Next and Debt Managers Ltd

[kittycatty]

Just checked my credit file again, and Next have placed more information on it. Default balance is 339.00, ?

I would like to know where they got the figure from as the last letter from debt managers was for 223.00.

 

Any ideas?

[The GodMother]

making it up as they go along.

 

they can place a deafult on your acc without a deafult notice and without a valid cca.

 

I would just sent the F+F to next and contact the CRA BY LETTER pointing out that Next have no valid cca and they have deafulted you for a incorrect amount.

 

Remember to include with the letter a copy of your cca, a copy of the letter the DCA sent and any other letters you have recieved from them regarding this.

 

The CRA with then act on this info. I dont know exactly what they will do but they will act as i have been promised that by equifax and experian.

[kittycatty]

Thanks GM.

 

Im still trying to tweak the F+F letter though.

[The GodMother]

post up what u have and i will look.

 

Also PM pt2537 with a link to the thread an ask him to have a look.

 

if you want to know how to add a link i will explain.

[kittycatty]

This is what I have but it sounds very abrupt.

 

 

Re: my request under the Consumer Credit Act 1974

Thank you for your letter dated 04 September 2006, received on the 04 April 2008 the contents of which are noted

Please note the address at the top pf this letter as the last letter I received from your company was addressed to an old address.

 

The Consumer Credit Act 1974 demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

As you now have confirmed that The Next Directory does not hold a credit agreement, I will pay you the sum of £50.00 as FULL and FINAL payment on this account. I will only pay this money to you if you agree to certain conditions.

1) All adverse data is removed from all credit reference files.

2) This offer is made on the clear understanding that, if accepted, neither you nor any associate company will take any other action to enforce or pursue this debt in any way whatsoever and that we will be released for any liability

3) I am completely discharged from this debt

4) That you confirm in writing within 7 working days your acceptance of these conditions.

The Consumer Credit Act allows 12 working days for my 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.

As you are well aware this debt is unenforceable in the courts and should you not accept this proposal and decide to pass this to any other collection organisation I will report your company to The Office of Fair Trading, Trading Standards and the Financial Ombudsman.

If you fail to remove any adverse data with regards to this account from all credit reference agencies I will make a formal complaint to the Information Commissioners Office, and if necessary proceed with formal action through the county courts.

 

To register information with a credit reference agency, you must have written consent from the data subject to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

No other correspondence will be accepted

I trust this out lines the situation

 

Regards

[The GodMother]

well it looks ok but there are a few things.

 

Firstly. it should say relised FROM all liability.

 

Number 3 is not needed as it is the same thing.

[The GodMother]

you could also put in that all charges are removed from the debt.

 

These must include, Late payment fees, admin charges and interest charges. you know the things they normally add on to a statement.

[kittycatty]

Hi GM thanks for that, is this better?

 

Thank you for your letter dated 04 September 2006, received on the 04 April 2008 the contents of which are noted

Please note the address at the top pf this letter as the last letter I received from your company was addressed to an old address.

 

The Consumer Credit Act 1974 demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

As you now have confirmed that The Next Directory does not hold a credit agreement, I will pay you the sum of £50.00 as FULL and FINAL payment on this account. I will only pay this money to you if you agree to certain conditions.

1) All adverse data is removed from all credit reference files.

2) This offer is made on the clear understanding that, if accepted, neither you nor any associate company will take any other action to enforce or pursue this debt in any way whatsoever and that I will be released from any liability

3) That all late payment charges, admin charges and interest be removed from the account.

4) That you confirm in writing within 7 working days your acceptance of these conditions.

The Consumer Credit Act allows 12 working days for my 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.

As you are well aware this debt is unenforceable in the courts and should you not accept this proposal and decide to pass this to any other collection organisation I will report your company to The Office of Fair Trading, Trading Standards and the Financial Ombudsman.

If you fail to remove any adverse data with regards to this account from all credit reference agencies I will make a formal complaint to the Information Commissioners Office, and if necessary proceed with formal action through the county courts.

 

To register information with a credit reference agency, you must have written consent from the data subject to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

No other correspondence will be accepted

I trust this out lines the situation

 

[The GodMother]

Hi GM thanks for that, is this better?

