Next CCA

[andylaw]

Hi, hoping you can help me and clarify my thoughts.

I recently sent a request for a copy of the true signed credit agreement, with the £1, to Next.
They sent back a photostat of a credit agreement. this agreement did not have any prescribed terms, was not signed by me or the company, and was just a blank photocopy of a random credit agreement.

The request for a statement of the account went ignored.

I followed up this reply with a formal complaint letter (using your templates) as the 12 day period had passed.

They sent a letter back stating that it does not matter that they cannot produce the CCA, relying on section 3(2) cancellation notices and copies of documents) regulations. they also stated that the section 78(a) only requires then to supply a copy and that it does not have to be signed or be an exact copy.

I replied, again using a template, stating that this is codswallop.

They then sent out a bill requesting payment (i've recieved to requests for payment so far).

They then sent a reply, stating pretty much the same excet for two points:

1. that since i ordered the goods on the account, i am still liable for the balance, regardless of whether a CCA actually exists or not.

2. that they would not be stopping requests for payments, and that the use of my personal information would continue, as permission for this was given when i ordered goods, not through the CCA.

I replied using an adapted copy of your template letter, stating that this was their final opportunity to either produce the CCA or stop requesting payment and processing my personal information. I have threatened complaints to the OFT, TS and the Information commissioner's office.

This final opportunity letter was replied to from Next with another refusal to accept this course of action. they refuse to accept the account is in dispute, again relying on section 3(2).

They also quoted Nigel Cates, OFT Deputy Director for Cinsumer Credit..."if you dont put together an agreement properly it may not be enforceable-we support that but it doesnt mean everyone has a right to get out of debts that they owe. if you owe the debt, you owe the debt."

I have also recieved numerous telephone calls, all of which are ignored, but some calls are coming at 9.10pm-they are calling at least twice a day at the moment.
They have also sent out another bill, with more interest added, and they have made a alteration to my credit file too.

I am currently preparing complaint letters to the three bodies mentioned earlier, but would be appreciative of a little guidance and reassurance that i'm on steady ground.

Kind Regards

K L N

[Mochamoo]

Re: Next CCA

1. that since i ordered the goods on the account, i am still liable for the balance, regardless of whether a CCA actually exists or not.

In my opinion you are liable for the debt, you brought the stuff you should pay for it. I think CCA route should be used to negotiate a repayment plan not just to avoid the debt.


Why are you trying to get the CCA?

Have you sent them a telephone harassment letter to stop the calls ? There is one on here somewhere.

Is the account still with Next or has it been passed to a DCA?

[andylaw]

Re: Next CCA

Hi again.
I was using the CCA to check the rates of interest oringinally.

Yes I had inserted a telephone harassment paragraph to the second letter I wrote to them.

The account is still with next.

I wasnt using the CCA as a debt aviodance means.

I sent the original letter, requesting a copy of the CCA, in their reply they stated that a default would be added to my account as a result.

I thought this unfair, and unlawful. It snowballed from there.

I am not using CCA as a means of debt avoidance. If they produced this, I would be willing to pay.

RegardS

K L N

[Amethyst]

Re: Next CCA

http://www.addleshawgoddard.com/cdc/...e_09_95952.pdf

OFT to issue advice on misleading claims
It has been reported that the OFT is to issue advice on the obligations creditors have under sections 77 and 78 of the Consumer Credit Act over concerns claims companies are misleading debtors about their rights.Those being chased for debts are often told that if creditors cannot provide original copies of credit agreements they can avoid paying. However, Nigel Cates, OFT deputy director for consumer credit, said that the duty on the creditor is to provide a ‘true copy’ – not necessarily a ‘photostat’ including signature. He added: "If you don’t put together an agreement properly it may not be enforceable – we support that but it doesn’t mean everyone has a right to get out of debts that they owe. If you owe the debt, you owe the debt." The OFT last month told the debt collection sector that using neighbours to pass messages to trace people breaches the spirit of its guidance as it has the potential to reveal to neighbours that individuals are being pursued. It said businesses that continue to do this face 1
enforcement action and imposed requirements on debt buyer Link Financial for the practice. Link has addressed the OFT's concerns. Cates said imposing requirements is a deterrent to the whole industry, but they are not designed to be punitive: "When we impose requirements we want that company to continue in business. We just don’t want them to do certain things." (Source: Credit Today, 4 June 2009)

That bit.

Unfortunately its not an OFT issue its a legal and enforcement issue and the law states the debt cannot be enforced if there are errors in the agreement, or there is no agreement, for those signed pre april 2007. So you can rebut that part of their letter quite easily.


the issue of adding defaults to credit files after unenforceable agreements will be covered in one of the cca cases to be held in the high court, I'm not sure when this will be as I havent heard anything about it for a while.

