NEXT Retail - Blank agreement

[The GodMother]

lewis as they are chasing u for the money

 

Recorded delivery and print dont sign your name.

[alfwithhair]

hi alf,

 

i think i can come up with a killer letter that will despatch them with ease and point out a few glaring errors in their letter

 

Paul,

Any developments with this letter for Lewis yet?

Ta

Alf

[pt2537]

Sorry mate , no i haven't looked yet, im being bombarded with requests for help and im struggling to answer them all.

 

i will see what i can do but its easter and we have all the family over too so i cant spend as much time as normal on the CAG

[alfwithhair]

No problem Paul.

[alfwithhair]

hi alf,

 

i think i can come up with a killer letter that will despatch them with ease and point out a few glaring errors in their letter

 

Any updates with regards to the letter for the Lewis Crew Paul? Or should I just send the one Ben posted?

[pt2537]

will get it sorted tonight mate, ive been tied up on other things

[alfwithhair]

Your a star M8.

Many thanks

Alf

[pt2537]

Hi Alf, just looking in to say im working on the letter now and should have something posted by around midday

 

would have been last night but i got side tracked

[pt2537]

ACCOUNT IN DISPUTE

 

DO NOT IGNORE THIS LETTER. IF YOU DO NOT UNDERSTAND ITS CONTENTS PLEASE PASS IT TO SOMEONE WHO DOES

 

 

 

Dear Sirs

 

 

Thank you for your letter dated xxxxxxx the contents of which I note,

 

I must say that your letter is based upon many assumptions and very little fact, so let me bring to your attention a few items which I think are extremely relevant in this matter

 

Firstly, your comment

 

“When you applied for your Next Directory credit account, your details were collected so that Next Directory could approve your application. Once this happened, an account was opened for you and a welcome letter was dispatched. You may have also received your catalogue at this point”

 

This comment is highly irrelevant, the Consumer Credit Act 1974 and Statutory instrument 1983 / 1553 set out the form and content of a credit agreement , now if your client chooses to ignore this legislation and issue credit without following statutory procedure , then its hard luck on them

 

Please note the judgment of Sir Andrew Morritt Vice chancellor in the Court of Appeal Ruling of Wilson v First County Trust Ltd - [2001] 3 All ER 229 at paragraph 26

The creditor--by failing to ensure that he obtained a document signed by the debtor, which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;

 

Also the House of Lords ruled in the same case on appeal that without a credit agreement, signed by the creditor and debtor and containing the prescribed terms under Schedule 6 column 2 of Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the agreement is rendered unenforceable

 

So your comment above is completely meaningless, now moving on to the next paragraph

 

“Once the first order was processed, you received a monthly statement. Two copies of your credit agreement are sent with the first statement. You are required to sign one copy and return it to Next. You were also required to retain a copy for your own records”

 

Whilst this may be correct, it is again an assumption on your part that this did indeed happen, you have failed to provide a signed copy of the credit agreement covering this account. While It may be the case that I would have to retain any credit agreement for personal records, there is a STATUTORY DUTY imposed by the Consumer Credit Act 1974 that your client retain the original document and I also note that there is various other pieces of legislation that set out a statutory duty where document retention is involved, not least the Money Laundering Regulations, Companies Act 1985 and Inland Revenue Regulations all impose duties on your client to retain documents.

 

I must also point out that the Consumer Credit Act 1974 has been in force long enough for your client to read and understand its implications for their business, so if they cant get it right, then that really is their problem and not mine. If you can’t produce a credit agreement signed by me, containing the prescribed terms contained in schedule 6 column 2 of the Consumer Credit Agreements Regulations 1983 then its case closed.

 

Further more I find your client is in breach of its duties under the Data Protection Act 1998, as your client cannot show that it has a right to transfer this account to your company. The absence of a credit agreement and failing to comply with S78 (1) of the CCA 1974 means that the original creditor, in this case Next is precluded from taking any enforcement activities. Transferring the account to a third party company such as yours is enforcement and a breach of Data Protection legislation, therefore I require any entries made on my credit file by your company removed immediately as I have no financial relationship with your company and have not consented to your use of my data, failure to do as requested will result in a complaint to Richard Thomas the Information commissioner and I reserve the right to take any legal action necessary to remove any adverse data you may have added. Also take note that any quantifiable damage I sustain to my credit rating as a result of any data you add may result in my pursuing your company for damages as per the ruling of Kpohraror v Woolwich Building Society - [1996] 4 All ER 119

 

Any attempts to suggest that you have a right to pursue this debt through the courts or any harassment will be reported to the Office of Fair Trading as a breach of their guidance on Debt Collection and as a Consumer Credit licence holder you are bound to follow that guidance and any breach may have implications upon your companies licence

 

To clarify, no payments will be made in regards to this account, it is clearly unenforceable at law as no agreement can be found or produced and you have confirmed in writing that your client does not have a copy. Should you continue to harass me for payment I will consider legal proceedings in the XXXXXX County court for a declaration pursuant to section 142(1) of the Consumer Credit Act 1974. please take note, I am aware of my rights in this matter and should you fail to take heed of this letter, I shall issue a letter before action compliant with the Civil Procedure Rules Pre action Protocols Para 4.3 giving you 28 days notice that legal proceedings for a declaration re s142 CCA 1974

 

I trust you will take note of my comments and close your file accordingly.

