Next Directory and Blank CCA

[cheddar]

Hi all

 

CCA'd these guys for my neighbour who doesn't have a pc, they sent a blank CCA signed by them (shes adamant she never signed one) so she sent back a letter (done by me) basically stating that this was not a true copy of the CCA which must be signed by both parties.

 

They have replied with a letter to say they have complied, here are some excerpts:

 

'...we have supplied you with a true copy of your credit agreement, we are satisfied that this meets our obligations under Section 78 of the Consumer Credit Act.

 

The correct interperatation as to 'copy' requires reference to Section 189 (for definition of copy) and secondly to 180 relating to Consumer Credit, (cancellation notices and copies of document) Regulations 1983, (the Regulations). tbh this makes little or no grammatical sense anyway!!

 

Looking at Section 3(1) if the regulatoins it is very clear that '..every copy of an executed sgreement...shall be a true copy thereof...'. Section 3(2) confirms that a 'true copy' need not include the items listed as sub secionts (a) to (d), as applicable.

 

These two sections confirm that (i) non-statutory information included for the creditors own benefit and (ii) signature boxes need not be included in the true copy. ....it is accepted as a matter of good law thats a 'copy' for the purposes of section 78 need not be an exact copy or photocopy, as long as the true copy provided contains every material provision of the agreement signed.'

 

Okay so yes they are talking out of their behinds I know that but i am not totally sure how to word a repsonse to them, and having been away for a bit, neighbour has now got another statement and also a letter from next saying they are preparing to pass to a DCA and add default onto her file.

 

Any ideas guys? I've had a look around and can't find much :S

 

TIA

[cheddar]

Okay well just had a read around and i know that the 1983 amendment regs don't supercede the 1974 regs, but i'm sort of at a loss how to word it :S Sorry to be a pain...will check back in the morning

[rory32]

Suggested template below:

 

Dear Sirs,

 

Thank you for your response to my request under the Consumer Credit Act section 78.

 

I am pleased to see that you confirm this as a true copy of the original agreement, however as you will be aware unless the agreement is executed by the alleged debtor it is not enforceable under s127 of the Act even in a court of law. My request under the Act was very specific, I requested an executed copy of the agreement. Until such a true executed copy of the agreement is produced this account remains unenforceable under s78(6). I assume I do not need to remind you of your legal obligations.

 

As this is the case I will of course be making no further payments on this agreement, any further action on your part to enforce will be vigorously contested.

 

Please note you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies including any defaults. Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’, you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you fail to respond within 21 days, I will expect that this means you agree to remove all such data.

[cheddar]

Thank you ever so much

 

ched

[cheddar]

My neighbour has been away for xmas and has come home to 2 statements from next and 2 letters saying they are preparing the debt to be passed to a debt collection agency and to place a default on her credit file.

 

Shes having kittens over this so have calmed her down, I thought that when a debt was in dispute it was all to be put on hold? I thought there may be a template for such an occourance, can anyone shed any light on this for her??

 

TIA

 

ched

[cheddar]

Have found this so far:

 

Dear Sir/Madam,

 

Your Ref xxxxxx

 

I do not acknowledge any debt to your company.

 

A legal request for my Consumer Credit Agreement (Consumer Credit Act, 1974) was received by xxxxxxx on xx/xx/2007. Until such times as xxxxx are able to comply with this request, the account remains in dispute, is unenforceable and no payments will be forthcoming.

 

Any further attempts to pursue me for payment on a disputed account will be reported to the relevant authorities without further notice.

 

Yours faithfully,

 

Any good? TIA

[cheddar]

Hmm have also found this:

 

Dear Sir/Madam

 

You have contacted me/us regarding the account with the above reference number, which you claim is owed by myself/ourselves.

 

I/we would point out that I/we have no knowledge of any such debt being owed to (insert company name).

 

I am/we are familiar with the Office of Fair Trading Debt Collection Guidance which states that it unfair to send demands for payment to an individual when it is uncertain that they are the debtor in question.

 

I/we would also point out that the OFT say under the Guidance that it is unfair to pursue third parties for payment when they are not liable. In not ceasing collection activity whilst investigating a reasonably queried or disputed debt you are using deceptive/and or unfair methods.

 

Furthermore ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment amounts to physical/psychological harassment.

 

I/we would ask that no further contact be made concerning the above account unless you can provide evidence as to my/our liability for the debt in question.

