couple of useful pieces of information on securitisation.

 

“The customers will be probably unaware that their debt has been ‘securitised’.

 

“On occasions an originating entity may decide – for commercial reasons – that rather than continue to enjoy annual payments from the SPV, they will sell their rights to receive such payments to a third party. Of course, the originating entity may have other rights and obligations in relation to the securitisation, which it will retain. The precise mechanism of such a sale, and how the sale proceeds are accounted for, will vary from transaction to transaction. As with any other transaction, it is possible that such a sale of rights will be used by the originator as an opportunity to convert annual revenue income into a one-off capital receipt. Advice should be sought from Anti-Avoidance Group (AAG) and CT&VAT Financial and Insurance Team as appropriate.”

The end result is that AK have bought some bonds which effectively contain our debts. If we were to pay then they would benefit. As the contract terms under the CCA have effectively been unchanged, ie no assignment (as per our understanding of assignment), then the creditor can continue to add interest/charges and appoint a debt collector to collect payments. AK are conveniently appointed to collect the debts they have an interest in being paid, and of course AK are only interested in pursuing the amount they will profit from.

 

The above is intended as a plausible explanation only. If it does indeed work that way then there is a lot of errors in court summons, CRA reporting for starters.

 

MH, only Ak are claiming a purchase, OC is stating assigned collection activity. I agree without a CCA no-one can add interest/charges, was putting it in as some have settled in full previously only to be chased by another DCA for a different amount a few years later (my guess is that the OC has created a new set of interest/charges from the date of the first sale onwards and the original DCA has not been apoointed to collect that). I agree, AK cannot commence court action withour OC being party, in fact I am guessing that AK do not have any entitlement to be there as a co-party either.

 

Ben, I was referring to the OC carrying on their rights and duties they claim to have kept (if there is a CCA of course) not DCA adding as a third party..

[MoonHawk]

they are both stating the following:

1) The creditor has not changed

Yes

2)The creditor has retained both the rights and duties of the CCA 74

Yes

3)AK are purely a debt collector

By definition yes. But on a debt that now belongs to them.

4)AK have bought the debt as at a set date only.

Yes. At a set date and a set amount.

 

How can AK receive an income from the debt without actually receiving the rights and duties under the CCA 74? Are they all talking crap or is there an explanation we have not fully explored?

I can not point you to a specific piece of legislation, but I know it is permissable for the assignment of the "debt only". In such a case the assignee of the debt loses certain abilities under the CCA. On of these is the ability to sue. In CCA 1974 only the Creditor ir pemitted to sue, and the definition of creditor in section 189 carries the duties and liabilities. SO AK are equitable owners and can not sue in their own right and need the OC to be involved. The OC does not have a CCA and can not sue, so there is a dead end.

 

Forget they are trying to collect a debt (it is intended, like their letters, to confuse issues). Debts of all kinds (both in default and those that are fully paid on time) are refinanced by the banks via securitisation (there is a lot of simple explanations of how this works on the Northern Rock issue. In other words the banks turn outstanding income into bonds that they then sell (they may choose to receive a one-off payment or a regular return). The bonds are not directly linked to each individual consumer so there is no assignment of the contract itself.

Not sure legally it makes a difference. The law will only be concerned with the facts around if there is a debt, who owns the debt and if it can be enforced.

 

These are also useful

http://www.consumeractiongroup.co.uk/forum/cabot/115403-cabots-methods-buying-debts.html

 

http://www.hmrc.gov.uk/manuals/cfmmanual/cfm20000.htm

 

The latter contains a couple of useful pieces of information on securitisation.

 

“The customers will be probably unaware that their debt has been ‘securitised’.

 

“On occasions an originating entity may decide – for commercial reasons – that rather than continue to enjoy annual payments from the SPV, they will sell their rights to receive such payments to a third party. Of course, the originating entity may have other rights and obligations in relation to the securitisation, which it will retain. The precise mechanism of such a sale, and how the sale proceeds are accounted for, will vary from transaction to transaction. As with any other transaction, it is possible that such a sale of rights will be used by the originator as an opportunity to convert annual revenue income into a one-off capital receipt. Advice should be sought from Anti-Avoidance Group (AAG) and CT&VAT Financial and Insurance Team as appropriate.”

Very useful thanks. It backs up what I have already said, in that AK are only an equitable owner and can not sue in their own right.

 

The end result is that AK have bought some bonds which effectively contain our debts. If we were to pay then they would benefit. As the contract terms under the CCA have effectively been unchanged, ie no assignment (as per our understanding of assignment), then the creditor can continue to add interest/charges and appoint a debt collector to collect payments.

Not quite. When they sell the debt, the account held with them goes to zero balance. they can add interest but it is to a zero balance. They sell their right to the balance at a date. This also has ramifications in relation to the DPA which the guideline for CRAs by the ICO covers.

 

AK are conveniently appointed to collect the debts they have an interest in being paid, and of course AK are only interested in pursuing the amount they will profit from.

