Debt Managers Ltd (next) - Advice Pls If Poss

[mysticpols06]

Hi, Sent CCA request on 7th to Debt managers ltd in repect of a next catalogue acc. Have received this (no scanner at mo so will type - soz if any typo's missed).

Letterhead from DML with tickbox titled "others. please find attached copy agreement. we look forward to receiving your proposals for payment".

 

Letterhead from Next stating " We have previously supplied you with or please find enclosed a true copy of the credit agreement. We are satisfied that this meets with our obligations under section 78 of the consumer credit act.

 

The correct interpretation as to "copy" requires reference to section 189 (for the definition of copy) and secondly to section 180 relating to the consumer credit (cancellation notices and copies of documents) regulations 1983 (the REGULATIONS). Looking at section 3(1) of the regulations it is clear that "...every copy of an executed agreement...shall be a true copy thereof...". Section 3(2) confirms that a "true copy" need not include the items listed at sub-sections (a) to (d), as applicable. Of particular relevance are subsections (a) and (b). These two sections confirm that (i) non-statuory information included for the creditor's own benefit and (ii) signature boxes need not be included in the true copy. Based on this analysis, it is accepted as a matter of good law that 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.

 

In light of this, and in absence of any evidence to suggest that the account holder did not order/receive the goods delivered, Next will continue to seek payment of the balance of £xxx.xx owed by the account holder.

A default entry will therefore be made on the credit reference file, which may affect the ability to obtain credit in the future. Making payment to clear the balance will enable the credit files to show as satisfied.

 

Yours Sincerely, R Chamberlain."

 

ok, Then attached to that letter was a photocopy of a blank (ie no sig, no add, no acc number etc) agreement.

 

Any advice please MOST gratefully received as the jargon given in their letter has kinda confused me (which i guess is their plan) beings as i am not at all legally in the know!

 

Many thanks again.

 

Mpols x

Edited November 27, 2008 by mysticpols06
typo doh!

[berrylover]

Has to have your details on. Needs to be a true copy of the signed, executed agreement. Send the second letter to them saying that they haven't complied with your request.

[rory32]

I would write back to them and say thanks very much but what you have supplied is unenforceable so I'll just continue to not pay.

[mysticpols06]

ok both of you - Thanks for your advise! So the bumph that they have stated in paragraph 2 of their letter (above) doesn't mean anything? ie, are they right with what they have put do you know? Thanks as always,

Mpols x

[rory32]

They are correct but (as the OFT state) without the original agreement they would have great difficulty in demonstrating that the copy is indeed a true copy of what would have been agreed at the time.

 

Ultimately it's simply a matter of its not signed by you so its unenforceable.

[mysticpols06]

"A default entry will therefore be made on the credit reference file, which may affect the ability to obtain credit in the future. Making payment to clear the balance will enable the credit files to show as satisfied."

 

Hi R, Thanks again for prompt answer Another quickie - they have stated as i have quoted above - are they allowed to add a default simply because hubby has requested cca? He has been paying reduced monthly payments for long while now & no probs so why the sudden threat of default - or is it simply that, ( a threat) in your opinion? Or then again is it poss that they are trying to guess that without the agreement we have requested, we are going to withhold the next payment (due tomoz), as is apparently our right?

 

Mpols x

[rory32]

Have they sent you a Default Notice?

[mysticpols06]

Not since the CCA request nope - in fact maybe not in a long long time Will check thru paperwork & see but don't think have received one at least since Next passed the acc on to them. Thanks as always.

Mpols x

[rory32]

They may default you - in fact they probably will - because they can't do anything else to you if you decide not to pay. If there is no default notice or if the notice is incorrect e.g. it includes charges or doesn't give you the statutory amount of time to clear the arrears then you can get the default removed.

 

I would be fairly sure that you would be able to get the default removed anyway as any default notice will not be up to date.

[mysticpols06]

Ok, Rory, just for you (aren't u the lucky one lol ) have just trawled thru all paperwork we have on this acc (prob shoulda done that & posted it on thread already but (without trying to make excuses) am trying to sort a fair few of these at the same time & also been ill with some kind of lurgey that the kids have lovingly passed on so am on quite heavy meds at the mo & me brain is a lickle hazy - soz! Anyways, Here goes (apologies in advance for the boring bits )

 

Acc opened approx Jan 04 in hubby's name.

 

Mar 06 received " Due to serious arrears your acc is being prep for transfer to a Debt Recovery Company...blah blah...prevent this by paying arrears in full"

 

We responded with reduced pro-rata payments to ALL creds on advice of DAWN (seemed quite gd at the time).

