Smel vs NEXT default

[smel24]

Hi all,

 

I have a similar story to everyone else here. I had a default put on my account but Next have no CCA and no Default Notice.

 

Here is a run down of everything I have done so far....

 

- 2005 Defaulted

- 11.2006 CCA request sent

- 11.2006 £1 Cheque cashed by Next

- 11.2006 Next confirm no CCA hmm then why have you chequed my £1?

- 11.2006 I respond by stating no default notice ever received and I repeat the original CCA request and remind them that they have cashed my cheque.

I also repsond to their no CCA by saying:

 

You also state in your letter that Next Retail Limited does not hold a Consumer Credit Act Agreement with me; Next Retail Limited are however a subscriber to the Code of Practice set out by The Mail Order Traders' Association (MOTA) which states: This Code should be read in conjunction with relevant legislation, including the Consumer Credit Act (see: mota.org.uk/code-of-practice).

- 12.2006 Next repeat their last letter of confirming no CCA. They also blab on about the duty of providing accurate information etc etc. They also say a copy of the default notice is enclosed (but it is not)

- 01.2007 I repsond by repeating myself again - the blue statement above and also tell them that the notice was not included in the last letter.

- 01.2007 Next respond by repeating themselves again with the normal blab. This time they enclose a default WARNING but no notice.

I didn't quite realise this wasn't actually a notice until another CAG member had the same and pointed this out. I had left this on the basis that I didn't know the next step but noe I will proceed.

I have also just noticed on the default warning that it was dated March 2005. They give me notice in the letter to pay by March 2005 to avoid many outcomes including a default (number 2 on their list). My default is registered on my credit file as March 2005. Interesting that they gave me no timeframe whatsoever to pay this outstanding balance in. I think that just adds to my case....

Right, I'm off to do some more research on whether they can default us considering they have no CCA.

Smel

[smel24]

Two things I have just read from their letters to me:

 

1. Next does not hold a credit agreement signed by you. Under section 127 (3) of the Consumer Credit Act 1974 this debt is therefore unenforeable through the courts.

so what, you're telling me you're not governed by the law??!!

2. With regard to filing information relating to the debt with the credit reference agencies, this is covered by the Data Protection Act and not the Consumer Credit Act.

Yeah well, I'm looking into that.

Watch this space...

[smartmartian10]

Subscribing.

 

Next live in their own little world as several of us are starting to discover!

 

I have my own Next thread on the go and am currently checking their interest calcs, chasing a CCA, have stopped payments, and had no reply to my SAR under DPA!

 

http://www.consumeractiongroup.co.uk/forum/store-cards/69695-next-directory-covered-cca.html

[smel24]

Subscribing.

 

Next live in their own little world as several of us are starting to discover!

 

I have my own Next thread on the go and am currently checking their interest calcs, chasing a CCA, have stopped payments, and had no reply to my SAR under DPA!

 

http://www.consumeractiongroup.co.uk/forum/store-cards/69695-next-directory-covered-cca.html

 

Thanks for the link, I'll subscribe.

 

Did you do a SAR because you're claiming charges too? Because I've only done a CCA request (I only want the default gone).

 

Cheers

[smel24]

Right I've found a roundabout but clear link to the CCA from Next...

 

On Next.co.uk you can link to their Privacy Policy.

Under the section The Direct Marketing Association and Trust UK it states:

"Next is a member of the Direct Marketing Association (DMA) and Trust UK and is required to operate within the rules of the DMA's and Trust Uk's Code of Practice. This means that Next operate to a high level of commercial standards which are designed to :

1. Protect your privacy
   
2. Ensure that payments are secure
   
3. Let you know what you have agreed to
   
4. Sort out any complaints

For more information on the DMA and Trust UK click on the icons shown below.

Next is also a member of the Mail Order Traders Association (MOTA) and subscribes to their Code of Practice."

 

I have already been to MOTA's website which states clearly that their code of practice should be read in conjunction with the CCA.