Well yes. They rely on the debtors lack of knowledge of the law in most instances.

 

The above is intended as a plausible explanation only. If it does indeed work that way then there is a lot of errors in court summons, CRA reporting for starters.

Court summons depends on who does it. If AK sue then the defence is that they are an equitable owner and can not sue, and we then go back to if there is an enforeceable CCA. If there was unlikely that the debt would be sold.

 

MH, only Ak are claiming a purchase, OC is stating assigned collection activity.

Assignment in law is the transferring of an asset monetary value to another entity by any mode of transfer. So OC no longer has any call on the debt unless it is assigned back.

 

I agree without a CCA no-one can add interest/charges, was putting it in as some have settled in full previously only to be chased by another DCA for a different amount a few years later (my guess is that the OC has created a new set of interest/charges from the date of the first sale onwards and the original DCA has not been apoointed to collect that).

Sometimes the parties add their costs of collection and assignment on top. These however rely upon terms in the actual agreement, in which case we are back to the all familiar scenario ... "Where is the CCA?"

 

I agree, AK cannot commence court action withour OC being party, in fact I am guessing that AK do not have any entitlement to be there as a co-party either.

Not without a CCA they don't

 

Good food for thought make them aktiv runners .. thanks

 

Best Wishes

MoonHawk

[make them aktiv runners]

To be honest I think they are all Equitable Assignments too. The above was intended to show how things can be done which do not change the creditor, there are other ways which are also Equitable, eg making the DCA power of attorney over the debt, making the DCA beneficiary of a trust containing the debt.

 

This is a brief article I have posted before for information.

Assigning A Debt Or Benefit Of Contract? - Information Technology Law Articles and News - Lawdit Reading Room

 

This one is also interesting as it is a DCA's marketing tool for purchases. The last page explains their types of purchases.

http://www.tessera.co.uk/sale.pdf

[conar686]

If all AK can do is collect the debt are they permitted to add a default on your CR and update the reprt regularly.

[MoonHawk]

If all AK can do is collect the debt are they permitted to add a default on your CR and update the reprt regularly.

That depends on the nature of the assignment between the OC and the DCA. They can not both do it, and they can not default you twice.

 

Data Protection Technical Guidance

Filing defaults with credit reference agencies

 

The ‘sale’ or assignment of debts on defaulted accounts

 

52 When the rights to a debt are sold to a third party, the lender has to make sure the records with the credit reference agency are accurate, up to date and adequate. If they want information about the debts to continue on the credit reference file they will need to come to an agreement with the purchaser about who is to be responsible for this.

 

53 If the purchaser agrees to take control of the record, the customer should be informed that the debt has been sold or assigned and to whom. The credit reference agency file should be changed to show the name of the purchaser and that the rights to the debt have been sold or assigned. The purchaser should then make sure the record is kept up to date including changes to the amount still owed. The purchase should not affect how long the record is kept. It should be removed six years after the default.

 

54 Where the purchaser of the debt does not agree to take control of the record, the original lender, and at least in part the credit reference agency, will remain responsible if the original record is kept on the file. When the debt is sold or assigned, the customer will no longer owe any money to the original lender. If the record is not removed, the sale or assignment should be recorded and the balance should be shown as zero. The customer should still be told who the debt has been sold or assigned to.

 

The above was a lovley find by PeterBard.

 

Best Wishes

MoonHawk

[conar686]

Mng Moon

 

So basically as long as one of them (AK or OC) update the report its OK

 

bu88er

[MoonHawk]

Yes it is. My sentiments exactly It would be fun to see how many of the assignments are actually set out correctly though. Shame TS do not have the balls just to go in and verify the documentation on the complaints.

 

Best Wishes

MoonHawk

[conar686]

Its just occured to me that the finance industry are possibly not of this earth

 

Ferengi 1st Rule of Aquisition; Once you have their money, you never give it back

Spooky or wot

[make them aktiv runners]

Mng Moon

 

So basically as long as one of them (AK or OC) update the report its OK

 

bu88er

 

Its the way they are working that is questionable. OC tends to set balance to zero and AK create a replica entry that they then continue to update.

 

(54) says OC must enter a zero balance if DCA chooses not to update existing record. It does not say anywhere that a DCA can create a brand new entry - only creditors could effectively do that and AK clearly state they are not creditor!

 

(53) allows AK to continue reporting under the existing entry, ie they should change the name of the organisation responsible, not create a new entry.

 

If, as TS seem to claim they are merely debt collectors, then section 30 applies, ie they can only add data under the OC's name.

 

The only valid second entry for the same debt on a CRA file is a CCJ entry which appears on a different part of the record anyway.

[MoonHawk]

You may not be understanding the entry there. As long as the opening date and the default date are teh same then it is OK. They are not allowed to set a different default date. Unfortunately the ICO do not say anything in the guidelines about whether or not the existing payments should be kept on.

