Next Directory and Blank CCA

[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

[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

[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

[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

[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

[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