K&co Advice on 10K Kandco Debt now passed to Lowells.

[vonny1]

Hi all Id really appreciate some advice please. I have 3 large catalogue debts that due to my recent financial situation I am unable to pay.

Freemans - £1200.00, which I'm being chased for by DCA Moorcroft.
Simply Be - £3600.00, which I'm being chased for by Fredrickson International
K&co / KandCo - £10'000.

I have been given some good advice that if catalogue company cant come up with a signed true copy of your credit agreement and the account was taken out before April 2007 the debt is unenforceable.

So I'll give you a brief low down on where I am with these debts.

I sent CCA request to Moorcroft to which they keep saying their client sent me one when I first opened the account and that should be good enough and they sent me my £1 postal order back. I have decided just to ignore their letters now..

I sent CCA request to Simply Be to which they sent me a credit agreement that they had written my name and address in but NO signature from me and the account was opened Feb 2007 and they sent it over a week past the 12 day dead line so I sent them an account in dispute letter.

A week later I had a letter from Fredrickson asking for payment, I wrote to them saying the account was in dispute, they replied saying they had put the account on hold while they look into it. Could someone tell me if Simply Be have to come up with a true signed copy of my credit agreement as the account was opened pre April 2007 for the debt to be enforceable??.

I sent kays a CCA request as the account was opened in 2006, they just sent me an A4 sheet of paper with a list of things on for a credit agreement, no names or details of my account. I sent them an account in dispute letter and received a letter back saying that just because the debt is unenforceable doesn't mean I don't have to pay it and they want their money.

Sorry Ive put such a lot here, any advice on these debts and if I'm doing the right thing by disputing them would be greatly appreciated. Many thanks.

[Inca]

Re: advice please on catalogue debt

When did you last make payments or acknowledge these debts?? Oh and

[basa48]

Re: advice please on catalogue debt

I had a run in with a catalogue company some years back. Nothing like the amounts you are into though.

Basically they sent me a slip of paper with my signature on and totally separately a copy of their latest T&Cs. They also pointed out that I had traded with them for a number of years and that the terms were included in the catalogues they sent me from time to time.

I actually sued them in an attempt to reclaim all the interest I had paid on my account over the years (after all I reasoned/argued if there was no credit agreement that i had signed then it follows there was no agreement to any interest on any credit I had benefited from).

I failed to get my interest back because the judge argued the catalogue had already written off my outstanding debt which would probably account for any interest I had previously paid.

He did say that without a signed credit agreement from the catalogue the debt was unenforceable.

And that is the crux. To be successful in suing a debtor and in the face of the debtor stating they have never signed a credit agreement (which is quite common with catalogues, especially back pre 2007) the creditor must almost always have to produce a true copy (preferably a photocopy or readable microfiche copy) of the signed credit agreement.

Do be warned however there have been reports that creditors have successfully argued that their procedures preclude credit being provided without a correctly executed agreement in place and they have just misplaced it.

[FlamingParrot]

Re: advice please on catalogue debt

Hi all Id really appreciate some advice please. I have 3 large catalogue debts that due to my recent financial situation I am unable to pay. Freemans - £1200.00, which I'm being chased for by DCA Moorcroft. Simply Be - £3600.00, which I'm being chased for by Fredrickson International and K&co - £10'000. I have been given some good advice that if catalogue company cant come up with a signed true copy of your credit agreement and the account was taken out before April 2007 the debt is unenforceable.

That applies to ANY debt that falls under the Consumer Credit Act, not just catalogue companies. They have to provide a copy of a properly executed agreement containing all the prescribed terms.

So I'll give you a brief low down on where I am with these debts. I sent CCA request to Moorcroft to which they keep saying their client sent me one when I first opened the account and that should be good enough and they sent me my £1 postal order back. I have decided just to ignore their letters now..