So I then go on to DMA's website and view their Code of Practice: DMA - Document Viewer

 

Under section 10.0 Catalogue and Home shopping it states:

 

Credit 10.6

"Members (this being Next) must ensure that any offers of credit terms comply with the Consumer Credit Act 1974 and the various regulations issued under it..."

 

It does go on to say that they can (but must inform applicants) and will use credit reference agencies to search and pass on data.

 

So this clears up two things:

Next can issue us a default and they ARE regulated under the CCA.

 

I think this is the best link so far in writing to prove they do comply as many of us seem to not have anything referring to the CCA on our documents.

 

Hope this helps! I'm writing up a letter to include this right now.

[doo]

smel, great thread already plenty of info, there is nothing stopping you once you get going (I reckon this one is gonna we as good as your cap one thread). Have just got default removed from cap one - the only other default I have is with Next so will be following your lead. If poss can you post up letters. Was going to delay doing this until other claims finished but think I will start off with a CCA request next week, just to get the ball rolling.

[smel24]

smel, great thread already plenty of info, there is nothing stopping you once you get going (I reckon this one is gonna we as good as your cap one thread). Have just got default removed from cap one - the only other default I have is with Next so will be following your lead. If poss can you post up letters. Was going to delay doing this until other claims finished but think I will start off with a CCA request next week, just to get the ball rolling.

 

Oh brilliant Doo, this is my only other default too! I was going to wait until I'd finished with my partner's Natwest claim but they are going to drag that right out....

 

I will post my letters and their repsonses for you. It's good to see a familiar face!

[smel24]

FIRST LETTER AND RESPONSE:

Me:

I sent the standard CCA request.

 

Next:

I acknowledge that Next Retail Limited does not hold a Consumer Credit Act Agreement signed by you.

A default entry will therefore be made on your credit reference file, which may affect your ability to obtain credit in the future.

[smel24]

SECOND LETTER AND RESPONSE

 

Me:

Thank you very much for your letter dated 20th November 2006.

 

In respect of my original letter dated 06.11.2006 it is the 'Default' notice that I am very concerned about because I have no record of ever receiving such a notice; all paperwork I have received from Next and Moorcroft Debt Recovery Limited (MDRL) is kept.

 

The three requests in the original letter specifically relate to this point and request you to substantiate this information. Could you therefore reply in full to the requests contained in the 06.11.2006 letter of which I enclose a copy. As I have already sent a cheque for the £1 in payment of the statutory fee which left my account on 10.11.2006 I will not make repeat this payment.

 

It is your duty to comply with my requests under the law.

 

You also state in your letter that Next Retail Limited does not hold a Consumer Credit Act Agreement with me; Next Retail Limited are however a subscriber to the Code of Practice set out by The Mail Order Traders' Association (MOTA) which states: This Code should be read in conjunction with relevant legislation, including the Consumer Credit Act (see: mota.org.uk/code-of-practice).

 

My original letter previously indicates that you have until 04.12.2006 to respond before breach of your duties under Section 78 of the Consumer Credit Act.

 

Next:

Further to our previous letter as advised, Next does not hold a credit agreement signed by you. Under section 127 (3) of the Consumer Credit Act 1974 this debt is unenforceable through the courts.

 

Then they blab on about their responsiblities and duties with the credit ref agencies...

 

When you opened your account you agreed to the Next Terms and Conditions which include that information on your account and how you manage it will be provided to the Credit Reference Agencies. These Terms and Conditions were provided to you every 6 months as part of the Next Directory. They are also available on the website.

 

The debt has not been assigned but was being managed by Moorcrfot Debt Recovery on behalf of Next. As the debt has not been assigned an assignment notice has not been issued. However, I enclose a copy of the default notice that was sent to you in March 2005. There is no known requirement to provide you with certified copies.

