Lost24 v Next Directory Storecard Default Removal

[lost24]

Hi there,

 

I am trying to get a DN removed from my credit file by Next Directory.

 

I was in financial difficulty in 2005 which is now under control, Next transferred my account to an agency in December 2005, when they would not accept my offers of repayment (all other creditors did except Next & Sainsburys Visa). The agency then accepted my offer and I have been paying them ever since under a DMP.

 

On looking at my credit file they have issued a DN against me on 13/12/05 which I did not receive. I only received statements from them and then the letter from the DCA.

 

I looked on here and started the process to try get the DN removed as follows: -

 

19/04/07 (RD) 1st letter requesting CCA, true DM & deed of asignement & payment of £1 - which was cashed on 25/04/07.

 

No reply

 

04/06/07 (RD) 2nd letter - advising them that they did not provide info requested - 44 days since letter sent, asking them to remove DN or provide information.

 

12/06/07 1st Reply from N -

 

Thank you for your recent letter regarding your Next Directory account.

I write to confirm that Next does not hold a signed credit agreement for you. Under

section 127 (3) of the Consumer Credit Act 1974 this debt is therefore unenforceable.

We must inform you, however, that we have received legal advice that an unenforceable

debt is still a debt.

When a customer opens an account with the Next Directory they are required to agree to

our Terms and Conditions as provided in the reverse of the Directory, and on our

website. By placing orders and accepting delivery of goods, a customer is deemed to

have accepted these Terms and Conditions.

As the goods that have been charged to your account have been ordered by and

delivered to you, without payment in full having been made for them, your account

remains in debt to Next Directory.

This debt has not been assigned but is being managed by MoorcroftDebt 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, and there is

no known requirement to provide you with certified copies.

A default entry willtherefore remain on your credit reference file, which may affect your

ability to obtain credit in the future. Making payment to clear the balance will enable

your credit files to show as satisfied.

[lost24]

I replied to the above on 14/06/07 : -

 

Thank you for your letter dated 12th June 2007 in response to my letters dated 19th April 2007 and 4th June 2007.

Please note the following: -

1) My letters dated 19th April 2007 & 4th June 2007 (sent recorded delivery) requested that you issue me with certified copies of the CCA, Default Notice and a statement of the account. You have failed to provide me with these.

2) With no credit agreement in place can you let me know on what legal basis you are authorised to issue a default notice on my credit file and indeed access my credit file.

3) The copy of your letter dated ‘November 2006’ is clearly not a Default Notice as required by the CCA 1974. It does not clearly state the information required on a default notice and this letter is also undated.

Regardless, this letter was never received by myself.

As there is no CCA agreement, (and you have failed to provide a Default Notice) there is no contract with yourselves, therefore the Default Notice placed on my credit file is not in accordance with current regulations and should be removed with immediate effect.

In light of the above I respectfully request that in light of the above, you remove this Default Notice from my credit file with immediate effect.

I request written confirmation from yourselves that this notice has been removed from my credit file within seven working days or I will have no alternative but to report this to the Information Commissioner, The Financial Ombudsman and the Office of Fair Trading.

[lost24]

I have now received a reply dated 26/06/07 - received on Monday 9/07/07 -as follows: -

 

To confirm our position regarding your account, Next Directory accepts, as advised previously, that

we do not hold a signed credit agreement for your account. Therefore Next cannot issue you with a

certified copy of the CCA,as one does not exist.

You have also requested an original copy of your Default Notice and as far as I am aware, there is

no requirement under the Consumer Credit Act to provide you with a certified or original copy.

However, you have been provided with a copy, sent on 14thJune 2007, and we are not obliged to

prove the delivery of the original notice.

We obtained your consent to process your data when you supplied your personal information at

the point of applying for your account. I attach a copy of an account opening coupon for your

information. The same information is provided if you open an account via the Internet or by

telephone. Youwillsee that the notification details how data willbe processed at the account

opening stage. Youconsented to the processing of your data by proceeding with the account

application, and as in the correspondence we have received from yourself, you have not denied

opening the account, or ordering goods and receiving them, we have no reason to believe that this

consent is not valid.

