Next/cohen claimform - hearing despite no signed cca **VACATED**

[groovychickmum]

BELOW IS THE PROOF YOU NEED TO SUPPLY AT COURT.......REGARDLESS IF YOU HAD GOODS OR NOT........A COMPANY SHOULD HAVE THEIR PAPERWORK IN ORDER IF THEY HOLD A CREDIT LICENCE. YOU HAVE PROOF (VIA LETTER,NO DOUBT HEADED PAPER) STATING WILL NOT SEEK TO USE LITIGATION.........

Hi all,

 

I sent a CCA request to Next Directory on 23 June 2007.

 

I received a letter back from a Ms M Singer stating the following:

 

"I can advise you that we do not hold a signed credit agreement, however the absence of this does not mean that the outstanding balance on your account does not exist.

 

Whilst Next will not seek to use litigation to enforce any monies owing if payments are not maintained, we will write to you and the monies will still be owed, as goods that have been charged for have been ordered by, and delivered, until the balance has been paid in full."

 

I had previously been paying my monthly minimum statement amount on a balance of around £275. However when i received this letter from Next I stopped paying as I was not prepared to pay when they could not produce a CCA.

 

I started receiving many telephone calls every day and letters threatening debt collection agencies.

 

I wrote back to Next Debt collection dept requesting that the repetitive calls cease and that as they were unable to produce a signed CCA I did not acknowledge the debt. I also quoted Ms Singer's letter re not using litigation.

 

I heard nothing more until yesterday when a County Court Claim form came through my door filed by Next for an amount of £312.57 plus £40.00 court fee plus £50.00 solicitors costs. Total £402.57.

 

I really need some advice as to how I respond to this as I have in writing from Next that they do not have a signed CCA so doesn't that mean the debt is unenforceable???? If it is, why have they claimed against me! I really don't want a CCJ against my name...

 

Any advice very gratefully received,

 

A very anxious Nas :?

[Guest Mincemeat]

I'm pondering whether or not 'Whilst Next will not seek to use litigation' actually means they will not, or are ruling out litigation, as the whilst is referring to Next themselves, not a DCA or indeed a firm of solicitors. Try reading the sentence a couple of times, first with the stress on 'seek', then on 'Next' to see what I mean. I would take it actually as a veiled threat of litigation. Obviously, this is an aside, they don't have any chance in front of a judge as they have already stated they don't have an agreement.

[tiglet]

I would concur - but I don't think a judge will look at it that way, just as a simple statement of fact.

[lollerskates]

OK I agree with the sentiment, but when your £300 balance actually is formed out of interest and charges that have been applied to your account under a non-existant agreement, I'm sorry, that's their own fault. They are big boys and they have a credit license and they decided of their own free will to not comply with the law.

 

What laws are we breaking here? I can't see any!

 

I'm all for claiming back unfair charges. I'm all for people standing up for fairness and their rights (which is why i love this website) but I think we should do it in an honest way. I mean what is this? Not paying for something that you know you should be paying for just because the company can't provide your signature? That's wrong.

 

What would happen if we all started walking out of shops with products without paying saying "show me were I signed an agreement to pay for this"? Or we could walk out of shops with our pockets filled thinking "they're big boys, it's their own fault for not putting in measures to stop me or to prove i'm stealing".

 

If you get products from a catalogue and don't pay for them, it's stealing. That's my view anyway. I've no idea what the law says. In my view you should pay what you owe and challenge the charges. Interest is part of the deal - without it, there would be no credit at all in the world because companies are not going to do this out of the goodness of their hearts (and I wouldn't either). If you don't wanna pay interest, don't buy something on credit that charges interest before you can afford to have it paid off in full.

 

It seems to me that people are ordering things based on greed rather than on what they can afford. Then somehow we have the audacity to turn round and say it's the company's fault when we don't pay.

 

Sorry, that's wrong whether it's breaking the law or not.

[nas2211]

I've noted the recent comments, both positive and negative.

 

Whilst I appreciate everyone is entitled to their own opinion i want to make it clear that this is a thread I have started to assist me in my own personal situation, not a thread to discuss the pro's and con's of when companies fail to produce a signed cca. There are many other threads that are purely for the arguing of this point and perhaps it would be better if the arguement is moved over there instead of moving the focus of this thread away from what I genuinely need it for.

 

Perhaps I should make one point in support of my own actions which is that I have had enourmous amounts of hassle with Next including goods ordered but never received which i have been charged for, and goods I have tried to return but the collecting agent never arrived so again I have been charged for goods that I didn't want. This is the main basis for my grievence against Next and why I am prepared to argue my point in court regarding their failure to produce a signed cca.

 

Lollerskates, I find some of your comments in your last post simply rude. I appreciate you have your opinion but perhaps you could post them in a thread that is arguing the points you feel so strongly on rather than hijack my thread with negative comments.