 

Apr 06 received " Acc now seriously in arrears - Payment of £xxx.xx must be made by xx/xx to prevent acc auto' transferring to debt recovery co. Failure to repond may result in ...add costs, default being registered, a collector calling at home, a summons being issued...etc"

A statement followed as per norm then received from Next " As your recent payment was not enough to bring your acc up to date you must contact us within 48 hrs to prevent acc being transferred to external DCA. Failure to repond will result in your acc being closed & no longer being able to trade with Next, Your acc will be transferred to an external DCA without further comms from Next. This may incur further charges added to your debt."

 

Then received from Debt managers ltd " URGENT FINAL DEMAND..Your debt is overdue for payment...settlement is required now...Court action may be taken if no reponse in 48 hrs...Court costs may be added & interest may accrue..ALL FUTURE COMMS & PAYMENTS SHOULD BE MADE TO US"

 

Then received from Debt managers ltd "Our client has advised us that you are making payment directly to them. YOU MUST direct all future payments/comms to us....Contact our offices immediately with proposals for repayment. Call ...blah..to see if you qualify for prompt payment discount"

We responded with same pro-rata offer prev' accepted by Next & received "accepted offer confirmation" to be paid on 28th of each month (hubby's payday'.

 

The next letter from DML (July 07) states "DEFAULT NOTICE..Your repayment agreement is now in arrears (we rang & paid by debit card on the day agreed)..unless an immediate payment of £xx.xx is made to bring your instalments up to date your debt will be passed to legal dept for further action" (Hubby rang em & made extra payment thinking they were right..doh!)

 

Then nothing until Oct 07 stating exactly the same as above (we ignored it as knew that had made payment on time as agreed).

 

Then again Dec 07 the same as above & we responded as above.

Then again Jan 08 as above & again we responded as above.

 

At end of Jan 08 we sent balance request letter with so could review pro-rata payments (to all creds') & had a balance note received.

 

Sent new payment offer & cont to pay on same date in same way as prev agreed then nothing until Apr 08 when exactly same wording but diff amount app in arrears received.

 

Then nothing until we sent CCA request to them (& all creds) on 7th of this month when received what was stated in 1st post.

 

Phew!

 

Right, basically, from what i have read on other threads i am not convinced that these 'default notice' letters each time are actual proper 'default notices if that makes any sense Although i am prob wrong & can only blame the heavy meds & fact that i am extremely slow sometimes to understanding things lol!

Hope i haven't bored you into retreat & many thanks as always in advance. Advise so far has been very reassuring hun. Cheers.

 

Mpols x

[rory32]

The next letter from DML (July 07) states "DEFAULT NOTICE..Your repayment agreement is now in arrears (we rang & paid by debit card on the day agreed)..unless an immediate payment of £xx.xx is made to bring your instalments up to date your debt will be passed to legal dept for further action" (Hubby rang em & made extra payment thinking they were right..doh!)

That's the only thing that you have stated that sounds remotely like a default notice and it isn't a legally valid one.

[mysticpols06]

YAY! Thankyou Hun - Thats what we thought but wasn't 100% sure. The next payment should be made tomrrow but i think we will drop it to a token payment of £1 to show goodwill until/if at all a valid cca is received by us. At least if they DO happen to produce one in the neverending future or we do get to court at any point at least we can show the judge our circumstances and our 'commitment' so to speak as we are def of the 'can't pay' as opposed to 'won't pay' variety. Is there a letter do you know that we could send outlining this rather than automatically sending the acc in dis template? Your thoughts gratefully processed!

Mpols x

[mysticpols06]

PS. Have tickled ur scales - cheers hun!

[mysticpols06]

Hmmm - Just realised that actually even if we do send just the token £1 payment each month then the satute barred date resets each time i think? Dunno now which seems the better option - think maybe will stick to plan in post 12 if there is a template etc for couple months & if still no enforcable agreement stop the payments altogether & send the acc in dis letter.

Mpols x

[rory32]

Just realised that actually even if we do send just the token £1 payment each month then the satute barred date resets each time i think?

Yes. The time limit for statute barring runs from the cause of action. The cause of action being when you stop paying.

 

Let me think about the letter. I think it would be worth raising the issue of them threatening to default you as well.