 

A default entry will therefore remain on your credit reference file....(as before)

[smel24]

THIRD LETTER AND RESPONSE:

 

Me:

Thank you for your letter dated 13th December 2006.

 

Firstly you again state that Next do not hold a credit agreement for this account and that the debt is unenforceable through the courts. I reiterate that Next Retail Limited are however a subscriber to the Code of Practice set out by The Mail Order Traders' Association (MOTA) which states: This Code should be read in conjunction with relevant legislation, including the Consumer Credit Act (see: www.mota.org.uk/code-of-practice).

 

As previously stated I have never received a default notice for this account. In response to my previous letter you quote:

“…I enclose a copy of the default notice that was sent to you in March 2005.”

A copy of the default notice was not enclosed with this letter and I request that you substantiate this data sent to the credit reference agencies used by you that is explained in the Next Terms and Conditions.

 

The three requests in the original letter specifically relate to this point and request you to substantiate this information. Could you therefore reply in full to the requests contained in the 06.11.2006 letter of which I enclose a copy. As I have already sent a cheque for the £1 in payment of the statutory fee which left my account on 10.11.2006 I will not make a repeat of this payment.

 

It is your duty to comply with my requests under the law, alongside the Code of Practice set out by MOTA as stated above.

 

I would request that this data is provided to myself within the next 28 days, if you are unable to provide this data then I must insist that it is removed from my files as unsubstantiated.

 

Next:

They take the pee here by repeating the first two paragraphs of the last letter.

 

I am very sorry that the default notice was not attached with the previous letter, our records show that one was included. Please find enclosed a copy of the default notice that was sent to you in March 2005. There is no known requirement to provide you with certified copies.

 

A default entry will remain....blah blah as before

 

The "notice" enclosed was infact a warning letter to pay up and not an official notice.

[smel24]

Right, I hope all that helps people!

 

This is my LBA that I will be sending:

 

LETTER BEFORE ACTION

 

 

Dear Ms Next rep,

 

Thank you for your letter dated 22nd January 2007.

 

In this letter you enclose “…a copy of the default notice that was sent to you in March 2005.”

However, there are two glaring errors with this:

 

• The enclosed copy is of a letter of arrears and a warning of further action if a payment is not made. It is NOT a copy of a default notice.
  
• The letter clearly states that I was given no notice of a default and therefore no chance to make a payment to avoid this action.

You will notice that the letter was sent March 2005 (and your letter refers to the original warning letter being sent in March 2005) and that I must make a payment by March 2005; my default was recorded in March 2005.

Under the Consumer Credit Act 1974:

A creditor, cannot demand early payment, try to get the goods back or end the agreement without first serving a written notice on you giving you at least 7 days notice of their intention to take such action, (Default Notice).

 

Given that Next are obliged to comply with the Consumer Credit Act 1974 (CCA) you are now in breach of the request that I set out to you on 06.11.06. May I also remind you that you did in fact cash the £1 fee for this request that you have not fulfilled.

 

Under the Next Privacy Policy:

"Next is a member of the Direct Marketing Association (DMA) and Trust UK and is required to operate within the rules of the DMA's and Trust Uk's Code of Practice. This means that Next operate to a high level of commercial standards which are designed to :

1. Protect your privacy
   
2. Ensure that payments are secure
   
3. Let you know what you have agreed to
   
4. Sort out any complaints

Next is also a member of the Mail Order Traders Association (MOTA) and subscribes to their Code of Practice."

 

After reading through the DMA Code of Practice, section 10.0 Catalogue and Home shopping states:

Credit 10.6

"Members must ensure that any offers of credit terms comply with the Consumer Credit Act 1974 and the various regulations issued under it..."

MOTA also state similarly:

This Code should be read in conjunction with relevant legislation, including the Consumer Credit Act.

 

In addidtion to this a credit agreement allows you to pay for something at a later date rather than now. Credit agreements are covered by a law which is set out in the Consumer Credit Act 1974 and only covers agreements for credit up to £25,000, but not more than this.