 

I/we await your written confirmation that this matter is now closed. Otherwise I will have no option but to make a complaint to the trading standards department and consider informing the OFT of your actions.

 

I/we look forward to your reply.

 

Yours faithfully

 

any ideas? lol

[pt2537]

Hi Ched

 

Ive just seen your thread,

 

now then, correct me if im wrong (sorry but too much famous grouse has left me with a little head ache:D) Next have sent a blank credit agreement and are now threatening to file defaults etc?

 

i have a few letters on my pc which ive sent and i just wanna check the facts so i can post the one which fits the purpose

 

regards

paul

[cheddar]

Yup the fools have sent a totally blank CCA, my neighbour knows for a FACT she got 2 copies, to sign and send 1 back, she binned them.

 

Now they're saying prep for passing to a DCA, they also keep sending her normal statements asking for her payments, actual timescale of what has been sent is below

 

CCA Sent 15/10/07

 

Reminder to pay Rec'd 22/10/07

 

Blank CCA Rec'd 02/11/07

 

Letter sent to advise in default of CCA request 06/11/07

 

Letter rec'd (stated above) saying they have complied approx 01/12/07

 

Letter sent (stated abover) advising they haven't sent a true copy of CCA 14/12/07

 

Anytime between 14/12/07 - 28/12/07 2 statements asking for payment and 2 letters advising the debt is being prepared to be passed to a DCA and potential defaults.

 

TIA

[pt2537]

oh dear, another company which doesnt under stand the OFT guidance on debt collection eh?

 

righty then,

 

bear with me ched and i will see what ive got in the library to throw at these morons

[cheddar]

Thanks pt its much appriciated! Got a similar one going on for my hubby with studio, bloody fools the lot of them! LOL!

 

ched

[pt2537]

 

 

Dear Sirs,

 

 

Account no xxxxxxxxxxxxxx

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

 

 

Thank you for your letter dated **********, the contents of which are noted

 

You attention is drawn to the fact that this account is subject to a serious dispute. On xx/xx/2007 I requested ********supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date ******** have failed to comply with my request and have totally ignored my written reminders sent via recorded delivery of this fact. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you or *******, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974

 

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) 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.

 

 

 

Clearly as no agreement was supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states

 

If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in s78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

 

To clarify s61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

Furthermore under the ruling of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 the court of appeal confirmed that the prescribed terms referred to above must be contained within the agreement itself and not in a separate document

 

 

Therefore based upon the Consumer Credit Act 1974and the various pieces of case law and legislation quoted this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as ********* become compliant with my request. As ****** are still not in compliance with my request I insist that the following takes place with immediate effect

• All charges levied since ******** 2007 be removed from the account and further charges cease until such time as ******* comply fully with my original request or such time as a court makes an enforcement order
  
• All entries which refer to missed payments be removed from my credit file
  
• All collection activities by your company cease with immediate effect until ******** comply with my request from ********* 2007 or such time as a court makes an enforcement order

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

I also note your threats to issue a Statutory Default Notice under s87 Consumer Credit Act 1974 and I draw your attention to the Court of Appeal ruling in the case of Woodchester Lease Management Services Ltd v Swain & Co. In outline the ruling required that a default notice served under S87 MUST contain accurate payment information and accurate figures, which inform the debtor what payments are required to remedy the breach of contract. Since you have been continuously adding charges to this account whilst you are in default of my request, which you are not entitled to do so by statute, the figures you quote are clearly incorrect and as a result will render any default notice unlawful too

 

Should you go ahead and transfer a disputed account to an external debt collection agency you will leave me no choice but to make a complaint to the Trading standards and the Office of Fair Trading and the FOS too

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

 

I require that you comply with my request within 14 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

If no credit agreement can be produced I suggest you give consideration to writing off this debt. Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

I trust this out lines the situation

 

Regards

 

 

 

 

 

how about something along the lines of this?

 

amend to suit obviously, it think it covers all bases

[cheddar]

Fabulous!!! Thanks ever so much I think this is perfect and it will apply to the studio one as well

 

Woohoo and long live CAG

[pt2537]

No problems Ched

 

Hope it works for you,

 

its a slight variation of a letter i sent littlewoods, i wouldn't hold your breath as next can be tough customers and tend to ignore communications but hey ho, if youve tried to talk to them and they are foolish enough to take legal action, well thats another nail in their coffin;)

 

if you get any problems let us know

 

regards

paul

[cheddar]

I believe so from what I have heard my neighbour say, she did have a totally fine account with them, was late sending a payment once and they suspended her account entirely saying they had decided she wasn't worthy of having a credit limit anymore, so i can kinda see why shes a bit miffed at them lol! Also she wasn't really aware of the daft APR they charge in her eyes shes said shes paid over and above for the items she's had.