 

 

Thank you for your letter dated 04 September 2006, received on the 04 April 2008 the contents of which are noted

Please note the address at the top of this letter as the last letter I received from your company was addressed to an old address.

 

The Consumer Credit Act 1974 demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

 

As you now have confirmed that The Next Directory does not hold a credit agreement, I will pay you the sum of £50.00 as FULL and FINAL payment on this account. I will only pay this money to you if you agree to certain conditions.

1)All adverse data is removed from all credit reference files.

2)This offer is made on the clear understanding that, if accepted, neither you nor any associate company will take any other action to enforce or pursue this debt in any way whatsoever and that I will be released from any liability

3)That all late payment charges, admin charges and interest be removed from the account.

4)That you confirm in writing within 7 working days your acceptance of these conditions.

The Consumer Credit Act allows 12 working days for my 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.

 

 

As you are well aware this debt is unenforceable in the courts and should you not accept this proposal and decide to pass this to any other collection organisation I will report your company to The Office of Fair Trading, Trading Standards and the Financial Ombudsman.

If you fail to remove any adverse data with regards to this account from all credit reference agencies I will make a formal complaint to the Information Commissioners Office, and if necessary proceed with formal action through the county courts.

 

To register information with a credit reference agency, you must have written consent from the data subject to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

 

 

No other correspondence will be accepted

I trust this out lines the situation

 

yep it looks ok to me but paul will no more. Just the one mistake.

[pt2537]

Dear sirs,

 

Thank you for your letter dated xx/xx/2008 the contents of which I note. I must say I am rather bemused as to the contents of your letter and the glaring inaccuracies contained within it.

 

I wish to draw your attention to some extremely relevant points outlined below in response to your letter

 

I have taken time to read the Wilson and FCT judgments starting with the Judgment of Sir Andrew Morritt V-C in Wilson v First County Trust Ltd [2001] EWCA Civ 633 COURT OF APPEAL, CIVIL DIVISION. In this case Penelope Wilson appealed with permission of Judge Hull QC from his decision, sitting in the Kingston upon Thames County Court at Epsom on 24 September 1999, refusing her application for a declaration that the credit agreement which she had entered with the defendant, First County Trust Ltd, on 22 January 1999 was void and unenforceable

 

I feel a key point at Para [26] in Sir Andrew Morritt’s judgment is this “In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;”

It is my contention that this is the case here with the agreements with your company, I also note that the House of Lords did not reject this idea and reaffirmed much of Sir Andrew Morritt’s judgment including this part of the ruling. The issues addressed to the Lords were that of Human rights and s127 (3)’s in particulars compatibility with the Human Rights Act. As a side note im sure you are aware that the Lords ruled that s127 (3) of the Consumer Credit Act was not incompatible with the convention rights

In addition, It is clear that parliament considered the fact that where a creditor failed to comply with the requirements of s60 and 61of the Consumer Credit Act 1974 they would stand to lose any monies loaned and that penalty was correct. The Consumer Credit Act is a protective Act implemented to give consumers a level of protection and set out minimum requirements for contracts between creditors and debtors, it does not say that where a credit fails to comply with the law and the debt becomes unenforceable they can cause damage to the debtor by defacing their credit file, no court has also held this to be the case either and I am sure parliament would have stated in the act if it was to be the case that the creditor had any such rights when in non compliance

I have also spoken with someone who has liased with Francis Bennion the drafts man of the Consumer Credit Act 1974 and a very well respected Barrister who specializes in Consumer Law, Mr Bennion has kindly confirmed that the (if any) clause within section 78(1) means “Only if there was no written agreement in the first place is the creditor excused from supplying a copy” in all other situations a true copy must be supplied. So either both Next and I signed an agreement or it wasn’t, if it was then you have a duty to provide, it if it wasn’t then you may be excused from such obligations there is no in-between

Therefore, if you are confirming that you did not ensure that the relevant paperwork was signed correctly and contained the prescribed terms pursuant to Consumer Credit Agreements regulations 1983 / 1553 schedule 6 column 2, before lending monies based upon it, this is a clear case of grossly irresponsible lending is it not? Also is this not placing you company in contravention of inter alia Money-laundering Regulations by not ensuring relevant paperwork is present and correct? Key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007. I also note according to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b). I further suggest that a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

 

 

This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

So I wish to clarify the situation if I may, your comment “Next does not hold a agreement signed by you” from that statement it appears you are recognising that no agreement was signed ever by me? Otherwise the only explanation is that you’ve lost my credit agreement, if your company has lost my personal data I require a full written explanation as to how this has happened, but I guess that will not be the case as I am sure that you will recognise that a signed credit agreement never existed between us

I would also like to refer to a written comment from Francis Bennion’s own website which I feel is extremely relevant

“As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County TrustLtd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section

127(3)) entirely on my own initiative. It seemed right to me that if the creditor company

Couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.”

