Intransigence of Shop Direct - please help!

[vjohn82]

I have attached a letter you should complete (fill in the name details) and then print/post.

 

This will get the ball rolling... see what response you get. Then I can get involved if needs be.

Catalogue Charges Dispute JD Williams.doc

[hulldebtor]

Thank you so much vjohn, much appreciated

[vjohn82]

Thank you so much vjohn, much appreciated

 

No problem

[hulldebtor]

FAO Vjohn,

 

Neighbour just received response from Shop Direct Finance, they state as 'a gesture of goodwill' they will accept £10 pcm for 6 months, but will not waive any of the £12 'admin'/'late payment' charges as they are 'reasonable'!!!!

Very big of them i dont think, neighbour as stated before is single mum on benefits, will happily pay the balance off @ £10 pcm if they scrap charges, seems they are playing hardball re this.

As you specified previous, is there anything you can do to help please?

Kind regards and thanks in advance

[cerberusalert]

In the absence of a CCA they cannot take any enforcement action, in other words your neighbour can tell them to go forth and multiply. Send them this;

 

Dear Sir or Madam,

 

 

Account no

 

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

 

 

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

 

Your attention is drawn to the fact that this account is subject to a serious dispute. On ......... I requested that ........... 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. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to .............., 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;

 

 

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 S.78(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 S.61(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

 

Therefore based upon the Consumer Credit Act 1974 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 entries which refer to missed payments be removed from my credit file

All collection activities cease with immediate effect until ............. comply with my request from .date........... 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

 

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 7 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

 

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

Print name do not sign

[hulldebtor]

Thank you Cerberus, that is very helpful. May i ask though, by wanting to do the 'right' thing and pay the ~£60 she owes, has her offering letter implied an admission of the debt?

Many thanks

[cerberusalert]

The issue is not whether the debt exists, the argument is to the legal enforceability of it. When Shop Direct finally realise that they haven't a leg to stand on your neighbour will be in a much stronger position to pay the debt on her terms if she so wishes.

[vjohn82]

FAO Vjohn,

 

Neighbour just received response from Shop Direct Finance, they state as 'a gesture of goodwill' they will accept £10 pcm for 6 months, but will not waive any of the £12 'admin'/'late payment' charges as they are 'reasonable'!!!!

Very big of them i dont think, neighbour as stated before is single mum on benefits, will happily pay the balance off @ £10 pcm if they scrap charges, seems they are playing hardball re this.

As you specified previous, is there anything you can do to help please?

Kind regards and thanks in advance

 

Hi,

 

Well you have done the decent thing by offering to pay the debt, albeit at reduced amounts. Odd they are playing hardball regarding the charges; perhaps they feel the recent cases against the consumer in the courts gives them some sort of special privilege to continue to rip people off?

 

Out of curiousity, who sent the letter?

[hulldebtor]

You'll like this - it was sent by the 'Customer Excellence Centre' Bootle!!

A misnomer if ever there was one

[vjohn82]

PS

 

I agree with cerberus... if they want to be utter t****** about the entire situation then the heavy handed letter is the route to go.

 

That said, have you heard about all of Shop Direct's employees? They are due to be made redundant soon because the group is moving the operation abroad to cut costs. Perhaps some of the utter morons who have been harping on about debt liability will soon struggle to pay their own?

[vjohn82]

Here's the link:

 

BBC News - Shop Direct plans 1,500 job cuts

[hulldebtor]

Will pass the message and options to my neighbour - thanks once again to both - as usual great, sound advice

Thank you!

[palomino]

Is it true that these 'missed payment admin' charges have no substance and legality?

 

It depends on your agreement - which is why obtaining a copy in order to check this is so important

[vjohn82]

It depends on your agreement - which is why obtaining a copy in order to check this is so important

 

I disagree to a certain extent; the missed payment admin charges have to reflect the actual losses the company has suffered as a result of you being unable to meet your commitment to pay on time.

 

If they cannot prove the loss, or the value of such a loss, then it is classed as a contractual penalty and these are not valid under English law.

 

There are instances where the company will incur such a loss but Shop Direct have a tendancy to charge £12 for the missed payment and then £12 for a letter to be sent out; the letters are automated as is the payment system. It takes 14 days for the missed payment to filter through to the collections team for a phone call.

 

Therefore I doubt £24 is a valid sum for automated responses and I am sure others would agree.

 

Despite the above Shop Direct would have to prove in court the value of these losses if they wanted to issue proceedings.

 

I myself, after a number of weeks fighting, removed ALL of the charges on 4 accounts across the Shop Direct group to the value of £456. It can be done, but you need to make sure your letters are addressed to the company solicitor "S. Beat" (not sure if they are male/female).

[palomino]

Good point. But this relies on there being a clause that they can make these charges. The penalty nature of any such charges is a corollary - but highly important as you point out.

 

On the other hand if there is no provision for 'admin' charges in the agreement then they can't be charged at all. Hence the necessity for examining the agreement.

[cerberusalert]

The 'charges' issue is a non runner in this case anyway as they have failed to produce an 'executed' agreement & cannot produce one by their own admission.

Post# 22

we refer to a recent request for a copy of your credit agreement

unfortunately we are unable to locate a copy of an executed agreement for your a/c, but for your info we enclose a copy of the agreement which applied to this type of a/c

[vjohn82]

Good point. But this relies on there being a clause that they can make these charges. The penalty nature of any such charges is a corollary - but highly important as you point out.

 

On the other hand if there is no provision for 'admin' charges in the agreement then they can't be charged at all. Hence the necessity for examining the agreement.

 

I think we agree but on different points.

 

I doubt any firm would proceed to court without terms and conditions that stated contractual charges would be levied.

 

I also know how Shop Direct work and they tend to never send out signed agreements (for reasons I cannot divulge right now due to confidentiality reasons). Needless to say if they took it court, they would produce one of their "standard" agreement contracts which contain the £12 penalty clause.

 

The case the OP needs to make is that they have no signed credit agreement, which I think is the crux upon which this case would rest upon.

 

What I am trying to say is there is no point "assuming" there is no contract in place which allows charges to be levied because Shop Direct produce contracts that do have this clause.

 

[vjohn82]

The 'charges' issue is a non runner in this case anyway as they have failed to produce an 'executed' agreement & cannot produce one by their own admission.

 

I agree completely; they still need a signed agreement for enforcement in court.

[hulldebtor]

Just to update, ShopDirect yesterday sent my neighbour a letter stating they will not be pursuing the 'debt' anymore, although they consider their 'charges' 'reasonable'

If these fools had accepted a tenner a month from a single unemployed mum, this debt of £60 would have been paid off by now. Instead, 9 months later, they are giving up the ghost. This is incredible, these people must have the intelligence of a bicycle.

Another person, via ma, helped by the good folks on CAG - many thanks!

[cerberusalert]

Drinks all round in the Greenwood.