Are they right? Is this legal?

debtfreein2007

A while back I was on a DMP but I managed to settle most of the debts with settlement offers, thanks to lots of useful information on this great site. But I've one creditor and I'm not overly sure who they are representing. It's Aktiv Kapital and they've purchased the debt off another company. So... I wrote them a letter using a template from MSE. I asked them for the credit agreement, enclosing my £1 payment.

They wrote back saying: "We acknowledge receipt of your request for information under the Consumer Credit Act 1974, however we are not the original creditor nor did we provide you with the original credit facility. We purchased your outstanding debt balance and right to collect that balance, together with the right to apply interest in accordance with your original Credit Agreement (where appropriate). We did not purchase your actual Agreement, consequently we have no obligation to provide you with a copy of that Agreement". They then went on to say that they'd try and obtain a copy of the Agreement from the original creditor but that it might not be possible and in the meantime I should give them money or they'll take further action.

I cancelled my DMP a while back so I haven't paid them any money for several months now. I'm not even sure what the debt was originally for. I had so many debts that I just lumped them all onto the DMP but I'm slightly suspicious of this one.

I sent them my original request on the 9th September.
Their reply is dated the 13th September.
Today (29th September) they still haven't sent me my credit agreement. What do I do next? I'd be really grateful for any help because I'm dreading their threatening letters starting again.

Jacks_xxx

:wave: Hiya hon!

I am clueless about this stuff, but it sounds a little "off" to me. It may be an old debt, or someone elses debt if they haven't provided you with any original paperwork.

To me, it sounds like they're chancing their arm! :mad:

I'm sure somebody better informed will be along in a little while, but in the meantime I just wanted to send you a hug, and say hi. :hello:

Love Jacks xxx

Emmzi

they are talking rubbish.

someone will be along with a template letter soon but just wanted you to know if they can't prove you owe it - they can't do anything.

have they even said who they bought it from??

maxmycardagain

tell them you will be happy to pay when you have full details

you may not actually be happy, but you shouldnt pay without knowing who/what/when/how much

redpoison

can you get together all the debts you owe to which company and contact them to ask them if they have sold/past your debt on to this company?

i wouldnt give this company the time of day untill you know!

debtfreein2007

Thanks for the encouragement everyone! I had two debts with Aktiv Kapital, one of which I paid off. I THINK I might know what this is for but I really don't know and I don't think I have the info anymore to work it out.

If they don't produce the info in a certain timeframe, do I still have to pay them? They're a hateful company, my family and I have been practically tortured by them. (I did offer a settlement figure twice a while back but they ignored my offers and went on threatening me).

moonlightpjs

They cannot chase the debt after 12 working days plus 2 unless they have supplied a CCA as they are in default so ignore them until a further 30 calender days send the letter below. After this timescale they are actually commiting an offence if they continue to harrass you and you can report them to various bodies as detailed below in the letter and they will be fined. You do not have to pay anything whilst they are in default (ie 12+2 working days) and you do not have to pay anything unless they supply you with a true copy of an executed CCA.

You can send this letter now if they have contacted you within the 12 +2 days as they are in default and not allowed to contact you until they provide the CCA whether or not they are the original creditor or not, if they purchased the debt then for them legally to collect they have to have the CCA.

DEFAULT UNDER THE CONSUMER CREDIT ACT 1974
FAILURE TO PRODUCE AGREEMENT

Dear Sir/Madam

ACCOUNT NUMBER: *******************

I wrote to you by Special Delivery/Recorded Delivery ( Ref ******) on ***** 2007 asking for a copy of the above agreement together with the relevant information under Section 77-79 of the Consumer Credit Act 1974, enclosing a 1.00 postal order as the fee payable. This letter was delivered and signed for on *****, 2007.

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enters into a default situation. This occurred on *****, 2007. If the request is not satisfied after a further calendar month, your company commits an offence. Therefore on ********** 2007 this time limit will have expired.

I have still neither received a copy of the agreement as required by S78 Consumer Credit Act 1974, nor any other information relating to same. As such, this account has become unenforceable by law. As you are no doubt aware subsection (6) states:

If the creditor under an agreement fails to comply with subsection (1)—

(a) He is not entitled, while the default continues, to enforce the agreement; and
(b) If the default continues for one month he commits an offence.

As such, now that the 12 working days have expired (from your receipt of the request for the agreement and supporting documents) the account is now in dispute. Whilst it remains in dispute the agreement is unenforceable.