The operation of the account is also conditional upon accepting the Next Directory Terms and

Conditions of Trading which include the Data Protection notification. I enclose a copy for your

information. When you placed orders on your Next Directory Account, you accepted the Terms

and Conditions of Trading, which include providing consent to process your data in accordance

with the notification and the default willtherefore remain on your credit file.

Further to your request, I have enclosed a copy of all statements we currently hold on our

systems, and to obtain any archived information, you would need to make a Data Subject Access

Request, and enclose a cheque for £10.00, before we could retrieve this information.

With regard to point 3 of your letter, I am unsure as to what information you believe should have

been included on the default notice. If you could indicate what this is, we will, of course, look into

the matter further.

Again, thank you for your letter and I hope that the above information helps to clarify the

situation.

 

I would really like some help/advice in structuring my reply - as I understand it if there is no CCA there is no contract & therefore no breach, also I have never received a default notice from them - the copy of their letter which they claim to be a default notice does not as far as I am aware contain the required information - regardless I ahve never seen this before.

 

this is the so called copy DN : -

[lost24]

equiredpayment£:_

Payment due by: 6 December 2005

Dear

Your account is now seriously in arrears. A payment of no less than £820.12must be

made by 6 December 2005 if you are to prevent your account automatically

transferring to a Debt Recovery Company.

Call our Credit Card Hotline today on 0844 844 8264

Failure to respond to this letter may result in

1. Additional costs being added to your debt

2. A default will be registered with our Credit Reference agency

which may affect your ability to gain credit for up to 6 years

3. A collector calling on you at home

4. A summonsbeing issued against you for the total outstanding

balance

5. You will no longer be able to trade with Next Directory

Our Telephone Advisors are available anytime Monday to Friday 8am - 9pm,

Saturday 8 am - 2pm and Sunday 1Dam- 2pm.

Yours sincerely

In addition to our normal payment methods, payment to your

account may also be made via the internet at NEXT - NEXT Online Shopping or via

our automated payment system on 0800 5877758, please allow 3 days

for your payments to reach your account.

B Holmes

Collections Department

 

According to Insolvency UK website - a DN should contain

i) description of agreement sufficient to identify

ii) name & postal address of trade

iii) name & postal address of customer

iv) statement that the notice is a default notice served under section 81

(1) of CCA 1974

v) details of part of agreeement which has been breached

vi) details of nature of alleged breach specifically

vii) options to correct alleged breach including dates - at least seven days after the service of the notice

 

Also a statement showing date for action before further action should be clearly shown .

[lost24]

This is a letter that I found which i am planning to send - any advice/amendments would be appreciated - it is either this ro draft a letter confirming what info should eb on a DN?

 

This is quite confusing ......

 

I refer to my letter dated 19th April 2007 sent by recorded delivery, and subsequent letters dated 4th and 14th June 2007

You have failed to acknowledge these requests in any way, whether by confirmation of receipt of the letter or by supplying the requested documents. The documents I requested should be readily available as proof of your legal right to collect this account.

In my letter dated 19th April 2007 I made a formal request for a copy of the signed, executed credit agreement for the above account under Section 77(1) and Section 78(1) of the Consumer Credit Act 1974 and a true signed copy of the Deed of Assignment. In addition a full statement of my account should have been sent to me detailing all debits and credits to the account, along with any other documents mentioned in the credit agreement.

You are reminded that you are obliged to supply these documents, whether you are the original creditor or not, as defined under Section 189 of the CCA 1974.

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, your company commit an offence. These time limits expired on 9th May 2007 and 10th June 2007 respectively.

In your letter dated 12th June 2007 you confirmed that you do not hold a signed CCA agreement and that under Section 127(3) of the CCA 1974 this debt is unenforceable.

As you are no doubt aware, Section 78(6) states:

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; and

(b) (b) If the default continues for one month he commits an offence

Therefore on 11th June 2007 this account became unenforceable at law and no further payment will be made by myself to the account, as you have failed to comply with a request for a true signed copy of the said agreement, and other relevant documents mentioned in it, and failed to send a full statement of the account and failed to provide a true copy of the Deed of Assignment, under the relevant sections of the Consumer Credit Act 1974. Further I do not acknowledge any debt to Next Directory.