 

I require a written reply within 14 days of receipt of this letter

 

 

 

 

should sort them out

[alfwithhair]

Aye. Blinding letter Paul.

Many many thanks.

My son will owe you a few bevies for all your help.

Just one quest

The XXXXX county court bit, I take it he puts his local court in there. ie Coventry. Is that correct?

[pt2537]

yes mate that's right, i wasn't sure where in the country he was,

 

i am truly sorry about the delay in getting this posted,

 

if you need anything else just shout

[alfwithhair]

Ok Paul, thanks again.

Alf

[The GodMother]

Great letter paul.

 

I think i may be needing it with studio cards.

[alfwithhair]

Sent Lewis the letter in post #34 supplied by Paul on 28th March 08.

Their reply,

So totally ignored the contents of the letter and continuing to pursue a disputed account. Time to inform OFT and TS I think. What do you think?

Alf

[pt2537]

Doh how daft can they be, its clear that no CCA = No enforceable debt

 

Yep its the Trading standards and formal notification to the OFT that they are breaching their guidelines i think, the mcmuffins

[The GodMother]

What you have not already done that Alf?

 

I would have done that when they demanded money after sending the blank CCA.

 

l would inform them now.

[kittycatty]

Paul can I pinch that letter to send to next please. ?

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/134723-next-debt-managers-ltd.html#post1456905

[alfwithhair]

Ok, thanks Paul.

Whats a 'formal notification' is it differnent from a complaints letter?

Do I send to Coventry TS or Lewis local area branch?

Alf

[pt2537]

Paul can I pinch that letter to send to next please. ?

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/134723-next-debt-managers-ltd.html#post1456905

 

KC yes you could use it if it fits the bill for your case, if you have had the same letter that Alf has then use it by all means

[pt2537]

Ok, thanks Paul.

Whats a 'formal notification' is it differnent from a complaints letter?

Do I send to Coventry TS or Lewis local area branch?

Alf

 

Well, go for your TS and the home county TS too mate, a double whammy,

 

 

when i say formal notification what i mean is, the OFT doesnt deal with individual complaints from consumers so they wont take on your complaint however you can notify them of the fact that they are breaching their guidelines and they will note this on file

[alfwithhair]

Good evening all.

Just heard from my son that there has been some developments with this thread, so here are the details.

 

I will just go over the main points again for ease of reference.

 

On 28th Nov 2007, my son made a CCA request to NEXT RETAIL. On 14th Dec 2007, he received a totally blank two page agreement with a different company address on each page and an accompanying letter from NEXT. (See post 1)

 

He replied to NEXT with the letter supplied by Paul (See post 5) the same day. On 23rd Jan 2008, he received another letter from NEXT informing him that the account was being transferred to a DCA (Didn't say which one)

 

He was then contacted by LEWIS DEBT RECOVERY. After a couple of letters supplied by forum member s he recieved a letter from LEWIS on 18th March 2008, basically saying they had been in touch with their clients and the agreement was not available. (See post 20)

 

He replied with the letter supplied by Paul (See post 34) Their reply can be read in Post 39. As adviced by forum members, he notified Trading Standards and the OFT.

 

Now to todays revelations;

He received the following photocopied letter from LEWIS

along with a poor photocopy of an agreement.

Now in their letter they now so they have been incontact with their client and have been able to obtain a copy of the agreement, after say in their last letter that it was not available. Now to the agreement. As I say it is a poor photocopy and if you compare it with what NEXT sent in post 1, if bares no resembalence whatsoever to what LEWIS say their client has supplied. You can see quite clearly that this agreement has come out of a ring binder folder, as the holes are clearly visable and again it is total blank. I don't think for one minute that LEWIS have contacted their client and this agreement has come out of a ring binder in LEWIS's office that is no doubt full of various companies agreement to send out in the hope of a payment.

 

Now Lewis's waffle about the 'correct interpretation of a copy' is too complicated even for me, so I hope someone will be able to shine some light on the contents of their recent letter?

 

One other thing is he checked his credit file earlier and NEXT placed a Default on his records in FEB 2008, but he has never received any notification of this from NEXT?

 

SO what he rearly wants to know is that this lastest envelope of assumptions from LEWIS's is nothing more then that and that the original dispute still stands. Does anything they have said or sent now make this debt enforceable?

 

As he has already informed TS and the OFT of LEWIS's business practices. Is there anything else he can do to make them back off? Should he reply to LEWIS's again or not? If so what what be the appropriate contents of the letter (apart from ???* ** **? ????!!**) Which is what we would all like to put.

 

Many thanks as always for your help.

Alf

[pt2537]

Alf, the short answer is that its utter rubbish,

 

i will try and expand tomorrow as im kinda busy but from what i can see its rubbish

[The GodMother]

just remind them the original dispute still stands as the CCA is incorrect and does not comply.

 

remember to cc in trading standards

[rory32]

As Paul says, what they have sent you is complete rubbish. This is what the OFT have to say on such things

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided.

 

Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when each is/was due).

 

However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction.If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

 

In the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it is as unfair practice under section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed

[alfwithhair]

Thank you Paul & Rory.

I look forward to your expanded comments Paul and how to proceed from here with the Lewis Crew. Nice to see you back by the way.

Alf