Whilst it is unenforceable, no interest is to be added to the account. No action can be taken against me. No adverse credit references or defaults can be listed against me with Credit Reference Agencies. The account cannot be passed to a Debt Collection Agency. And lastly, I am not obliged to make any further payments to the account. Essentially, the account is ‘held’ as it was on the date of the CCA request expiring (****, 2007)


Data Protection Act (Data Protection Act 199

Furthermore, under the Data Protection Act (D10), you are also denied the authority to pass on any of my personal data. To do so in the circumstances is I understand a breach of the Data Protection Act 1998, and also the OFT guidelines, and should you ignore my request it would again result in you being further reported to the relevant authorities.

I also require that you remove all my data from your files within the next 7 days and look forward to receiving a letter from you within 10 days confirming that you have complied with this request.

Yours faithfully,

If they still cannot produce a CCA after the 12 +2+30 days then send the following letter:-

I refer to my letter dated {enter date} which was delivered via Recorded Delivery to your offices on {enter delivery date}.

You have failed to acknowledge this request by not supplying the requested documents. The documents I requested should be readily available as proof of your legal right to collect this account.

In my letter of the {enter date} I made a formal request for a copy of the signed, executed credit agreement for the above account under Section 77(1) and Section 78(1) of the Consumer Credit Act 1974 and a true signed copy of the Deed of Assignment. In addition a full statement of my account should have been sent to me detailing all debits and credits to the account from the time {debt agency name} purchased this account, along with any other documents mentioned in the credit agreement.

You are reminded that you are obliged to supply these documents, whether you are the original creditor or not, as defined under Section 189 of the CCA 1974.

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, your company commit an offence. These time limits expired on {enter date} and {enter date} respectively.

As you are no doubt aware, Section 78(6) states:

If the creditor under an agreement fails to comply with subsection (1) -

(a) He is not entitled, while the default continues, to enforce the agreement; and
(b) If the default continues for one month he commits an offence.

Therefore on {enter offence date} this account became unenforceable at law and no further payment will be made by myself to the account, as you have failed to comply with a request for a true signed copy of the said agreement, and other relevant documents mentioned in it, and failed to send a full statement of the account and failed to provide a true copy of the Deed of Assignment, under the relevant sections of the Consumer Credit Act 1974. Further, i do not acknowledge any debt to {debt agency name}.

I require the following action from {debt agency name} :

1. All payments made to date to {debt agency name} for this account should be refunded in full, including interest at the rate of 8% per annum.

2. Removal of all defaults entered by {debt agency name}. Note this is to be a complete deletion and not merely an amendment.

3. I look forward to compensation under Section 13 of the Data Protection Act 1998 to be offered for the processing of my data in the manner it has been done over the past number of years.

4. After a full refund of all payments with interest and compensation are received by myself, you will be required under Section 10 and Section 12 of the Data Protection Act 1998 to cease and desist all manual and automatic processing of my data within your company and any other company within your group.

If you do not respond positively to my request, court action may be taken under Section 14 of the Data Protection Act 1998 to force {debt agency name} or any other company within the group to comply with the refund of all monies paid, removal of all defaults maintained and compensation for damage and distress as a result of unlawful data processing. I may also pass the matter to the relevant enforcement authorities including, but not limited to, the OFT, the Information Commissioners Office, Trading Standards, the CSA, the FOS and my local MP.

I look forward to your reply within 14 days to resolve the matter amicably.

Good luck and let me know how you get on, feel free to PM me if you need further help x

Snaggles

I was just thinking 'This is something Weller would know', and then up you popped!

What a star! :T :T

debtfreein2007

Apologies for the delay in replying and thanks very much Weller. I have sent the second letter and will let you know how this turns out.

debtfreein2007

Hi guys
Sorry to dredge up an old thread but they're writing to me again. They still can't produce the original CCA - they say this is because they have purchased the debt and they don't have to provide this (despite what the template letter says).

They did, however, send me a statement which shows that I (apparently) made some payments a few years back on a DMP. I don't know if this ruins my case or not but I still don't know for sure who the original debt is to and I think it's really unfair that they can chase me for money without giving me the full details.

Should I send them the final template (above) despite the statement of payments?

Thanks so much...

Kevicho

They still have to comply with the law regardless of there attempts to lie to you.


Stick with the letters provided above, they are just trying it on