[andylaw]

Re: Next CCA

Thank you.
I will issue a final letter rebutting this piece from the OFT, then issue complaints to the bodies mentioned earlier.
I was originally trying to compare the levels of interest they charge now, and the level of interest they agreed (or not as they cannot provide a CCA) in 2005.
I will keep an eye open for the High Court case too.

Was also wondering....
If this goes to court, would I be issued with a summons?
I have stated to Next that if they take this to court they would have to produce the CCA in court. Is this true, or would I have to raise these issues in court?

Sorry to keep bothering about this. I just want it clear in my mind before I take the next steps.

Regards

K L N

[Mochamoo]

Re: Next CCA

Have you had a look at this ~~~ Consumer Credit Agreements - A Guide ~~~~ inc. Letters - Legal Beagles full of info

[andylaw]

Re: Next CCA

Hi mochamoo.
Yeah, I had read it. But had forgotten the points on court action.
Thank you for the reminder.

I will keep you posted as to the next moves.

Thank you for the help today. It was all much appreciated.

Kind Regards

K L N

[distressedmam]

Re: Next CCA

Subbing with interest

I too asked for my CCA and a calculation of the interest charged on my account as it doesn't appear to tally with the interest on the face of the statement.

They too responded with a snotty letter saying they would now default me, despite me paying each timeon time.

I have received a standard agreement not signed nor completed by either party and they have yet to answer my interest query.

Just wondered if you had heard anything yet? Or what to do next!!

[andylaw]

Re: Next CCA

Hi distressedmam.
I have had no progress at all with Next. And today sent a final letter, a copy of which follows:
[FONT='Verdana','sans-serif']D[/FONT]ear Sir/Madam
I write in response to your letter dated 10th September 2009. With reference to my previous letters, I wish to draw your attention to your company's lack of compliance with my legal request.
I have in previous correspondence requested that contact be made through mail only. I have, since this issue has been in disputed, been contacted by telephone on numerous occasions, some at 9.10pm. These have been noted and filed to be dealt with in a separate complaint if they persist.
May I remind you that continued telephone calls after the receipt of a request not to call may constitute a criminal offence under Section 127 of the Communications Act 2003.

Communicate in writing and ONLY in writing, your telephone calls will NOT be answered.
In relation to your reliance on Nigel Cates’ statement from OFT, may I point out that unfortunately it’s not an OFT issue its a legal and enforcement issue and the law states the debt cannot be enforced if there are errors in the agreement, or there is no agreement, for those signed pre-April 2007.
In your recent letter dated 10th September 2009 you supplied a statement of account showing that the start date was 18/11/2005. As this is pre-April 2007 the old legislation is in effect, not the amended Consumer Credit Act 1974, which cannot be applied retrospectively.
I made a legitimate request for a true, signed copy of the consumer credit agreement, for the purposes of checking the amount of interest you charged at the start to the rate of interest you currently charge the account.
The random Photostat of the consumer credit agreement you sent is not in relation to the disputed account, and does not have any of the prescribed terms, such as the rate of interest applicable.
Your response is inadequate in law. Your persistent calls and requests for payment are unlawful. The persistent calls, some of which are past 9pm are criminally unlawful. A company the size of Next should know the law of the country it operates in.
May I also point out, that by stating that I have not denied ordering or receiving goods, you are implying that I have been unjustly enriched? However, I will direct you to a judgment in relation to unjust enrichment and consumer credit agreements,
Para 46-50 of Lord Nichols of Birkenhead’s Judgment in Wilson and First County Trust [2003] UKHL 40
Restitution
46. Before considering whether section 127(3) is compatible with article 1 of the First Protocol I must digress to deal with two preliminary matters. The first concerns the legal consequences of section 127(3). When a regulated agreement is rendered irredeemably unenforceable by section 127(3), the lender is unable to enforce the agreement. But does he, quite apart from his (unenforceable) rights under the agreement, have a restitutionary claim against the borrower in respect of the money lent? The parties to the agreement intended the money would be repayable in accordance with the terms of the agreement. Inability to enforce the terms of the agreement does not inevitably carry with it the consequence that the borrower may simply keep the money. Retention of the money, it is said, would be unjust enrichment, for which the appropriate remedy would be an order that the borrower repay what was never intended to be other than a loan. Reliance was placed, by way of analogy, on the decision of the Court of Appeal in Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1994] 1 WLR 938. There a bank paid money to a local authority under an interest rate swap agreement, which was held later to be outside the local authority's powers. The local authority had been unjustly enriched and the bank was entitled to a restitutionary remedy.
47. A secondary question also arises: if the lender does have a restitutionary claim, is that a matter to be taken into account when considering whether section 127(3) is compatible with article 1 of the First Protocol?
48. I can deal with these two questions quite shortly, starting with the latter. I am in no doubt that a lender's restitutionary remedy, if he has one, is a matter to be taken into account when considering whether section 127(3) is compatible with article 1 of the First Protocol. The adverse consequences of an alleged infringement of a Convention right cannot sensibly be assessed other than in the round. The real position of the claimant is what matters. If in practice a lender can ameliorate the immediate and directly adverse consequence of section 127(3) by resort to some other right or remedy readily available to him that is a matter to which the court must have regard. I cannot accept the contrary arguments addressed to the House.


