Statute barred

RAS

Tobyjft wrote: »

I know that there was no contact with Halifax subsequent to March 2002.

AK have told me that I made a payment to them on the account in December 07 - this may be right as I have not yet checked my details fully at home.

Firstly, until you have established what contact you made in March 2002 and whether the payment to the account in December 2007 came from an account you held, please be very careful.

Other posters here have reported instances when a DCA has made a payment from their own account to a debtors account in an attempt to establish a payment record within the 6 year deadline.

At this stage I would recommend that you do not write to then again until you have further advice.

and even if you made a payment if this is a loan, credit card or catalogue, there are other questions that Ak need to answer satisfactorily.

And if they have read the OFT Guidance provided to another DCA this week, they know that their operator was very out of order when he spoke to you,

Tobyjft

Thanks for all the help - I had actually sent another letter to AK based on the statute barred letter and detailing the 6 calls in 2 days, the comments made and reitterating that I felt the issue was becoming harassment.

I received a letter on Saturday informing me that the debt was not statute barred, but that they were willing to write it off as a "gesture of goodwill" and therefore did not need to provide me with copies of credit agreement. I am a little cynical so considered that to be a poor attemt to spin the situation, but more importantly they have put it in writing that they will no longer bother me!

fermi

Statute barred debts - Limitations Act 1980

Should you hear another peep from them, then send something like this.

I do not acknowledge any debt to you or any other company or organisation that you claim to be representing.

Acc/Ref No: *******************

FORMAL COMPLAINT under the complaint procedures set out by the Financial Ombudsman.

Thank you for your letter dated xx/xx/2008, the contents of which are noted.

On xx/xx/2008 I wrote to Aktiv Kapital regarding a debt that was alleged to be owed by myself. That letter was received and signed for on xx/xx/2008 as confirmed by Royal Mail tracking.

In this letter I pointed out the following items:

1) Under the Limitation Act 1980 Section 5 "an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued".

2) The OFT say under their Debt Collection Guidance on statute barred debt that "it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period".

3) The last correspondence/payment/acknowledgement or payment of this debt was made over six years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from me in the relevant period under Section 5 of the Limitation Act, I suggest that you are no longer able to take any court action against me to recover the alleged amount claimed.

4) The OFT Debt Collection Guidance states further that "continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred could amount to harassment contrary to section 40 (1) of the Administration of Justice Act 1970".

Therefore it is clear that your original contact regarding this debt was in breach of the Office of Fair Trading Guideline referred to in item (2).

Furthermore, your second letter is in direct breach of Office of Fair Trading Guideline referred to in item (4) and directly constitutes harassment.

As you are no doubt aware, breaches of the OFT's Guidance on Debt Collection are treated seriously by the OFT when considering your fitness to hold a Consumer Credit License.

In particular the OFT has recently stated that:

The Consumer Credit Act 1974 (the Act) requires debt collectors, businesses that offer goods or services on credit and/or are involved in activities relating to credit or hire to be licensed by the OFT. Following implementation of the OFT's new powers under the Consumer Credit Act 2006 on 6 April 2008, the companies could also have specific 'requirements' imposed on them by the OFT. If such a requirement was not complied with, the business concerned could be subject to a financial penalty of up to £50,000. The OFT can also refuse or revoke a licence if it decides that a trader is not fit to hold one. The OFT can take into account any circumstances which appear to be relevant when considering the fitness of an applicant or licensee, including evidence that the company has contravened the Data Protection Act 1988.

And that the OFT has recently enforced their guidelines by placing a legal requirement on Mackenzie Hall Ltd to cease pursuing statute barred or disputed debts.

Therefore I wish to formally notify you that unless I received confirmation that this matter is now closed, then I will not hesitate to make a formal complaint to the 'Office of Fair Trading' and also to 'Trading Standards'.

Furthermore, any attempted contact (other than to confirm that this matter is now closed) by any:

• "trading style" of the Aktiv Kapital/Thames Credit group
• constituent member of the Aktiv Kapital/Thames Credit group
• a third party acting on your behalf
• a third party that claims to have been legally assigned this debt

will result in an immediate complaint to the aforementioned regulatory bodies.

Also please note that any legal action you may consider will be FULLY and VIGOROUSLY defended, and you will be put to a strict proof of the alleged debt and any payment or acknowledgement that you claim within the relevant limitation period.

Furthermore, you may consider this letter a FORMAL COMPLAINT under the complaint procedures set out by the Financial Ombudsman. If you wish to correspond with myself with any other purpose than to confirm that this matter is now closed, then I require you to supply me with a written copy of your complaints procedure and a "final response" that I may forward to the Financial Ombudsman with my complaint.This COMPLAINT is not going to go away and ignoring this problem could potentially make your situation worse. I therefore strongly recommend that you send written confirmation that no further contact will be made concerning the above account and confirmation that this matter is now closed.

