No original agreement docs available from Aktiv Kapital or the Original Creditor

dac1958

Following advise from very helpful people on this Forum I wrote to Aktiv Kapital requesting the agreement under section 17 of the Consumer Credit Act. In their reply they included this statement:-

"Although we purchased the right to recover the outstanding balance due under the agreement, as we are not the original creditor we do not hold the original doucmentation in this matter"

"In order to obtain this we did contact the original creditor in an effort to resolve the matter. Unfortunately in this case , the original creditor has been unable to provide us with the documentation and as such we now inform you that we will cease all further collections activity on regards to this matter ".

I have paid Aktiv Kapital nearly £800 on this debt.

If the ORIGINAL creditor does have any paper work then surely it can't be proved that the debt ever existed.

Does this mean that I can claim the money I have paid back from Aktiv.

I read somewhere else on the forum the following:-

"If they do not have the paperwork, the debt still exists but is not enforceable in court. As such money cannot be reclaimed.

Only if the debt did not exist could it be reclaimed, such as statue barred debts in Scotland as they are extinguished. However debts in England/Wales can still be paid when over 6 years old."

I would appreciate anyones help on this

Many Thanks

woody01

Does this mean that I can claim the money I have paid back from Aktiv.

Nope......you owed the money, but this technicality could have got you 'off'.
By paying you admitted liability, and as such your £800 will stay firmlyt with Aktiv Capital (and rightly so).

You will find yourself now with a dirty great marker on your credit file now aswell, because although they cannot enforce the debt, the fact remains you still owe it in the eyes of the law.

DarkConvict

I recognise that quote

The bit in bold only applies to debts in scotland which are over 5 years old and statute barred. This is because they do not legally exist.

In your case, you have simply found the creditor is missing the documentation.

Office_of_Fair_Trading wrote:

Even if a lender cannot produce the terms of the agreement, which is now a straightforward process even if it's lost the original, the debt is only technically unenforceable until it provides a copy.

'Unenforceable' means a lender can still chase a borrower for payments and register non-payment with credit reference agencies, but it cannot use the courts to enforce the debt.

http://www.moneysavingexpert.com/news/loans/2010/01/oft-warning-over-debt-write-off-claims

In your case, you do owe the money and as such it cannot be reclaimed. Although not enforceable they can and will trash your credit file if you fail to make payments. This has all been though the high courts now so it a clear process.

dac1958

DarkConvict wrote: »

I recognise that quote

The bit in bold only applies to debts in scotland which are over 5 years old and statute barred. This is because they do not legally exist.

In your case, you have simply found the creditor is missing the documentation.



In your case, you do owe the money and as such it cannot be reclaimed. Although not enforceable they can and will trash your credit file if you fail to make payments. This has all been though the high courts now so it a clear process.

Thanks for your reply. Im now worried about them trashing my credit file. It is them who have said they will not take any further payments - I did not request this! I have this in writing so can they still do that !?

DarkConvict

If they have stated they will not take further payments, then in that case they should not be trashing your credit file as they have stated they will not be demanding any more money.

However their stance could change and in the future they could start to ask for payments. It is possible for them to sell the debt on and the new owners to start asking for payments/recording late payments on your record. If you are at this stage already i assume the damage has already been done and a default placed?