49. I consider, however, that there is no relevant restitutionary remedy generally available to a lender in the circumstances now under consideration. The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable. True, the Consumer Credit Act does not expressly negative any other remedy available to the lender, nor does it render an improperly executed agreement unlawful. But when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.
Moving back to the issues of enforceability

As I never signed an agreement with Next, then section 61(1) Consumer Credit Act 1974 was never complied with, as a result the agreement (if there actually was one) is improperly executed as defined within section 65(1) Consumer Credit Act 1974.

If there never was a signed agreement it is clear that s127(3) prevents enforcement and will provide a complete defence to any such claim that Next would seek to bring.
May I also take this opportunity to point out that if you consider court action appropriate, I will be using the CPR for discovery of documents, which will again result in a request for the original consumer credit agreement. If this is not forthcoming I will apply to the court to strike out any action Next decides appropriate.
Finally, there are test cases in progress for the pursuit of payments in relation to defaulted accounts (where an agreement is non-existent, or improperly executed), and for amendments to credit reference agencies.
To summarise, I will not be making further payments until you produce the original Consumer Credit Agreement, signed by both parties, with all the prescribed terms set out as is lawfully required.
Yours Sincerely
hope this helps. but i seriously doubt it. I am waiting now for the following to happen:

1. it gets passed to a debt recovery company
2. they take it to court

i will deal with the debt recovery by sending letter stating the account is in dispute.
I will deal with court action by using the court procedure rules for discovery of documents, which they'll not be able to produce, afterwhich i will apply to the court to strike the action, citing non-produce of documents and wasting the courts time.

Next have however finally admitted that they do not hold a credit agreement for the account.
if you notice in the letter above i cited a case about unjust enrichment, this is because they keep going on about goods being ordered and me not denying this, as such they are implying unjust enrichment, which is not a legal avenue they can take to recover the money owed.....

if they produced the bloody agreement, i would willingly pay....but their attitude towards a legal request stinks!!
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sorry about the layout above.....also i'm also waiting on the result from the test case about the credit reference agencies and chasing defaulted accounts.

[andylaw]

Re: Next CCA

Hello. so i've got a reply to the letter i posted above. and i have a few queries which someone may be able to help me with.
but first the letter.

dear......
i am concerned to learn that you feel the telephone calls we are making to you in relation to the arrears on your next directory account are harassing.
i can advise that any action that is reasonable in the pursuance of a debt is not affected by the Administration of Justice Act. as your account is currently three months in arrears, we are attempting to contact you in order to discuss the status of your account, and come to an arrangement to bring it up to date.
furthermore, the telephone calls made are at reasonable times and at reasonable intervals. our collections department do not attempt to contact customers after 9pm. as such, we will continue to contact you by both telephone and correspondance. also, our practices comply with both the direct marketing association (dma) code of practice on debt collection and calls to customers, as well as the office of fair trading (oft) guidance on debt collection.
as previously advised, our credit agreements do not contain the processing notification required for this purpose, and therefore the fact that we have not been able to locate your agreement, has no bearing on our right to report how you run your account, with credit reference agencies, and has no relevance as to whether the agreement is fair or lawful. we are satisfied that consent has been obtained to process your data in the manner it has been, and we will continue to do so.
during a recent High Court hearing, McGuffick v Royal Bank of Scotland (decision 6/10/09), it was conformed that firms may record accurate information, including registering a default in relation to an account where no executed agreement has been located. Judge Flaux ruled that claimants seeking to prove their credit agreements are unenforceable under the act are still liable for monies owed, "whilst an agreement may be deemed unenforceable....(the lenders rights) will continue to exist but cannot be enforced"
it was decided that demanding payment, issuing a default notice, threatening legal action and instructing a third party to deman payment or otherwise seek to procure payment, was not enforcement action and is therefore acceptable. as this was a high court decision the judgment is binding on county courts.
further to my previous letter, i have discussed this matter with our legal department and we feel we have answered all of your previous concerns, and we will not correspond on this matter unless you have further information you would like to bring to our attention.
yours sincerely......