 

Best Wishes

MoonHawk

[make them aktiv runners]

Neither do they say a new entry can be created for the same account just because the owner has changed.

[make them aktiv runners]

Conar, been looking at your notices of assignment and I am confused.

They quote an agreement between themselves and Time Retail Finance Ltd and GE Capital Global Consumer Finance Ltd. Both the latter companies are separate subsidiaries of GE Bank Ltd. I cannot see how you could have entered into an agreement with 2 companies for the same account?

Also, on the other they quote an agreement between themselves and First National Tricity Finance Ltd and GE Capital Global Consumer Finance Ltd. Again I cannot see how you entered into an agreement with 2 companies. I can find that First National Tricity Finance Ltd was purchased by GE Capital pre 2004, but as it is not listed as one of their subsidiaries I assume there was a genuine legal assignment of all rights and duties to GE Capital. It begs the question of how have Aktiv entered into an agreement after 2004 with a non-existant company?

[MoonHawk]

Have been thinking about this and have put together a letter using one of Rory's, which i am about to send tomorrow (Monday):

 

No debt is acknowledged to Aktiv Kapital or .

 

I will accept your claim to have purchased only the debt and not the duties and liabilities in relation to the above accounts, although you have refused to show any proof to support your claim. I would however, bring to your attention to the fact that this is contrary to the assertions in your original two letters, both dated 25th May 2007, where you stated:

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

This implies that you have taken an absolute assignment of the accounts along with all the duties and liabilities.

 

As you have kindly clarified, this makes the “creditor” under the CCA 1974, and responsible for the duties. Since remain the creditor under the Act, Acktiv Kapital are an appointed agent, irrespective of the nature of that appointment, and as such have certain duties.

 

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.

 

As you can see, you have an obligation to forward the notice by Law, and can not dismiss the action as something done “as a matter of good practice”. 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.

 

I was very alarmed to read in your letter that you have tried to obtain copies of the original Agreements from the original credit grantors, and that these are unavailable due to the nature which they were entered into. This would mean that you purchased the debt on these accounts without ever verifying them by the use of documentation that is required by law.

 

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 and, more importantly, used by Aktiv Kapital to verify the contract and the debt.

 

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 and their agents are 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.

 

Any comments would be appreciated.

 

Best Wishes

MoonHawk

[make them aktiv runners]

Never, ever accept anything they say, besides that sentence seems to negate your first paragraph. Also demand the evidence just like they do payment. I have made a few alterations for you to consider and tried to highlight added text in blue but could not show which bits deleted. Not sure if you or Mrs MH is going to “sign” letter as you have written Mrs MH and also my, so it needs changing either way to be consistent throughout.

No debt is acknowledged to Aktiv Kapital or .

 

Firstly I must bring to your attention the fact that your original two letters, both dated 25th May 2007, stated:

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

This implies that you have taken an absolute assignment of the alleged accounts along with all the duties and liabilities and are therefore creditor.

 

Your later letters provide further statements that are contradictory to that above, in that they state that you are not the creditor as you have purchased only the alleged debt and not taken on the duties and liabilities of the above accounts.

Assuming your later clarification of your position is correct, this makes the “creditor” under the CCA 1974, and responsible for the duties. Since remain the creditor under the Act, Aktiv Kapital are an appointed agent, irrespective of the nature of that appointment, and as such have certain duties.

 

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.

 

As you can see, you have an obligation to forward the notice by Law, and can not dismiss the action as something done “as a matter of good practice”. 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.

I was very alarmed to read in your letter that you have tried to obtain copies of the original Agreements from the original credit grantors, and that these are unavailable due to the nature which they were entered into. This would mean that you purchased the debt on these alleged accounts without ever verifying them by the use of documentation that is required by law.

 

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 and, more importantly, used by Aktiv Kapital to verify the alleged contract and the debt. Furthemore, without sight of the alleged Agreement you should not have demanded any payment from Mrs MoonHawk.

 

It would appear that you have failed in your obligations to comply with the various anti money laundering regulations by purchasing and the above alleged accounts and making payment demands 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 and anyone you have shared data with, must remove all information regarding this account from your and their 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 and their agents are 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 you, OC or anyone else already appointed by either of you:

 

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

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

• may not pass the account to any third party.

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

• 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. Should you choose to respond unfavourably or not within 14 days, then as previously requested, I demand you provide full documentary proof of exactly what your alleged ownership actually is. 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.

[MoonHawk]

Thanks For that Aktiv nice changes. I will still say tat I will accept what they say about the purchase of the debt, as it emphasises the fact that they purchased it without due care and did not examine the records.

 

Also remember I have acknowledgement from the OC.

 

Best Wishes

MoonHawk

[Curlyben]

Just a addition.

This implies that you have taken an absolute assignment of the alleged accounts along with all the duties and liabilities and are therefore creditor, As defined by s189 CCA74.

 

Just to close any room they have to disagree.