AK/FOS

[alsagerman]

Re: AK/FOS

Just been reading an article about how over stretched the 85 Ombudsman are and the increasing tendancy of companies to challenge an initial assesment of claims made against them. The report highlights a few cases that have been with the Ombudsman for two to three years without resolution. Putting aside my suspicion that these companies are simply attempting to clog-up the Ombudsman service and delay paying, I'm beginning to wonder if the Small Claims Court may be a better (faster) route. Not afraid of doing this (Took a buiding company to court a few years ago who were trying not to honour a contract......and won) but not sure as to what heading the claim would be made under. Any ideas?

[CleverClogs]

Re: AK/FOS

Just been reading an article about how over stretched the 85 Ombudsman are and the increasing tendancy of companies to challenge an initial assesment of claims made against them. The report highlights a few cases that have been with the Ombudsman for two to three years without resolution. Putting aside my suspicion that these companies are simply attempting to clog-up the Ombudsman service and delay paying, I'm beginning to wonder if the Small Claims Court may be a better (faster) route. Not afraid of doing this (Took a buiding company to court a few years ago who were trying not to honour a contract......and won) but not sure as to what heading the claim would be made under. Any ideas?

Tort of harassment, contrary to section 1 (link) of the Protection from Harassment Act. You would seek:

1. an injunction to prevent further harassment over this alleged debt
2. an injunction to prevent any sale or assignment of this alleged debt
3. an account of damages for the annoyance their harassment has caused
4. an apology
5. your costs to be paid in full

[alsagerman]

Re: AK/FOS

Tort of harassment, contrary to section 1 (link) of the Protection from Harassment Act. You would seek:

1. an injunction to prevent further harassment over this alleged debt
2. an injunction to prevent any sale or assignment of this alleged debt
3. an account of damages for the annoyance their harassment has caused
4. an apology
5. your costs to be paid in full

Many thanks CC's. Question, are the injunctions a separate claim or are all your points made in the same claim? What would an appropriate level of damages be and how would I quantify it? I know the suggested amount through the FOS is £300 (AK rejected that) but if forced to go to court we would be looking for more than this.
Bearing in mind AK dismissed our claim the loan had been settled also dismissed our compensation claim and are now fighting tooth and nail not to be forced to pay anything, could we, perhaps, show AK have not acted in a lawfull or reasonable manner? Speculation I know but no harm in asking.

[CleverClogs]

Re: AK/FOS

The first injunction is straightforward, whilst the second would prevent the same trouble happening again were Aktiv Krapital to assign the alleged debt to another firm of equally unethical debt farmers. Alternatively, you could seek the assignment of the alleged debt to yourself which would also prevent any recurrence of this nonsense.

I believe it should be quite easy to demonstrate that AK has been quite remarkably unreasonable and that you should contact Consumer Direct on 0845 4 04 05 06 and ask that AK be reported to the OFT for having continued to pursue an alleged debt that, even if it had not been repaid in full, was long since statute barred.

As for the level of damages you might seek, that should be a matter of discussion with your solicitor, but £500 or £1000 should be quite possible.

[alsagerman]

Re: AK/FOS

Thanks again. I'll have a chat with the court and possibly a solicitor, see where we go from there. Could, if I was minded, send AK a letter stating that papers were being prepared for court action. Then invite them to contact me with their settlement proposal within a set time limit. "They don't like it up'em Mr Mainwaring".

[CleverClogs]

Re: AK/FOS

Thanks again. I'll have a chat with the court and possibly a solicitor, see where we go from there. Could, if I was minded, send AK a letter stating that papers were being prepared for court action. Then invite them to contact me with their settlement proposal within a set time limit. "They don't like it up'em Mr Mainwaring".

Not only could you do that, you should do that as your objective is surely to get them to settle without either party troubling the courts.

Do not tell them you're complaining about them to Consumer Direct or the OFT. though. Let that be a surprise.

