Urgent!!! Please Help!

[monopoly23]

I sent a CCA request to Next on 30th May. The royal mail website still doesn't say it's been delivered, though it says the same for two other letters even though responses have been received. So I don't know if they have it yet.

 

Anyway, for the last two months since we moved house, we have been trying to contact next to change our address with them. This is because they wouldn't accept payment over the internet as the card's address had already been changed so it did not match their records.

I have also tried calling them loads of times, but by the time I get off hold, the batteries in the cordless phone have gone dead because they leave me waiting so long.

 

Today we received a load of letters forwarded from our old address. In them was one letter from Next. It was a court claim for the total amount owed plus court costs and solicitors fees totalling around £257.42.

The last bill we had from them is dated 8th February and they haven't sent us anything to ask for payment. No letter before action.

All this letter says is that an immediate payment is required of £61.74-nothing about taking us to court.

 

We rang collections and they put me straight through to their solicitors. I explained what had happened, with moving and not being able to pay online or get through on the phone, and they said that I should put it all down on the defense part of the response pack.

 

I dont know what to do. We cant afford to pay all this, and I dont think its right that we should have to pay their court and solicitors costs, just because I was unable to get through to them and pay.

Also, I don't know if the account is in dispute due to the CCA request, but even if it is, they wouldn't have received my letter until the 31st May at the earliest.

 

Can anyone please help?? Should we defend and if so what exactly would we write?

 

Sorry for it being so long but I really don't know what we should do!!!

[monopoly23]

Can't anyone help with this??

 

[389shell]

Well you can only pay what you can afford and any judge in the land will say this so don't worry about that, you will only pay by installments. Now I am not sure about the costs involved although I am sure there will be someone along soon who can help you there. Why don't you just give them a quick ring to see if they have received any correspondence from you now you have their contact details, at least it will set your mind at rest.

 

Good luck.

[rory32]

Have you phoned Royal Mail to check that the CCA request was delivered? It sometimes takes weeks for them to update the website. If it wasn't delivered you need to send another one Special Delivery sharpish.

[miss muppet]

Yes, you should defend this, make sure you fill in the section as the solicitors suggested and make it clear that this is Next's fxxk up not yours! If you can fill in details and dates of when you have tried to contact them. Don't worry this will be in a small claims court, but make sure you are well prepared with any back-up evidence you need. They probably won't even turn up and no District Judge would make you pay more than you can afford. With regard to the Royal Mail track and trace, they do sometimes take a few days to come up on site but the stamp on the reverse is enough proof of posting. Just make sure when you fill in your defence that you lay it on really thick about how often you have tried to make contact etc etc- have you got a date for the hearing yet? Just remember too that they only have 12+2 days to produce the agreement before they are in default and if a court date isen't imminent so much the better because after 30 days they will have committed an offence, you wouldn't have any court costs to pay anyway in the small claims court. Keep us posted

[monopoly23]

But it says the total amount claimed is £257.42 but the balance we owed was only £187.42 so they ARE claiming their costs.

It was issued on 30th May and deemed served 4th June I think.

 

Rory- I havent yet called RM but I will tomorrow. Are you saying that even though they've issued a claim, I can still do a CCA request? It wouldn't make any difference to the court would it and it's in their hands now???

 

If I do defend, I can do it on MCOL because that's what they've used. The thing is-I DONT KNOW WHAT TO WRITE!

 

These are the particulars of claim:

The Claimants claim is for the sum of £187.42 being the balance outstanding on the Defendants account in respect of the price of goods supplied and delivered by the claimant to the order of the defendant through its mail order catalogue service together with any charges applied to the account in accordance with the terms and conditions of use.

Full details of the cost of all purchases made and details of agreed payment arrangements have been given to the defendant. The defendant has defaulted in payment.

The claimant claims £187.42

 

Thats it!

Firstly- haven't they heard of punctuation?

Secondly- as they havent provided me with any details of the account since February, or even included the account number in the poc, could I defend the way the banks do and say its insufficiently particularised and embarassing?

 

I would be eternally grateful for any help with this.

 

PS. I dont know the dates of when I've tried to contact them. All I know is they haven't contacted me since Feb. Not even a warning of court action

[rory32]

It wouldn't make any difference to the court would it and it's in their hands now???

 

It would as it's a major part of your defence and under section 127(3) of CCA1974 the court should not be making any enforcement of the debt without it.

 

Anyway, here is a possible defence that tomterm8 previously posted (adapt it to your needs):

 

1. The defendant does not admit or deny the debt, and put the claimant to strict proof thereof.

 

2. On XXX the defendant sent a request under the consumer credit act for a true copy of the executed Credit Agreement, and a statement of account detailing the principal, and all charges and fees made in respect of the debt, the claimant received the request on the XXXXX 2007 by recorded delivery and the claimant has so far failed to send the defendant the required information.

 

I would respectfully submit the debt is unenforceable under the Consumer Credit Act 1974 until such time as the claimant provides the necessary information.

 

3. The claimant states the alleged debts were purchased from XXX and XXX. I have not received a notice of assignment for the alleged debts from the original creditor. I therefore put the claimant to strict proof that privity of contract exists between the claimant and Defendant.

 

4. I have not received a copy of any default notice from the claimant, and ask that the claimant provides the court with a true copy of such a notice, and with some form of proof of postage that this notice was sent to the correct address and was served with the proper notice before this claim was submitted .