 

Each to their own i guess, i'll advise her of this letter and am sure she'll want to send it

 

ched

[cheddar]

Oh my! My neighbour has been round in a right tizzy saying shes going to pay Next the money as this letter has really got to her, it's from Nexts 'legal' department, i will if you really want me to - type it out but the general gist is this:

 

- Still adamant they have provided a true agreement, doesn't have to be signed by anyone

- Can't find signed copy

- Have enough evidence to prove she had an agreement with the acceptance/payment of goods, asking why if no agreement did she order any items on a credit account

- Will still persue the debt

 

They mention quite a few times 'letters available on the internet' and basically frighten and bully the reader, they also harp on and on about data control and Experian and include a letter from the ICO which to be honest goes over my head somewhat, it basically states that info can stay on your credit file for 6 years. Obviously this is Nexts response to the part in her last letter to them asking to remove entries from her file.

 

She says shes not bothered about this but is getting worried and totally losing in faith in me, but hey its her decision if she wants to pay it but was wondering if anyone had any thoughts...?

 

Also for a letter from the 'legal' dept it has enough spelling and grammatical errors and (if i'm totally honest) utter gibberish its embarrasing! This is the last sentence in the letter:

 

I am aware that letters of the nature of the one you have sent us are available on the internet however they do not constitue accurate or sound legal

 

Was Mr Brown drunk when he wrote this? Fruitcakes they are LOL!!!

 

Ched

[pt2537]

Hi Ched

 

well you can lead a horse to water but you cant make it drink as they say

 

thats the problem you have here

 

your friend is bowing to their scare tactics and as such they are winning

 

you have done all you can, i would get her round to yours and show them some of the Next threads on here were they have taken legal action and lost

 

there are a few so they will see for themselves

 

Regards

paul

[cheddar]

Aww lol thanks paul i might just do that, poor thing lol shes not as tough as me hehe! Will look for some next stories on here

[cheddar]

Eeep been away myself for a bit, this debt has now been passed to a debt collection agency, have searched on here for 'next' but it keeps on coming back with nothing lol feel a bit thick today LOL!

[Curlyben]

Throw this at the DCA:

 

Edit as needed

ACCOUNT IN DISPUTE

Dear Sir or Madam,

Account number: XXXX XXXX XXXX XXXX

 

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the **original creditor/DCA** and has been since DATE 2007.

Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

 

My last letter from **original creditor/DCA** was DATE and intimated that my complaint would be

resolved on **DATE**, this obviously hasn’t happened.

As **original creditor/DCA** are now in default of my Consumer Credit Act request, OFT Collection Guidelines, *Subject Access request and have also breached *s10 Data Protection Act request , I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Now I would respectfully suggest that this account is returned to the **original creditor/DCA** for resolution of these defaults and breaches, as **New DCA** cannot lawfully pursue any enforcement activities.

 

If **New DCA** chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

After taking advice, I am of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines

 

I hope that this will not be necessary and an acceptable solution can be accomplished.

 

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

Yours faithfully

*- Delete as needed

Enjoy

[pt2537]

Heres a good one to read Ched http://www.consumeractiongroup.co.uk/forum/general/113490-next-directory-making-claim.html?highlight=Next+Directory

[pt2537]

Also, if you search for "Next Directory"

 

that will bring up more results

[vinegarvera]

subbing good luck!!

[cheddar]

Cool have read round a few and also showed some to me neighbour who is happier now but what is her next (no pun intended) move? Ignore the DCA? Wait for it all to go to court? I myself have got a similar thing going on (in fact almost exactly the same situation) with Studio, they say blank agreement is fine and now DCA has the debt and is constantly sending letters...do we just wait and wait?

[cheddar]

Well the next and studio accounts are at the same stage really both been passed onto another DCA and still sending letters....can anyone let me know if we should be replying to any of them?

 

I wouldn't want this to get to court stage and for us to ook like we were simply ignoring the debt, although maybe as we have already told next and studio that they have not provided a signed agreement - this covers us?