I would appreciate your due diligence in this matter.

zosie66

You were all so kind with your replies previously, so thank you again.

I have sent my letter to Acktiv Capita stating with regards to Statute Barred. I received a phone call this morning with regards to the debt. I stated that I had sent a letter recorded delivery in connection to Statute Barred, they confirmed that this hadn't be placed on the system as yet.

The guy on the phone said that as I had taken ownership of the debt in a recorded telephone conversation I was liable as that was recognised as written word basically. I informed him that the last payment to the account was in December 2002 and no written confirmation or payment from myself had been received by them since then hence the debt was statute barred. I said that I had taken advice. He asked me where but I declined to say!! He also quoted to me that if they proceeded to go to court a judge would accept the recorded telephone conversation as admittance

In your previous replies you had said that a telephone call was not a way of admitting the debt and that it MUST be in writing. Please can you confirm this is correct.... if it is I will perserve, if not I will make arrangements to pay the debt back as the only money I have is in my house equity.

I really appreciate all the previous help you have given. I feel thank you isn't enough, but thank you.

Zoe

rog2

zosie66 wrote: »

The guy on the phone said that 'as I had taken ownership of the debt in a recorded telephone conversation I was liable as that was recognised as written word basically'. I informed him that the last payment to the account was in December 2002 and no written confirmation or payment from myself had been received by them since then hence the debt was statute barred. I said that I had taken advice. He asked me where but I declined to say!! He also quoted to me that if they proceeded to go to court a judge would accept the recorded telephone conversation as admittance.

Hi Zoe

Neither of his points are correct:

• Acknowledgement, by you, of the 'Debt' must be in writing.
• Any acknowledgement, whether written or verbal, of a debt which is made after the 'Limitation Period' has expired does not constitute 'taking ownership of the debt' nor does it alter, in any way, the status of the debt - the debt remains Statute Barred and is, therefore, no longer pursuable through the Courts.
• The fact that a debt is Statute Barred is a complete defence and no Court in the land, once informed of the fact that the debt is Statute Barred, will rule in favour of AK.

The 'guy' with whom you have spoken, is giving you incorrect and misleading information which is contrary to the OFT Debt Collection Guidelines -

www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf

For this you really must report him to the OFT - One similar Debt Collection Agency (Mackenzie Hall) is already on a final compliance warning over the way that they mislead debtors over disputed and unenforceable debts.

One final piece of advice - NEVER phone the likes of Aktiv Kapital, or discuss anything with them, other than in writing. They are trained in trying to twist your words and will, as this guy has done, give you totally misleading information in order to frighten you into paying them money that legally you have no need to pay.

rog2

zosie66 wrote: »

I received a phone call this morning with regards to the debt. I stated that I had sent a letter recorded delivery in connection to Statute Barred, they confirmed that this hadn't be placed on the system as yet.

The more I think about what that 'guy' told you, the more it angers me that they can get away with this type of treatment.

Do not phone them - instead send, by recorded delivery, a copy of the letter that fermi has posted above.

zosie66

Thank you so much (again!) Now I know I am in the right I will fight with every breathe in my body.

I am thinking about writing to them with that letter. If they do contact me again by telephone I will refer them to the letter I sent and say that I am terminating the telephone conversation. On Monday I will also be contacting the post office to find out when and who signed for the letter I sent so I can quote this to them. I have also started writing a diary to document telephone calls and letters.

I am not prepared from this to happen to other people. There are people out there who must just pay their debts thinking there is nothing they can do about it and it would appear that people must do this as they are obviously still trading. Although it would appear from this string on the forum alone we have a right to take Aktiv Kapita to OFT.

Thank you so much again

Zoe

fermi

Statute barred debts - Limitations Act 1980

Just to back up what rog2 is saying, a telephone call does not count as acknowledgement.

The Limitations Act clearly states that:

"To be effective for the purposes of section 29 of this Act, an acknowledgment must be in writing and signed by the person making it."

End of......

The guy from Aktiv is lying through his teeth.

Report them and adapt the letter I posted.

speirsro

Hey all,

Thank you so much for this website - It has helped me out so much!

I just want to jump on the "Prescriptions and Limitations Act" thread and ask one question:

I too am dealing with Aktiv Capital - I called today as I believed this debt is statute barred.
They confirmed that the last payment on this account was Feb 2004, but the last transaction was 29th May 04. (I live in Scotland...).
Even though I used the account within the 5 years (just...) - following the guidelines of no payment etc - Would this debt now be barred?

I really appreciate all your help - and hope someone can put my mind at ease!

Cheers guys!

RAS

Hi

Just avoid writing to them. It rather depends what that last transaction was and AK will be desparate to get you to pay something before May 29 2009, although I suspect that transaction would have been a default letter as it is three months after the last payment.

So no letters and no payments, just in case. Unless you really want to pay them..