If you buy goods which you take away with you, but pay the price in instalments this will also be a form of credit agreement; as was my account with Next Directory Limited.

 

Your last letter states that Next do not hold a credit agreement signed by myself. If this is the case then you cannot prove that an agreement ever existed between Next and myself therefore the default is inaccurate data passed on which I did not agree to. Also, if there is no credit agreement then a default cannot be placed due to the fact that a default notice has to comply with the Consumer Credit Act and the relevant regulations (Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993). If a default notice in the proper form is not served, the action cannot proceed, therefore the default has been placed inaccurately on my credit file.

If Next did not hold a credit agreement signed by myself then Next would also have to prove that I agreed to the processing of my data to credit reference agencies. This consent would normally be given by signing an agreement of which Next are claiming does not exist. Next would not be able to rely on any of the conditions of Schedule 2 of the Data Protection Act 1998 as there clearly seems to be no contract/agreement or any implied intention of such. I draw your attention to Directive 95/46/EC Article 2 (definitions) (h) : 'the data subject's consent' shall mean any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed.

 

At no time did I consent and neither was it within the contemplation of mine that I did consent to the processing by you of that data in any manner which would be unfair or inaccurate or which in any way would breach The Data Protection Act 1998. Therefore take notice, given that the account in matter is closed all data should have ceased being processed at the time of closure last year; the date of the last payment made to the account was 17.10.2006. This notice is on the grounds that the processing or continued processing by you of the said data has and will be likely to affect my credit rating and my reputation and cause substantial damage and/or substantial distress to me and my family members in addition to that which has already been caused and that as the processing of the said data in the way referred to in this notice would violate the fourth, first and sixth principles of The Data Protection Act 1998 to do so would be unwarranted.

 

I require that you either substantiate the default with a signed true and certified copy of the original default notice and a credit agreement or the default is removed immediately on the basis that it is inaccurate and has no proof of consent.

 

If you do not comply fully within 14 days then I shall begin a claim against you for the removal of the default plus the refund of the Consumer Credit Act request feeplus a claim under s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit plus a claim under section 13 of the Data Protection Act 1998 plus my costs and without further notice.

 

 

Yours faithfully

 

 

 

Smel

 

Supporting information and facts have been sourced from: NEXT - NEXT Online Shopping, DMA - Home Page, www.mota.org.uk/code-of-practice, c o m p a c t l a w . c o . u k - the leading provider in the UK for legal documents, software and services and www.insolvencyhelpline.co.uk www.opsi.gov.uk, www.cdt.org

 

 

This is their final chance with me, I've given them long enough and I think this letter says everything. They clearly have nothing to back their story up with.

 

Any suggestions are welcome

 

I'm going to try and investigate substantiating my claim of "you cannot prove that an agreement ever existed" and see if where there's no agreement there can't be a default.

 

It won't be posted until Monday so there's plenty of time....

 

BRING IT ON NEXT!

[Dave777]

Further to this, due to the non-existance of a regulated credit agreement, they would need to prove that consent was given for them to process/record your data in the first instance.

 

You would normally give your consent by signing the agreement as the terms regarding the processing of data would be stated therein.

 

They would not be able to rely on any of the conditions of Schedule 2 of the Data Protection Act as there clearly seems to be no contract/agreement or any implied intention of such.

 

I would draw their attention to Directive 95/46/EC Article 2 (definitions) (h) : 'the data subject's consent' shall mean any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed.

 

I would demand these signed terms as one of their disclosures pursuant to Section 10 and 12 of the DPA; a "data subject notice."

[doo]

Smel, have just got back on-line, you have been busy. Have you had a read of all the info in Surlybonds thread, quite interesting.

 

As to my own next default, I was offered to pay my account off at a reduced rate which I did as full and final, I shall have to start some digging as on my credit file there is the default mark and amount still owing which I am not sure if it is the correct amount (it may be the balance as it was before I paid the lump sum off to the DCA). I am now on a mission.....thanks smel

[doo]

Dave makes a good point smel, if they cannot produce CCA then surely legally you have not signed anything to agree to them passing info to third parties.