[alsagerman]

Re: AK/FOS

Ok. have now had the opportunity to speak with the County Court people and spent half an hour with a Solicitor. The court staff were, well, less than helpful. I was met with, "In our experience DCA don't normally chase people unless you have a debt, are you sure you havn't just forgotten about one". Lets not go there shall we:Cry:

The solicitors advise boiled down to, as we've come this far with the FOS, why not let the Ombudsman complete their full review? If we disagree with the decision we can still proceed to court should we want.

So, still confused about best way to go really.

[bluebottle]

Re: AK/FOS

Reference the Protection from Harassment Act 1997 -

Section 1 specifies the elements of the offence;
Section 2 creates the offence;
Section 3 provides a civil remedy which includes an injunction, plus unlimited civil damages for, amongst other things, financial losses and anxiety caused by the defendant's conduct.

Whether the civil or criminal route is used, the onus is on the defendant to prove that their conduct is -

a. reasonable in the circumstances; and
b. that any reasonable person in possession of the information of the circumstances would consider the defendant's conduct to amount to harassment.

In layman's terms, this legal gobbledegook means that the defendant has to have a right in law or good reason to harass you and that any right-minded person who knew or found out why they did it would consider they were acting unreasonably.

The civil remedy route is the easiest and more effective route to use - even the police admit that - as breaching the injunction, if obtained, carries a maximum penalty of an unlimited fine, or up to 5 years' imprisonment or both. It does mean applying to the court that issued the injunction to issue a warrant for the arrest of the defendant.

Going to court is a very last resort when all else has failed. Remember that the Civil Procedures Rules apply and you have to show, in civil proceedings, that you have made every attempt to resolve this matter and have been unable to do so.

Wait and see what the FOS come up with, but have the courts up your sleeve. Oh, you can go to mediation and, even it that doesn't work, you can still proceed to a court hearing.

In order to expand on Clever Clogs' advice, if you seek an injunction in the County Court, this is only an interim injunction. In order to make it permanent, you will need to apply to a Circuit Judge within 28 days for a permanent injunction. Just think of how many DCAs you could p*ss off with that. None of them would dare send you a letter or phone you for want of risking the penalties the law prescribes.

[alsagerman]

Re: AK/FOS

That's a better response than I achieved with the solicitor, thanks Bluebottle. I'll print that off and put it on my notice board for referral at the appropriate time.

[bluebottle]

Re: AK/FOS

You're welcome.

Although I've read through the posts in this thread, personally, I would wait and see what the FOS come up with. If you want any help putting a case together with a view to court proceedings, PM me and I'll see how I can help.

[alsagerman]

Re: AK/FOS

Vindication at last. Letter received today from the FOS accepting our complaint against AK and awarding a settlement of £300. We may well have acheived a greater sum through the courts but just how much hassle do you want to give yourself?

The Ombudsman indicated that AK wrongly instructed collection agents in 2007,2009, & 2011. The Ombudsman also indicated that AK had "clearly" been told the alleged debt had been settled in full in 1997 but had ignored our evidence.

So whilst £300 is not a massive sum for AK, it is a very satifying end result for us.

[QCKate]

Re: AK/FOS

That's very good news! Well done to you!!!!

AK dont have very good track record with the authorities. Much more like this and they'll have there license revoked.

QCK

[alham]

Re: AK/FOS

Congratulations. Perseverance does work.

[CleverClogs]

Re: AK/FOS

AK dont have very good track record with the authorities. Much more like this and they'll have there license revoked.

Do you really think that might happen?

I don't, and here's why - link

Nearly two years ago, the Office of Faffing and Twaddling imposed requirements on Aktiv Krapital that should have meant the DCA would behave themselves. They plainly did not comply with those requirements in this case, but I rather doubt that the OFT will do anything about it - they only do anything when they have no other choice.

[QCKate]

Re: AK/FOS

You never know CC, if enough peeps complain about there behaviour??


QCK