Aktiv Kapital debt

Alex8998

Dear all,

I'm writing this on behalf of my mother who is in a pickle with debt collectors. There's quite a lot to this crappy situation, so I'll try and be as brief as I can.

My father passed away last October and left quite a lot of debts (most of which we have managed to settle) but there are a few outstanding. I received a letter from Judge & Priestley solicitors (who were at the time unaware he had died) as they were chasing an old credit card debt for £8.5k. They were very heavy handed and said unless we settled they would issue legal proceedings against my father's estate. I told them there were not enough funds in the estate to settle the debt in full.


I asked them for proof the money is owed (he had a card with the same company which was settled by a PPI policy) and they took several months to come back to us. They have now supplied proof the debt exists (the card was taken out in 2005, and the last statement was received August 2010).

My mum called the solcs. back on Friday to see if they would be willing to accept settlement, but the case handler wasn't it and she was forced to speak to a secretary. She put across her queries and was put on hold repeatedly while an unknown individual was telling her what to say. They were unwilling to accept settlement as my mother owns a property (which was jointly owned with my dad which passed her by virtue of the type of ownership and has bypassed the estate), and they asked us to send them proof this is the case. The secretary told my mother that such a type of ownership does not exist and all properties go to the estate, and then creditors take what they are owed and the resultant value is passed on. This is patently not the true, the solicitor who extracted letters of administration told us otherwise.

Now we are a little stuck on what to do, any input would be appreciated. Having read a few other threads on here, it is a shame I did not come sooner as we are very green and inexperienced. Is it true the debt collectors must provide proof the debt is owed within a reasonable period? They took over four months....

Stewart_78

First thing to do might be for your solicitor to ask for a full, signed and enforceable copy of the original credit agreement. As it's a pre 2007 account, if they haven't got that, they can go whistle.

sourcrates

Agree with the above, credit card accounts pre-2007 did not always comply with the terms and conditions of the consumer credit act, this was amended in 2007, but a lot of CC accounts prior to that date would today be deemed unenforceable, what proof exactly did they send you ? was it a re-constituted copy of an agreement ? if so that is not enough to satisfy section 78 of the CCA, because it was taken out in 2005 they must send you a copy of the original agreement, does not have to be signed, but must be the original, cant be a copy, you need to look closely at what they have sent you as they will try anything to make you think this debt is enforceable, when it may not be, another thing, never, ever speak to these people on the phone, do everything in writing, so you have a record, come back to us so we can advise further.

antrobus

Alex8998 wrote: »

.... They were unwilling to accept settlement as my mother owns a property (which was jointly owned with my dad which passed her by virtue of the type of ownership and has bypassed the estate), and they asked us to send them proof this is the case. The secretary told my mother that such a type of ownership does not exist and all properties go to the estate, and then creditors take what they are owed and the resultant value is passed on. This is patently not the true, the solicitor who extracted letters of administration told us otherwise.....

You have a poor solicitor.

Your solicitor should have pointed out that a creditor can apply for an Insolvency Administration Order and force the sale of the property to meet the debt. The fact that the property "bypassed the estate" is really of no consequence.

Alex8998

Stewart_78 wrote: »

First thing to do might be for your solicitor to ask for a full, signed and enforceable copy of the original credit agreement. As it's a pre 2007 account, if they haven't got that, they can go whistle.

sourcrates wrote: »

Agree with the above, credit card accounts pre-2007 did not always comply with the terms and conditions of the consumer credit act, this was amended in 2007, but a lot of CC accounts prior to that date would today be deemed unenforceable, what proof exactly did they send you ? was it a re-constituted copy of an agreement ? if so that is not enough to satisfy section 78 of the CCA, because it was taken out in 2005 they must send you a copy of the original agreement, does not have to be signed, but must be the original, cant be a copy, you need to look closely at what they have sent you as they will try anything to make you think this debt is enforceable, when it may not be, another thing, never, ever speak to these people on the phone, do everything in writing, so you have a record, come back to us so we can advise further.