well, i am waiting now for a log of calls from my phone company to prove the calls which came after 9pm.
my main concerns are:
1. the test case decision (although, not much of a test case if you ask me)
2. next's insistance that they can gleen permission to process personal information, subject to the data protection act, without first proving so with a valid CCA.
3. as next have now admitted that, a) they have no CCA & b) that it is unenforceable (they did so by citing a case which they were using to back up their own argument!!), can they actually take me to the county court? it's a contradiction! we'll imply that we'll take you to court, but in the same breath, its unenforceable!!

any opinions would be welcome

[veilside01702]

Re: Next CCA

Hi Andylaw,
Hmmm... Just noticed a few points in this case :- McGuffick v Royal Bank of Scotland....

13. Correspondence ensued in which MJP threatened proceedings for a declaration of
unenforceability by the court if a copy of the agreement were not produced within 28
days and for an injunction if the claimant’s credit rating were affected. By 11 May
2009, the bank had located a copy of the agreement and wrote to MJP enclosing it and
stating that recovery action would now continue. Through inadvertence, the bank
overlooked that it had not provided a signed statement of account as required by
section 77(1). Anyone ever had a signed statement of account? and why does the statement have to be signed, but not the "True copy" of the agreement?

105. In his reply submissions, Mr Moran realistically recognised that the court was not
going to grant the injunction he sought. He said that he and those who instructed him
were concerned that the court should make some reservation that there might well be
circumstances in which the court might grant such an injunction. I agree with Mr
Handyside that it would be quite wrong to make any such open-ended reservation and
I decline to do so. The availability of injunctive relief depends upon the facts of each
particular case and on the evidence presented to the court in the particular case.
Whether in another case another court might grant an injunction would depend on the
facts and the evidence before that court. I take this as the judge left the door open for each case to stand on it's own merit?

99. Furthermore, even if, contrary to the conclusion I have reached, reporting to the CRAs
did amount to enforcement, it is difficult to see that there would be any purpose
served in granting the injunction sought. That is because the reporting by the bank
merely reflects that the claimant has not paid the sum of £15,066.21 which has been
outstanding since June 2007. The credit record prior to 11 March 2009 showed that by
November 2007, the terms of the agreement had not been complied with, the account
was in arrears and the balance outstanding was £15,066.21. Even if the bank were
restrained from reporting during the period of non-compliance, the credit record
would continue to show those matters, so that no practical purpose would be served
by an injunction. The judge is only stating that in this case he see's no point in serving an injunction as the agreement was produced and found to be executed properly. It was the claimant that had breached the agreement prior to his CCA request by not making his payments. Under different circumstances, I believe a judge might see it differently if No agreement was produced or an unenforcable one.

It seems to me that the judge agree's that every case should stand on it's own merit....
That the only way to stop a lender registering data with a CRA is by a court making the agreement completely unenforceable and void and then seeking an injunction to stop them registering any data with the CRA's?
I read this as the door is still open, if the case in question can stand up to scrutiny, unlike the test case.....?
Why use a case like this as a test case and not one that has an unexecuted, false or missing agreement?
This is only my reading of this case....I might be way off??
Anyone else got any idea's???

[Londoneye]

Re: Next CCA

Andylaw If they have confirmed that there is no CCA, the they have no contract to enforce and it should be a cut & dried case but please be aware that should they produce an agreement at a later stage the court is likely to accept it and, if enforceable, enforce it, ie enter a CCJ against you. You will be the only loser if this is the case as all the legal costs, inclusding your own are liable to be awarded, so us lawyers will continue to get rich and you could be up the swanee! Sorry, don't mean to sound negative, but it's worth considering. How much is the balance btw?

[distressedmam]

Re: Next CCA

Veilside

For information have noticed today that MBNA and M&S have printed off statements and initialled them

Had wondered why

Only one could come up with a CCA!!

[andylaw]

Re: Next CCA

the balance is at £1100.
They have stopped calling now, but have said, via a standard letter, that the account is being transfered to a debt collection agency.
Another letter to the DCA when i receive one from them
yeah, i know that if they produce the CCA i'll have to pay the balance. I have no problem with this. Once they produce the agreement, and i can check interest rates on the account to see if everything is above board, then i'd be quite willing to pay, unless there is a irregularity.
Hopefully I'll be one of those lawyers getting rich soon londoneye, i'm in my last year of law school
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also veilside, very good points regarding the test case which never was.
I guess we'll have to wait for a case which is a little more relevant to our issues....i.e no CCA

[Londoneye]

Re: Next CCA

Have you put the account into dispute? If so, referring the debt to a DCA is another breach and would add further weight to your argument. Surprised you've got time to do this in your final year, get yer head in them books mate :-).