[smel24]

Further to this, due to the non-existance of a regulated credit agreement, they would need to prove that consent was given for them to process/record your data in the first instance.

 

You would normally give your consent by signing the agreement as the terms regarding the processing of data would be stated therein.

 

They would not be able to rely on any of the conditions of Schedule 2 of the Data Protection Act as there clearly seems to be no contract/agreement or any implied intention of such.

 

I would draw their attention to Directive 95/46/EC Article 2 (definitions) (h) : 'the data subject's consent' shall mean any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed.

 

I would demand these signed terms as one of their disclosures pursuant to Section 10 and 12 of the DPA; a "data subject notice."

 

Very good points there Dave, you are a star, I will add this to my letter which I didn't get round to sending today!

 

Oh and I think a click of your scales are deserved!

 

I'll re-post an edited letter to include this this evening (no of course I'm not at work not doing my work?!)

[smel24]

As to my own next default, I was offered to pay my account off at a reduced rate which I did as full and final, I shall have to start some digging as on my credit file there is the default mark and amount still owing which I am not sure if it is the correct amount (it may be the balance as it was before I paid the lump sum off to the DCA). I am now on a mission.....thanks smel

 

Hey Doo, it's funny because I was offered a reduced rate twice but unfortunately couldn't pay. I ended paying the full amount in installments and when I started this whole default thing they STILL said I owed them money! Thankfully I keep all records of everything and soon put them straight.

[smel24]

PS thanks for the click Doo!

[doo]

Smel, have just checked with DCA as to amount I paid (thought I was going mad) well next have put on my credit file that I owe £902, when in fact it is £402 - has been like this for a year. Have to think about this now - maybe another route open to me if I offer to pay the rest of the amount, any thoughts?

[smel24]

Hang on Doo, how can you owe £402 when you paid a settlement offer?

 

Did you keep the offer letter?

[doo]

Well on my credit file there is a default mark and it tells me that there is still £902 owing on the account, will go back in and check info but it certainly has that figure there, thats what made me check with DCA who today confirmed I paid them £500 in full and final settlement. Shredded all documents but I'm sure DCA will send me a copy, must admit they were extremely helpful, they said they do not send data to CRA but Next should have done and that the payment I made was sent on to Next.

[smel24]

Thanks to Dave I have added some info (all new changes in green in post with LBA) regarding the DPA Schedule 2 and Directive 95/46/EC Article 2.

 

I have also included part of the Notice pursuant to s.10 of The Data Protection Act 1998.

I have also added at the bottom that I'll claim under section 13 of the Data Protection Act 1998 which is compensation for damages caused by that data controller.

Hopefully that will kick them up the bums a little and get them thinking. And at the same time I could be elected for Prime Minister and ban working on Fridays

Will send tomorrow, any comments welcome!

[doo]

Well done smel, I like the additions in green. If you are elected Prime Minister I like the idea of Fridays off but could you also bring the naval guys home from Iran - I'm sure you could manage it with one of your letters lol.

[smel24]

ha yeah! I'll go find them and bring them back....not sure how I'll find them. Oh, I'll get 007 on the case.

[smel24]

Well I sent the letter last week recorded delivery and haven't heard a jackel since. Although I have given them 14 days I will be ever so generous and add on two days given the Easter Holiday so that gives Next until Saturday 21st to get back to me. Which they won't.

 

Let's see......

[saints12]

Hi all.....I'm in the same boat as you Smel . I tried getting them to remove a default on my account but got so p@ssed off with them giving me the run around , I didn't even get the correct default notice just a blank default notice no details on about me . I have just started the process again so will keep you guys updated as I'm not letting this one go . My understanding is if they cannot give me a CCA then I haven't broken any CCA ?