 

Back on topic, I'm still awaiting a response to my recent letter and am trying to draft my defence. Thanks for all the messages of support.

 

Nas

[lollerskates]

what bits did you find rude? the bits saying that I think what you are doing amounts to stealing? i can understand why you wouldn't like to hear that but it's hardly rude. this whole thread made me feel uneasy (to put it mildly) so I posted my opinion. just because you don't like my opinion doesn't mean you should tell me to go away - that's rude.

 

if you've been charged for goods you did not order or want then challenge them on that! the same happened me with dorothy perkins - i told them i never received my order, they gave me a refund.

 

in your first post you stated that you stopped paying just because they couldn't produce a cca! why were you paying before this little (dishonest) loophole was found? i would guess that it was because you knew you owed them the money.

 

i'll leave your thread alone now

 

I've noted the recent comments, both positive and negative.

 

Whilst I appreciate everyone is entitled to their own opinion i want to make it clear that this is a thread I have started to assist me in my own personal situation, not a thread to discuss the pro's and con's of when companies fail to produce a signed cca. There are many other threads that are purely for the arguing of this point and perhaps it would be better if the arguement is moved over there instead of moving the focus of this thread away from what I genuinely need it for.

 

Perhaps I should make one point in support of my own actions which is that I have had enourmous amounts of hassle with Next including goods ordered but never received which i have been charged for, and goods I have tried to return but the collecting agent never arrived so again I have been charged for goods that I didn't want. This is the main basis for my grievence against Next and why I am prepared to argue my point in court regarding their failure to produce a signed cca.

 

Lollerskates, I find some of your comments in your last post simply rude. I appreciate you have your opinion but perhaps you could post them in a thread that is arguing the points you feel so strongly on rather than hijack my thread with negative comments.

 

Back on topic, I'm still awaiting a response to my recent letter and am trying to draft my defence. Thanks for all the messages of support.

 

Nas

[Guest Mincemeat]

Nas, I have a dislike for all DCA's and creditors who smite peoples lives and hound them with charges and the like. I now take a very dim view of any organisation that holds a consumer credit license and does not adhere to the law. I have in no way committed deception or any such like and do not purchase anything at all on credit nowadays. I have, between LTSB and Barclays, RBS, Barclaycard, MBNA, Capital One, Sainsburys et al been charged in excess of £30k in bank charges over the years and I feel I have the right to question whenever one of these organisations oversteps the mark legally. No-one here would condone ordering anything from a catalogue or buying with their credit card and then turn around and not pay for it, but when you buy something for £100 say, and 18 months down the line you've paid over £200 and your balance is still £100 I for one say enough is enough.

 

Most of the posters on this site have felt the wrath of a DCA or an OC, worried themselves when the post arrives, lived in fear of that knock on the door and there are many companies out there who feed on that fear. Take a look at the story this week of the grandmother who killed herself after being hounded for a debt that was not even hers!

 

Soap box filed and I apologise for the hijack

[tiglet]

This subject has been done to death on this thread Devils advocate time - Using a CCA Request to "Get out of paying a debt"

 

Lollerskates - I don't think it helps any OP to make moral judgements, especially when we do not know all of the circumstnces and can only glean from what is on here.

 

Perhaps we can now just get back to giving advice to the OP without the whys and wherefores of the debt incurred.

[sequenci]

This subject has been done to death on this thread Devils advocate time - Using a CCA Request to "Get out of paying a debt"

 

Lollerskates - I don't think it helps any OP to make moral judgements, especially when we do not know all of the circumstnces and can only glean from what is on here.

 

Perhaps we can now just get back to giving advice to the OP without the whys and wherefores of the debt incurred.

 

100% agree.

 

Lollerskates, If you are looking to argue the moral aspects of CCA requests I actively encourage you to post on my devil's advocate thread rather than on this one. I would really appreciate your input! Thanks

[nas2211]

I've always felt the ethos of this site is for users to offer each other support in whatever actions they are taking, be it claiming back bank charges, challenging parking tickets, or fighting creditors on the basis of them failing to produce a credit agreement.

 

In all of these matters and more there are always people of varying opinions both positive and negative but my personal opinion has always been to give any advice I could rather than judge the forum user on the actions that have led them to seek advice in the first place.

 

To state that what I am in the process of doing is tantamount to stealing is frankly rude, in my opinion. Clearly you don't feel that and of course you are always entitled to your opinion. In the same way that I am entitled to say that there are more appropriate threads for you to post them on than mine if this is how you are feeling. I thought that was a polite way to respond to your comments rather than allow this to digress into an arguements on the rights and wrongs of my actions.

 

I hope you are able to appreciate my sentiments.

[Having_A_Knightmare]

Nas

 

Dont worry about the odd neg comment.

 

All companys who run credit account know what they are doing and they are in the wrong.