I require the following action from Next Directory:

1. All payments made to date to Next Directory for this account should be refunded in full, including interest at the rate of 8% per annum.

2. Removal of all defaults entered by Next Directory. Note this is to be a complete deletion and not merely an amendment.

3. I look forward to compensation under Section 13 of the Data Protection Act 1998 to be offered for the processing of my data in the manner it has been dove over the past two years.

4. After a full refund of all payments with interest and compensation are received by myself, you will required under Section 10 and Section 12 of the Data Protection Act 1998 to cease and deist all manual and automatic processing of my data within your company and any company within your group.

If you do not respond positively to my request, court action may be taken under Section 14 of the Data Protection Act 1998 to force Next Directory or any other company within the group to comply with the refund of all monies paid, removal of all defaults maintained and compensation for damage and distress as a result of unlawful processing. I may also pass the matter to the relevant enforcement authorities including, but not limited to the Financial Crime Branch of HM Treasury, the OFT, the Information Commissioners Offices, Trading Standards, The CSA, The FOS and my local MP.

[lost24]

So - do I send the letter in precious post or reply to their letter of 26/6!!!!! Any help please.....

[steven4064]

lost24

 

The letter looks good apart from a couple of (nit-pivky) points.

 

1) you can't make a request under both s77(1) and s78(1) - its one or the other. In this case it is s78(1).

 

2) last paragraph s14 of the DPA is not appropriate for the demand that they repay the money only for the bit about damage and distress for unlawful processing of data.

 

You just need to reword these two bits - the rest looks good.

 

Steven

 

If this post is helpful, please click the scales

Any opinions are without prejudice & without liability.

Almost everything I know concerning the law I learned from this site

[lost24]

Hi there,

 

Have amended

 

1) to read

In my letter dated 19th April 2007 I made a formal request for a copy of the signed, executed credit agreement for the above account under Section 78(1) of the Consumer Credit Act 1974 and a true signed copy of the Deed of Assignment. In addition a full statement of my account should have been sent to me detailing all debits and credits to the account, along with any other documents mentioned in the credit agreement.

2) last parag.

If you do not respond positively to my request, court action may be taken under Section 14 of the Data Protection Act 1998 to force Next Directory or any other company within the group to comply with the removal of all defaults maintained and compensation for damage and distress as a result of unlawful processing. I may also pass the matter to the relevant enforcement authorities including, but not limited to the Financial Crime Branch of HM Treasury, the OFT, the Information Commissioners Offices, Trading Standards, The CSA, The FOS and my local MP.

I have also amended the dated to the 8th May & 8th June - perhaps I should have sent the above letter as the second letter in retrospect!!!

If they do not reply favourably what are my options - to report them ?? What court action do i take..

 

[steven4064]

I am not to sure of what happens if they do not reply favourably (or at all!). Let's se what happens and find out the next stage in the meantime. Someone else may be along who can help - otherwise PM a mod

 

Steven

 

If this post is helpful, please click the scales

Any opinions are without prejudice & without liability.

Almost everything I know concerning the law I learned from this site

[hisholinessthepope]

Lost I am looking to issue proceedings against Next at the end of August hopefully - take a look at my thread. If you would like to see the POC then please PM me.

 

http://www.consumeractiongroup.co.uk/forum/general-debt/94309-no-cca-agreement-unenforceable.html

[doo]

Lost, any updates?

[lost24]

Hi there,

 

Sorry i've not been in touch - Next replied and have said the DN still stands.

 

I am going to reply stating that they have not followed the corrrect procedures - but I don't think i'm going to have much luck!!!!

[nocredit]

hi

was wondering if you've got any further with this? i recently started my own attemts to get default removed by next & would appreciate any input http://www.consumeractiongroup.co.uk/forum/legalities/114086-dont-want-settle-unless.html

[nocredit]

did you refer this to the information comissioner?

I sent a complaint to them about next directory in december; does anyone know how long this takes to receive a reply?