Tactics for dealing with Next Directory/out of date in light of recent judgements

[pt2537]

Im still here

 

been away since 30th Nov though on Vacation, got back on friday and am catching up

[violethill]

hi i was wondering as anyone dealt with dml regarding next directory. they constantly call me my account isn,t that old but i still av not signed an agreement and next av admitted in an email they av no agreement on file .is it only before a certain year that this would be good news. ta for any answers

[noomill060]

Im still here

 

been away since 30th Nov though on Vacation, got back on friday and am catching up

 

 

Welcome back Paul.

[sarnie2109]

PT2357 please can you advise me as to what to do I have posted a thread but hardly any replies.

http://www.consumeractiongroup.co.uk/forum/bailiffs-sheriff-officers/238975-next-directory-bailiffs-help.html

 

Today i received my date for my hearing Feb 1st, any advice on how to deal with what I should have and say would be most appreciated.

Many Thanks

[MONTY]

I received the following letter from Next and wondered if any of you more experienced Cagers and/or professionals would comment, especially where legal precedent is sited:

 

I write further to your letter of 9th December, and further to our letter of 5 January.

 

I must advise you that we are unable to meet your expectations by closing your account, no longer seeking payment for the debt you owe to the Next Directory, as regrettably we have been unable to locate the original signed credit agreement for your account.

 

We have supplied you with a True Copy of the credit agreement that was issued to you when

you opened the account in March 2004, and we are satisfied this meets with our obligation

under the Consumer Credit Act. This is illustrated by a recent case in the High Court, Carey vs.

HSBC Bank which found a creditor can satisfy its duty under Section 78 by providing a reconstituted version of the executed agreement, which may be from sources other than the

actual agreement itself.

 

This is also backed up by comments made by Nigel Cates, the Office of Fair Trading Deputy

Director for Consumer Credit. He stated that the duty of the creditor is to provide a "true

copy“ not necessarily a photocopy including a 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. “

 

Furthermore, during a recent High Court hearing, McGuffick vs. Royal Bank of Scotland, it was confirmed 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

demand payment or otherwise seek to procure payment, was not enforcement action and is

therefore acceptable. As this was a High Court the judgment is binding on County

Courts.

 

In conclusion, I must Inform you that Next will continue to seek payment for the sum or outstanding on your account.

[sarnie2109]

have you posted a pic of this CCA up here yet? they can provid a made up copy, but it must have same terms that you may have signed back then. i see it as a wash out, and there are just as many cases saying why they should show the original in court, even the man that designed the agreements, said if the lender is to lazy in his run for the profit and he fails to exercute it properly, he deserves to lose his right to that claim!

 

if your doc is remotely iffy, ie bad quality, major missing sections etc YOU can refuse to except it and ask them to try again basicaly.

 

all is not lost

hopefully somebody a bit more experienced may help you, try and start a new thread may get some more help related to your specific case.

hope this helps.

[sarnie2109]

Hi

 

This is covered by the distance marketing regs and no returned aggreement is needed it is just the icing on the cake as far as littlewoods are concerned.

The agreement was made when the goods where recieved your cancellation period was 14 days after the recipt of your terms and conditions which was also the agreement which went in the bin.

 

Peter

 

when did this come into force, i took my account out as it says on my credit file (got no paperwork from next around the time i opened it so note sure) i opened the account in nov 2005.

 

Could somebody explain if this is relivant to my thread please!!

 

i got till 1st of FEB before im in court trying to set aside a ccj.

 

Link to my thread... http://www.consumeractiongroup.co.uk/forum/bailiffs-sheriff-officers/238975-next-directory-bailiffs-help.html

 

many thanks

Edited January 23, 2010 by sarnie2109

[Peterbard]

Hi

Must admit don’t really understand this thread I thought catalogues were exempt I know Littlewoods is because they fall under section16a of the act and do not have sufficient TCC to qualify under the associated SI.

When they do offer credit they make the customer sign an agreement for the particular goods.

This type of selling is generally covered by the distance selling regulations because there is no interest charged.

The distance marketing regulations come into force in 2004/05(si2004 2095) and cover any consumer credit agreement that takes place without any face to face contact. The regulations allow the contract to be executed remotely (ie over the phone) or electronically and amend most of part v of the act they have particular relevance to copy requirements and pre-contractual information.

I did an in depth piece on these a year or so ago it is on my enforcement thread

Peter

[troubleman]

Hi Peter, im a friend of sarnie2109's could you explain that a bit more (layman) for her, im getting some of it, but could do with enlightening a bit more

 

so she took out, or rather was duped into opening the account (went to pay online with debit card and next screen, had opened her up a credit acc with £500 credit... we are ok on that bit) with next directory online, this was in nov 2005 as that is the date on her credit file report.