 

Letting people spend thousands and only pay of min amounts, putting credit limits up to amounts people cant afford. Charging stupid interest rates.

 

Good luck

 

HAK

[Guest Mincemeat]

On a very quick note, the number of posts made by lollerskates and his relative inexperience in a) obtaining credit and b) experiencing difficulties and c) DCA's chasing at all times of the day etc is showing and we shouldn't be too quick to be judgemental

[Having_A_Knightmare]

Mincemeat

 

By looks he cant get credit and he missed payments.

 

Naughty Naughty

 

HAK

[tiglet]

Ok, maybe we should just leave this now and concentrate on any issues Nas has?

[groovychickmum]

I'm pondering whether or not 'Whilst Next will not seek to use litigation' actually means they will not, or are ruling out litigation, as the whilst is referring to Next themselves, not a DCA or indeed a firm of solicitors. Try reading the sentence a couple of times, first with the stress on 'seek', then on 'Next' to see what I mean. I would take it actually as a veiled threat of litigation. Obviously, this is an aside, they don't have any chance in front of a judge as they have already stated they don't have an agreement.

 

 

 

but isnt it the case that selling or passing an unforcable debt to another company illegal?

gonna check the consumer credit act 1974

[Guest Mincemeat]

This is because Next are attempting to use the 'if any' clause under s77/8/9 of the CCA and are therefore going to argue that they do not have to provide you with an agreement so they are not in criminal default of the act. Lets not forget here, that Next have committed a crime that has a fine of £2500 and the OP is, if they want to, able to sue them through the magistrates court (this is dangerous though and NOT for the faint hearted).

[nas2211]

I'm not certain that Next have actually sold the debt on to be honest as I've had no documentation stating Howard Cohen have been passed the debt for collection, only that Howard Cohen are a firm of solicitors acting on behalf of Next rather than acting following the account being passed to a DCA. Does this make a difference?

 

I've read the sentence you referred to Mincemeat and I definitely see what you mean about changing the stress onto the different words. Thankfully as I have it in writing that they don't have a signed agreement I should be in a strong position. (But I won't speak too soon!

[Guest Mincemeat]

If Howard Cohen state on the N1 that Next are taking you to court, then they are acting as solicitors for Next and therefore Next are lying and have broken their own promise.

 

Can I just check something? The claimant is stated as being Next, isn't it?

 

Their POC seems to be very careful about tiptoeing around using the word 'agreement' doesn't it?

[nas2211]

Yes the claimant is stated as being Next Retail Ltd with documents to be sent to Howard Cohen solicitors.

 

That's why I was so surprised to receive the claim in the first place as Next had only recently said they didn't have an agreement!

 

If they had passed it onto a DCA I could have forwarded a copy of the letter Next sent me onto them and got any further action halted, but as it has happened this way I really don't know what Next are playing at.

 

The only thing I can think of is that the letter I was sent confirming they don't hold an agreement after my original cca request was sent by one dept and another dept instigated the legal action and perhaps there was no communication between the two?

 

The poc as a whole is very weak - no account number, stated I have defaulted when no default ever sent - only a warning.

 

I'm still feeling nervous about writing the defence though

[Guest Mincemeat]

Can you get a copy of all of your statements from them and calculate the interest charged / monthly fees charged? This needs to go in your counterclaim. Even if it is £20, they'll not turn up, you'll have your debt wiped and they'll have to refund all of that lovely interest they've been charging you under an agreement that you haven't signed....

[nas2211]

I've got to file by next Friday so I won't have enough time to do an SAR on Next, but in the letter I sent to them my requests included a breakdown of all transactions and charges - to be provided by 6th October which is Saturday.

 

I've not heard anything yet, and may well just be ignored. But can I not then seek compliance through the court so that I can counter claim? Or do I need to counter claim at the same time I file my defence?

[Guest Mincemeat]

You should file a simple defence basically stating they don't have a CCA and that you intend to defend the whole amount and state in a letter to the courts that you are awaiting a response to your SAR before you can enter a counterclaim. You don't have to send in this letter to the courts, but it all helps keeping the judge fully aware of your intentions and their failings

[Guest Mincemeat]

Oh, just thought I'd mention, having SAR'd and s78 requested Next last week, they 'assigned' the debt to Moorcroft. Moorcroft always shy away from a s78 request so one of those will be in the post tonight (which means they'll get it in about two weeks with the postal strike )

[rory32]

I've not heard anything yet, and may well just be ignored. But can I not then seek compliance through the court so that I can counter claim? Or do I need to counter claim at the same time I file my defence?

If they don't supply the info then you can't counterclaim, but then again you don't really have to. If they don't supply the info one of two things will happen 1. they will be given an extension to supply it, or 2. the case will be thrown out.

[nas2211]

To be honest I think I'll just defend the claim without counter claiming as my aim is simply to avoid a judgement not claim back any interest etc. I don't want to push my luck!