 

5. During the period in which the Account [was] operating the Claimant and/or original creditor debited numerous charges to the Account in respect of purported breaches of contract on the part of the defendant and also charged interest on the charges once applied. The defendant understands that the claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

6. The defendant contends that:

 

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the Claimant in respect of any breaches of contract on the part of the Defendant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and under common law.

 

7. Therefore, in addition to asking the court to order the disclosure of the credit agreement, notice of default in the form required by the Consumer Credit Act 1974, and notice of assignment in the form required by the Law of Property Act 1925, the defendant also requests that the court order the claimant to disclose a list of all charges made to the account and a list of the costs associated with each charge for the last 6 years in order for them to prove that the debt amounts to the amount claimed.

 

8. The defendant respectfully asks the permission of the court to amend this defence when the above documents are provided by the claimant.

[monopoly23]

Thanks rory. I'll see what I can do with it.

Any advice on whether I can defend the way the banks do in that their POC didn't even include an account number? Insufficiently particularised and embarassing?

Also, should I just fill out the acknowledgement of service to start with so I get 28 days instead of 14?

[rory32]

should I just fill out the acknowledgement of service to start with so I get 28 days instead of 14?

I would think so. That means if you have to send a CCA request special delivery to Next they have plenty of time to default on it.

[monopoly23]

Ive just noticed something else too...

 

On the last bill I have from them, it says immediate payment of £61.74 is required. The balance at that time was £236.33. For them to be claiming £187.42 means that we must have made payment, and interest has been added since. £236.33 - £61.74 = £174.59. The difference must be interest and/or charges of £12.83. Does that make sense?

[monopoly23]

If I fill out the acknowledgement of service, does that mean I have to defend? I don't know how to write a defense

[sequenci]

If I fill out the acknowledgement of service, does that mean I have to defend? I don't know how to write a defense

 

we can help with that!

[monopoly23]

Im really stressing out now. There's been 112 views of this thread at this point but only 3 people have replied. Can't anyone help me with this? I've never had a court claim against me before and I have no idea how to proceed with this. It's ok to say yes defend, but where do I start? I have no agreement yet and its still saying come back later on the RM website.

What should I do first? Anyone

[monopoly23]

Hi sequenci. Thank god someone has noticed this thread. Was getting a complex

[sequenci]

have you seen rory's post on here? that's good for starters!

[389shell]

Thats what I was thinking, Rory posted on here yesterday with regards to your defence have you read it?

[monopoly23]

I just called RM and this letter is the only 1 out of 6 that hasn't been delivered. Flaming typical isn't it?

So I should send another one today? I thought I read somewhere that you could't do the same request within a certain lime limit though.

[monopoly23]

389 shell- I don't know if I can use that defence until they get the CCA request though. If I use that, then they show a signed credit agreement im screwed arent i?

[389shell]

Of course, sorry about that I am thinking you have sent it and they are in default

[sequenci]

I just called RM and this letter is the only 1 out of 6 that hasn't been delivered. Flaming typical isn't it?

So I should send another one today? I thought I read somewhere that you could't do the same request within a certain lime limit though.

 

gutted

 

if you cast your mind back, can you remember signing an agreement?

[rory32]

On the basis that it hasn't been delivered it would be quite reasonable to send another request (also ask for a statement of account).

 

As they are claiming against you it would also be reasonable to ask that they supply these documents within 14 calendar days of the date of the postmark. This time do send it special delivery though.

[rory32]

If you do this and they don't supply an agreement and then magically come up with one in court it would be inadmissable.

[monopoly23]

Thankyou. I will draft one up now and send guaranteed next day delivery.

Looking ahead, what are my options if they do produce it, and within the time limit?

Have you seen their POC?? Its in post 6. Theres hardly any details in it at all, and there's been nothing in the post.

Sequenci- I honestly have no idea whether I signed anything. The account's been open ages

[rory32]

Have you seen their POC?? Its in post 6. Theres hardly any details in it at all,

That is good though (from your point of view) as they don't really know what they are doing.

 

The account's been open ages

Again this is good - it's less likely they can produce anything. Even if they do it's probably flawed.

[monopoly23]

This is what I sent. The bits I'm going to add are in red

 

Data Protection Manager,

Next Directory,

Desford Road,

Enderby,

Leicester,

LE19 4AT

 

 

 

REQUEST UNDER THE COMSUMER CREDIT ACT 1974

 

Dear Sir/Madam

 

Re:− Account/Reference Number XXXXXX

 

With reference to the above account, I would be grateful if you would send me a true copy of the executed credit agreement and any other document referred to in it. I also require all statements of the account, the amount currently payable and the dates and amounts of any further payments due if no further money is drawn on the account.

 

I understand that under the Consumer Credit Act 1974, Section 78(1)a,b and c, I am entitled to receive a true copy of the executed credit agreement plus the other information on request. I enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act. This payment must be used as specified and not a paid towards any balance on the account.

 

I understand that all this information should be supplied within 12 working days. If it is not supplied within an additional 30 days, the creditor will have committed a criminal offence under Section 78(6b).

 

I understand that under the Consumer Credit Act, creditors are unable to enforce an agreement if they fail to comply with a request for a true copy of the executed agreement under Section 78(6a) of the Act.

 

I look forward to hearing from you.

 

Yours faithfully

 

 

 

 

Monopoly23

 

Does this look ok? Is there anything I should add or take out?

Thanks so much guys.