So are you saying the distance selling DOES cover this agreement, or not please ? and why ......just want to learn a bit more and be ready if they bring this up in court next monday.

 

 

i see your point about TCC as it was a running acc i think, in the fact she could have spent over the initaily given amount of £500 credit, im i right here please

 

also im not sure what you mean by surplus income, could you explain this please, and it relevance to this.

 

my brain is a bit fried what with writing tons of letters and getting court papers ready (for the first time ever) and then reading franticly on here, my once sponge like brain has turned sort of like concrete:p

 

 

many thanks for any help

Edited January 25, 2010 by troubleman

[cadencealex]

Hi

Must admit don’t really understand this thread I thought catalogues were exempt I know Littlewoods is because they fall under section16a of the act and do not have sufficient TCC to qualify under the associated SI.

When they do offer credit they make the customer sign an agreement for the particular goods.

This type of selling is generally covered by the distance selling regulations because there is no interest charged.

The distance marketing regulations come into force in 2004/05(si2004 2095) and cover any consumer credit agreement that takes place without any face to face contact. The regulations allow the contract to be executed remotely (ie over the phone) or electronically and amend most of part v of the act they have particular relevance to copy requirements and pre-contractual information.

I did an in depth piece on these a year or so ago it is on my enforcement thread

Peter

 

 

But any pre 2004 opened online are able to be unenforced? Next dont chase me.. they just wont remove the default and I think I am going to pay it

[Peterbard]

But any pre 2004 opened online are able to be unenforced? Next dont chase me.. they just wont remove the default and I think I am going to pay it

 

 

Hi

 

no i didnt even kmow that cattalogues that supply goods that do no incur interest had to be regulated under the act

 

peter

[pt2537]

sorry, i disagree, these catalogues are covered by the Act, they extend credit and therefore are not exempt from the provisions of the Act

 

I have recently secured numerous judgments against Next for declaratory relief where there never was a signed agreement and credit had been advanced

[troubleman]

so are you saying PT, that because we got the credit set up before receiving the goods, its a CCA covered deal.

 

could you explain 'what' they are exempt from in which act, marketing or CCA, thanks mate. you got mail:oops:

[Peterbard]

sorry, i disagree, these catalogues are covered by the Act, they extend credit and therefore are not exempt from the provisions of the Act

 

I have recently secured numerous judgments against Next for declaratory relief where there never was a signed agreement and credit had been advanced

 

HI

If you say they arre then of course they are but what category of credit do they fall into.

 

Running account ,fixed sum,

 

Peter

[troubleman]

Hi Peter, im a friend of sarnie2109's could you explain that a bit more (layman) for her, im getting some of it, but could do with enlightening a bit more

 

so she took out, or rather was duped into opening the account (went to pay online with debit card and next screen, had opened her up a credit acc with £500 credit... we are ok on that bit) with next directory online, this was in nov 2005 as that is the date on her credit file report.

So are you saying the distance selling DOES cover this agreement, or not please ? and why ......just want to learn a bit more and be ready if they bring this up in court next monday.

 

 

i see your point about TCC as it was a running acc i think, in the fact she could have spent over the initaily given amount of £500 credit, im i right here please

 

also im not sure what you mean by surplus income, could you explain this please, and it relevance to this.

 

my brain is a bit fried what with writing tons of letters and getting court papers ready (for the first time ever) and then reading franticly on here, my once sponge like brain has turned sort of like concrete:p

 

 

many thanks for any help

 

Could you shed some light on this please peter

[Peterbard]

Could you shed some light on this please peter

 

Hi

I am not an expert on catalogues but i will tell yoou what i thought ws the situation.

My understanding was that catalogues were exempt from the CCA under section16a of the act because they charge no interest like i say i could be wrong in this PT will probably correct me.

 

However what i do know is that if transactions at a distance are for goods that require credit ie you pay interest on them they are coverred by the distance marketing regulations which is part of the consumer credit act.

Items thpt do not incur interest are generally covered by the 2002 sistance sellng act which is a different thing entirely.

 

I was under the impression that cattalogue purchasses where the latter unless they were those that specifically stated that they charge interest extended tems, they are the ones that in my experiance usually have sepperate agreements which the consumer has to sign,

Peter

[Bill Shidding]

Hi Peterbard,

 

no i didnt even kmow that cattalogues that supply goods that do no incur interest had to be regulated under the act

 

It is the consumer *credit* act, not the consumer *interest* act!

 

If you say they arre then of course they are but what category of credit do they fall into.

Running account ,fixed sum

 

Restricted-use credit I would imagine, as catalogue credit is only "spendable" on that catalogues goods.