No, that's not good enough! They have an obligation to provide you with a copy of the agreement. If they are referring to 'their client', then they haven't bought the debt, they're just acting as collection agents.

I sent CCA request to Simply Be to which they sent me a credit agreement that they had written my name and address in but NO signature from me and the account was opened Feb 2007 and they sent it over a week past the 12 day dead line so I sent them an account in dispute letter. A week later I had a letter from Fredrickson asking for payment, I wrote to them saying the account was in dispute, they replied saying they had put the account on hold while they look into it. Could someone tell me if Simply Be have to come up with a true signed copy of my credit agreement as the account was opened pre April 2007 for the debt to be enforceable??.

Responding after the deadline does not render an agreement unenforceable, however, it would be interesting to see if what they sent you is really a proper agreement, but we can't tell unless we see it. Could you remove your personal details and post up what they've sent you?

I sent kays a CCA request as the account was opened in 2006, they just sent me an A4 sheet of paper with a list of things on for a credit agreement, no names or details of my account. I sent them an account in dispute letter and received a letter back saying that just because the debt is unenforceable doesn't mean I don't have to pay it and they want their money. Sorry Ive put such a lot here, any advice on these debts and if I'm doing the right thing by disputing them would be greatly appreciated. Many thanks.

Absolutely, you are doing the right thing! :thumb: And it looks like you've got a result if Kays (which is your larger debt) admit in writing that the debt is unenforceable! :cheer2: :cheer2:

They can say what they want, without an agreement, they can't recover through the courts, in plain English, they are stuffed! :grin:

[vonny1]

Re: advice please on catalogue debt

Thanks for the advice, its very much appreciated. I understand the debt to Simply Be is not unenforceable because they we're late sending me the credit agreement but will it be so because what they sent me was not a true copy of my agreement and has not got my signature on and account was opened pre April 2007??. (I know they haven't got one because I never signed one). I don't know how to put a copy of it on here when I try to scan it my scanner just says error try scanning from computer!! Like I said though I know its not a true copy because they never had one. Many thanks.

[vonny1]

Re: advice please on catalogue debt

could I just ask as well, can you still receive a statutory demand if a debt is unenforceable?? many thanks.

[CleverClogs]

Re: advice please on catalogue debt

could I just ask as well, can you still receive a statutory demand if a debt is unenforceable??

Yes, especially if the creditor is Lowells, otherwise known as the Leeds losers.

It should be quite easy to get the SD set aside, however, with costs against the creditor.

[FlamingParrot]

Re: advice please on catalogue debt

Thanks for the advice, its very much appreciated. I understand the debt to Simply Be is not unenforceable because they we're late sending me the credit agreement but will it be so because what they sent me was not a true copy of my agreement and has not got my signature on and account was opened pre April 2007??. (I know they haven't got one because I never signed one).

If you never signed an agreement, they couldn't have one. It's common for those catalogues not to have asked people to sign an agreement before sending out the goods.

don't know how to put a copy of it on here when I try to scan it my scanner just says error try scanning from computer!! Like I said though I know its not a true copy because they never had one. Many thanks.

You can take a picture with a digital camera or mobile phone. hoto:

could I just ask as well, can you still receive a statutory demand if a debt is unenforceable?? many thanks.

You can receive a SD for anything, as long as the amount claimed is over £750. A SD is just a document in a prescribed format that you can download, for example, here: https://www.gov.uk/statutory-demands...atutory-demand

That means if I had your address, I could also serve you with one. However, you also have the opportunity to have it set aside. Celestine the site owner :yo: has been successful in having quite a few withdrawn or set aside. :first:

[CleverClogs]

Re: advice please on catalogue debt

Celestine the site owner :yo: has been successful in having quite a few withdrawn or set aside. :first:

Lowells - the gift to the legal profession that just keeps giving! msl:

[Inca]

Re: advice please on catalogue debt

Lowells - the gift to the legal profession that just keeps giving! msl:

I think Lowells are terribly kind & thoughtful to keep giving Celestine target practice

[vonny1]

Re: advice please on catalogue debt

Can I ask what exactly is a reconstituted credit agreement, Is it just a credit agreement that the creditor has decided to write your information on because they have no original signed copy?. Ive read on some of the posts on here that a recon will suffice in some situations. If that is the case why don't all creditors produce one of these and then no debt would be deemed unenforceable? many thanks.