PS. Have tickled ur scales

Thanks

[mysticpols06]

will do - Am in same situ for a few of our other dca's that haven't yet provided cca at all so am thinking same letter could maybe apply to them with token squid as well? Might cover our ar*e for couple months til the new year is all im thinking if that makes sense. Will cont' to make the agreed pro-rata payment to our cap one acc's (need to start a whole diff thread for that one yet) as they are the o/c & have so far only received a blank cca for mine & no response at all for hubbys, but the others are all dca's that accs have been passed to & their 12 days was only up this wed so not sent em anything else yet! Soz to ramble & thanks so much for sticking with my thread so far! Means a lot to find people like you & many others on something like this site - am hoping that once i can get me head round our own situ then i can maybe start pointing other newbies in the right direction! ttfn!

Mpols x

[silverfox1961]

subbing

[millymollymoo]

Hi I am also transferrd to these idiots. I have sent DML a letter today disputing the amount as I never received a default notice from Next before terminatingand they have ignored my CCA request[next] so CCA'd DML.

apparently if I am right if they have not followed the correct route in terminating the account on the back of no/invalid default notice then they have lost rights to enforce.

Milly X

[mysticpols06]

Hi millymoo - welcome to thread - am just bumping this up really in hope that Rory looks again -

 

"Let me think about the letter. I think it would be worth raising the issue of them threatening to default you as well." (post #15)

 

cheeky i know but don't s'pose you have had a chance to come up with anything regarding a suitable reply letter please?

Thanks again hunny,

Mpols x

[rory32]

Dear Sirs,

RE: Account No: xxxx

Thank you for your letter of (date) in which you have supplied a blank template copy of the alleged credit agreement.

As you will be aware an unexecuted copy of the agreement is completely unenforceable on the alleged debtor. Furthermore, as the OFT have stated, the copy of the agreement must be a true copy and not simply conjecture. Without an executed copy of the agreement I feel that your company would have great difficulty in demonstrating that the copy supplied is indeed a true copy of the agreement.

I would however like to assure you that I take my responsibilities quite seriously in this matter and have given the matter much consideration. In light of the continued unenforceability of this account I will make payment of one pound per calendar month towards this account.

I would strongly suggest that you accept my proposal, indeed I would suggest that you are not in a position to do otherwise.

While you may feel you are entitled to issue proceedings for the recovery of the balance claimed as outstanding on this account, I would point out that without a copy of the executed credit agreement, itself containing all the prescribed terms, any action on your behalf would be fruitless. It may also be construed as harassment and your actions as vexatious. Consequently any attempt at enforcement of the account would be reported accordingly. It would also be deemed as an unfair business practice to attempt any form of enforcement regarding this account and accordingly may effect your ability to hold a consumer credit license.

This notwithstanding, I would hope that the foregoing will not be necessary and that we will be able to resolve this matter amicably.

I must insist that any further communication is in writing only.

Accordingly, I await your further comments.

Yours sincerely

Print name do not sign.

........

[mysticpols06]

Blimey Rory, Thats brill!!! Zackly the sort of thing i think i needed too - will get it sent tomorrow, recorded but not signed! Thankyou so so much for taking the time to do this & thanks from hubby too (is his prob im trying to deal with) - Take care & will post any response received of course!

Mpols x

[millymollymoo]

Hi millymoo - welcome to thread - am just bumping this up really in hope that Rory looks again -

 

"Let me think about the letter. I think it would be worth raising the issue of them threatening to default you as well." (post #15)

 

cheeky i know but don't s'pose you have had a chance to come up with anything regarding a suitable reply letter please?

 

Thanks again hunny,

 

Mpols x

 

 

Hello Mystic:) and thankyou.

 

Oh things are really hotting up. received the apparent agreement. I was laughing my head off. They confirmed in the letter that it is the ACTUAL copy of what was issued to me on account opening.

 

Well why was I laughing - not because it was unsigned. Because in their attempt to personalise it

a] they put my current name and address on both pages and

b] on the signature page [which is omitted] it has somebody elses account number.

 

I am hysterical:-D:-D:-D

 

P.s I asked for a copy of my default notice and that was not enclosed. Oh dear they have termiated with no default and lost all rights to enforce along with the dodgy agreement.

 

Pondering what to do as I do not want to let them know as they will change it.

 

What do you think.

 

Milly XX

[The GodMother]

what i would do is ignore them wait unil they do something then hit them with unenforcablity

[millymollymoo]

Many thanks will do

 

P.S soz mystic not wanting to but in on your thread.

[ScabHunter]

what i would do is ignore them wait unil they do something then hit them with unenforcablity

 

Seconded without the slightest doubt. The last thing you want to do is wake them up - if that is possible.

 

SH