They sent me a grainy photocopy of the original agreement (2 pages of it). It does bear my father's signature. I will upload a copy tonight when I get a chance to redact the sensitive information.

antrobus wrote: »

You have a poor solicitor.

Your solicitor should have pointed out that a creditor can apply for an Insolvency Administration Order and force the sale of the property to meet the debt. The fact that the property "bypassed the estate" is really of no consequence.

Yes I'm aware of IAO, he did inform us but regardless, the property bypasses the estate - we were told by the unknown entity from J&P that ALL properties go to the estate. This is a clear misrepresentation of the legal process.

Thank you for all the help, I barely got any sleep last night worrying about this mess and its nice to know like minded people will lend their ear and their advice.

fermi

By what mechanism is it bypassing the estate? Due to ownership as a joint tenancy?

Alex8998

fermi wrote: »

By what mechanism is it bypassing the estate? Due to ownership as a joint tenancy?

Yes, I am aware of Insolvency Administration Orders however so Joint Tenancy is not a cast iron guarantee of anything.

fermi

So due to the joint tenancy then? Is that what you are saying?

Or something else?

Alex8998

fermi wrote: »

So due to the joint tenancy then? Is that what you are saying?

Or something else?

Sorry for the confusion. Yes, it has bypassed the estate by virtue of the property being held in Joint Tenancy.

Below is a copy of what original agreement (sensitive information redacted). I redacted the following information: my father's name, address, income, contact details, acknowledgement details, and the reps name is present (but no signature from MBNA). The card reference number has also been redacted. The agreement was dated 2/11/05

I may be wrong, but it seems above board and I dont think we could trip them up on procedural f*** ups...

Everyone's input is welcome as always.


If you'd like to help verify the CCA, please drop me a PM

fermi

I ask as a quick Google turns up info that may concerning if that is the case.

http://www.insolvencydirect.bis.gov.uk/CaseHelpManual/D/DeceasedInsolvents.htm

7. What happens to property that was owned under a joint tenancy by the deceased debtor prior to his/her death?

The deceased debtor's interest in property owned under a joint tenancy will pass automatically to the other joint owner or owners by right of survivorship, and will never become part of the insolvency estate.

The trustee may seek to recover the value of the deceased debtor's interest in the property that has been lost to the estate by making an application to the court under section 421A. On the application of the trustee the court may make an order requiring the surviving partner to pay to the trustee an amount not exceeding the value lost to the estate. Section 421A came into force on 02 April 2001 and applies where an insolvency administration order has been made in respect of the deceased debtor and the petition for that order was presented within the period of five years beginning on the day on which he/she died.

http://www.hmrc.gov.uk/manuals/insmanual/ins1703.htm

As a result of the Insolvency Act 2000 an estate, which prior to that Act did not yield a dividend because a jointly owned property passed by survivorship to the spouse, can now be brought into the estate of the deceased.

It allows the trustee to apply to the Court, providing certain conditions are met, to recover the value of the deceased insolvent’s former beneficial interest as a joint tenant in the property from the survivor for the benefit of the estate. The Court will have regard to the circumstances of the survivor in deciding the matter.

I'm no expert in the above with property, but if me I think I would be asking your solictors opinion on the above.

Alex8998

fermi wrote: »

I ask as a quick Google turns up info that may concerning if that is the case.



I'm no expert in the above with property, but if me I think I would be asking your solictors opinion on the above.

Thank you Fermi, our solicitor did point this out, but did also say it is rather difficult (though not impossible) to enforce, particularly against a family home. Forcing a family out of their house, particularly for a debt which did not belong to them, especially (in this case) where we had no prior knowledge is something of a legal minefield, lots of factors come into play.

Its a painstaking process for the claimant/creditor who may rack up enormous legal fees with no guarantee. I assume if we cannot derail their attempts to collect, we will make a lowball settlement figure.