[Celestine]

Re: advice please on catalogue debt

Yes a recon can suffice, it should show your name and address at time of agreement being made, name of creditor, cancellation rights AND the original terms which were with the agreement at the time you signed it.
Our member Fuzzybrain had this recently, just a plain sheet of paper with her name and a cancellation box.....but it was the accompanying terms which proved they were not her original terms and won her case.



http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html
The following is a brief summary of the principal findings and conclusions set out above:

1. (1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;
   (2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;
   (3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;
   (4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;
   (5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;
   (6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;
   (7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;
   (8) The claims that there was an unfair relationship and an IEA in Adris should be struck out or dismissed. The claim that there was an IEA in Yunis should be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.

For info
173 ~~~~ The parties in Carey have helpfully agreed the following principles. The fourth one was added by Mr Uff, with their agreement. No other party takes issue with them. The OFT has formulated the matter in a slightly different way but accepts these principles are close to its position.

1. (1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;
   (2) A document need not be a single piece of paper;
   (3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document;
   (4) Additionally, a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document;
   (5) Accordingly, where the debtor's signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.
   
   
   174 ~~As a matter of law, those principles appear to me to be correct, in the context of s61.

[CleverClogs]

Re: advice please on catalogue debt

I have said so before and I shall say so again: I sincerely believe that Waksman was wrong.

The requirement to provide a debtor with a copy of an executed agreement was hardly novel. It had not been added to the Consumer Credit Act 1974 after that statute became law but had been there all along. Nor should it have been an onerous obligation upon the creditor merely to retain the original document should it be needed. Even if the creditor was running out of storage space for such documents, means existed at the time to make a high resolution image of the documents on microfilm which could then be reproduced at some date in the future.

(However, such an image would be of limited use if one were to challenge the validity of a signature; a forger might copy the shape of a signature quite well, but not the way that the pen pressure of the original changed as it was signed, which could be revealed by ESDA (link) or imaging with oblique lighting.)

I rather take the view that, if a creditor is too lazy, too stupid or too arrogant to comply with even that simple requirement, then that creditor does not deserve to be repaid. Moreover, it is difficult to understand how the relationship between the debtor and the creditor could be anything other than unfair, when the debtor is required to satisfy all of his obligations under the agreement yet the creditor is excused from compliance with even the simplest obligation.

[CleverClogs]

Re: advice please on catalogue debt

The fourth one was added by Mr Uff

Wouldn't it have been amusing if his first name had been "Fock"? :rofl:

[basa48]

Re: advice please on catalogue debt

Yes a recon can suffice, it should show your name and address at time of agreement being made, name of creditor, cancellation rights AND the original terms which were with the agreement at the time you signed it.

I'm not sure I can agree with this.

Don't forget in Carey it was the debtors who brought the case and thus the onus was on them to show that a reconstituted agreement was INvalid. Also this case was where the debtors were attempting to have debts declared unenforceable under S78 i.e. Duty to give information......

All Waksman said (IMO) was that a reconstituted agreement was sufficient relieve the creditor of this duty.

However (and to me this is the crux) he also said:

[132] the fact that it is not the purpose of s78 to provide proof of a properly executed agreement,

[53] Second, it assumes that there is no obligation on the debtor to make out at least some sort of positive case as to improper (or non-) execution of the original agreement. If he does and for example asserts positively that although he has been using a credit card agreement for years he never actually signed an agreement, or one that complied with s61, the creditor may well have to try and find the original in order to deal with that allegation.