 

167 Justice of the Peace (2003) 773.

 

This quote can be seen at http://www.francisbennion.com/pdfs/fb/2003/2003-061-consumer-credit-1974-s127-3.pdf

 

I would like to further point out that you MAY NOT sell this debt onto another company and any such attempt to do so may be met by litigation as in selling on the account you will be in contravention of the Data Protection Act 1998. Further more, since the “debt” is made up of monies gifted to me by your company as laid out in the statement from the Vice Chancellor Sir Andrew Morritt, I object to any data suggesting that I am indebted to you being registered on my credit file by your company and therefore require you to remove all adverse data from my file with immediate effect

 

I turn to your comment in paragraph 4, which states you are responsible lenders, im afraid I have to disagree, if you were responsible lenders I would not be writing this letter, as you would have produced my credit agreement, but clearly you haven’t. This is an example of irresponsible lending at its finest as you are surely aware of the law relating to credit agreements, heck its been around long enough, and yet you did not require me to sign a credit agreement before you supplied the goods

 

Remember I am a consumer and it is for you to make sure that the checks are done; it is not for me to chase you as a company to make sure you comply with the legislation and get me to sign a credit agreement!!!

 

I also would like to point out that there is no such thing as “the spirit of the law” such as statement is absolutely absurd and has no basis in law, however if you claim there is such a thing as the spirit of the law them please provide the legal authority where this is cited

Notwithstanding the fact that you don’t hold a credit agreement for this debt and the fact that there is no evidence to support any conclusions that I am lawfully indebted to your company, I am prepared for a limited time to make an offer of payment on a strictly without prejudice basis and without any admission of liability.

 

I am prepared to offer a full and final settlement of £ xxx on the understanding that any adverse data will be removed from my credit file with all credit reference agencies and that I will be fully discharged from this alleged debt. Further more I require clarification that the debt will not be sold on to a third party and that the matter will be closed

 

If you accept my terms them please confirm this in writing within 14 days, should you reject these terms you will leave me no other option than to consider the legal position of your company adding adverse data to my credit file among other things

 

 

 

Regards

 

 

Heres a letter i have on file that i used to negotiate a F&F a while ago, it may be of use to you, i have added a couple of bits to tailor it to your circumstances

[kittycatty]

All I can say to that is WOWWWWW.

 

Do you think the lovely people at Next will understand it all?

 

Thanks PT, sheer genius.

 

p.s Thanks GM I always leave words out

[The GodMother]

Paul is there a un edited version of your letter that i can nick for studio cards please.

 

I cant understand were the legal speak ends and the non legal speak starts.

[kittycatty]

Update

 

Next have finally written back, again they sent the letter to my OLD address which they have been told about before.

 

Here's the reply, not sure what to do next really?

 

 

[kittycatty]

hello

[pt2537]

Hello KC

 

bear with me, im trying to catch up with everything

 

leave it with me and i will see what i can do

[kittycatty]

Thanks Paul.

 

Just annoying that they cant be bothered to read the first paragraph I put about the incorrect address.

 

Cheers

[pt2537]

no i dont view it as annoying, its brilliant as they are breaching the DPA 1998

[kittycatty]

Ah wasn't thinking like it that way.

[alfwithhair]

Just subbin to this one.

[kittycatty]

Hi

Just managed to get back on line. Bloomin puters

 

Any updates?

 

Cheers

[kittycatty]

Morning Guys

[The GodMother]

morning KC anything we can help u with?

[kittycatty]

Hi GM

 

Paul was going to write a reply to the letter posted, so just checking if there was any updates really.

 

Thanks

[The GodMother]

kk well part of the letter is missing so u will need to re post it i will see what i can do.

[kittycatty]

Sorry page 2 attached

 

Thanks