 

cca74 sec 11 -

 

(1) A restricted-use credit agreement is a regulated consumer credit agreement—

(a)

to finance a transaction between the debtor and the creditor, whether forming part of that agreement or not, or

 

(b)

to finance a transaction between the debtor and a person (the “supplier ”) other than the creditor, or

 

©

to refinance any existing indebtedness of the debtor’s, whether to the creditor or another person, and “restricted-use credit ” shall be construed accordingly.

 

(3) An agreement does not fall within subsection (1) if the credit is in fact provided in such a way as to leave the debtor free to use it as he chooses, even though certain uses would contravene that or any other agreement.

[troubleman]

could we keep this thread on track please, and chance of somebody explaining the OP points raised 2 posts above

 

thanks

[pt2537]

a quick search of the OFT Consumer Credit Licence register shows that Next are licenced to provide consumer credit

 

Application / Licence Details

 

 

 

Licence Number:0534644

Licence Status:Current

 

Current Applicant / Licensee:

 

Business NameCompany Registration Number Next Retail Limited4521150

 

Categories:

 

Consumer credit Credit brokerage Debt collecting

 

Right To Canvass Off Trade Premises:No

 

 

Trading Name(s) (Current):

 

Brand Directory Department X Lipsy Next Next Childrenswear Next Clearance Next Directory Next Financial Services Next Flowers Next Gifts Next Home Next Interiors Next Man Next Menswear Next Origionals Next Retail Next To Nothing Next Womenswear

 

Issued Date: 19-Apr-2003

Date Maintenance Payment Due: 18-Apr-2013

 

 

Legal Formation:

 

Body Corporate (incorporated inside UK)

 

Current Individuals that run the organisation:

 

NamePosition Andrew John Robert McKinlay Andrew John Varley David Wilson Keens Simon Adam Wolfson

 

Historic Individuals that run the organisation:

 

NamePosition Alistar Campbell Mitchell-InnesOFFICER Andrew John Robert McKinlayOFFICER David Charles JonesOFFICER David Wilson KeensOFFICER Julia Ann BurdusOFFICER Mr Derek Nigel Donald NethertonOFFICER Mr John BartonOFFICER Simon Adam WolfsonOFFICER William Robert BarnesOFFICER

 

Nature of Business:

 

Other

 

Current Address(es):

 

Address TypeAddress CorrespondenceDesford Road, Enderby, Leicester, Leicestershire, LE19 4AT Principal Place Of BusinessDesford Road, Enderby, Leicester, Leicestershire, LE19 4AT Registered OfficeDesford Road, Enderby, Leicester, Leicestershire, LE19 4AT

 

Historic Address(es):

 

Address TypeAddress Correspondence., Desford Road, Enderby, Leicester, Leicestershire, LE19 4AT Principal Place Of Business., Desford Road, Enderby, Leicester, Leicestershire, LE19 4AT Registered Office., Desford Road, Enderby, Leicester, Leicestershire, LE19 4AT

 

 

[pt2537]

a further search of the Next website shows they accept they are providing goods on credit terms, that interest will be charged on the goods and that you are entering into a Consumer Credit Agreement Regulated by the Consumer Credit Act

 

it would be for running account credit ( this is an admission within Nexts own defence therefore i do not need to challenge this point) and will be regulated by the 1974 act

 

additionally Nexts submissions were that the account should be treated as a credit token agreement

[pt2537]

for completeness

 

 

14. Credit-token agreements.

— (1) A credit-token is a card, check, voucher, coupon, stamp, form, booklet or other document or thing given to an individual by a person carrying on a consumer credit business, who undertakes— (a)

that on the production of it (whether or not some other action is also required) he will supply cash, goods and services (or any of them) on credit, or

 

(b)

that where, on the production of it to a third party (whether or not any other action is also required), the third party supplies cash, goods and services (or any of them), he will pay the third party for them (whether or not deducting any discount or commission), in return for payment to him by the individual.

 

 

(2) A credit-token agreement is a regulated agreement for the provision of credit in connection with the use of a credit-token.

(3) Without prejudice to the generality of section 9(1), the person who gives to an individual an undertaking falling within subsection (1)(b) shall be taken to provide him with credit drawn on whenever a third party supplies him with cash, goods or services.

[pt2537]

the distance selling regulations would not be my choice of attack

 

simply because you have a fatal irredeemable breach where no agreement was ever signed on entry into credit with this lender.

 

 

it is a straight forward submission in my opinion and one that the court will have no discretion with, but by all means over complicate things if that is what you wish to do, but i cant see why you wouldnt simply seek to raise a breach of the 1974 Act leading to unenforceability

[sarnie2109]

Thanks PT for that info, Troubleman here....... I think you have me wrong on this, i am NOT using distance regs as MY arguement, just that i read on a thread the otherday that somebody brought it up in regards to somebody elses similar case and i just wished to get my head round it, as i thought if the otherside's solicitor bring it up i would like to be able to challange them correctly on it.

i also got a letter from next today kindly telling me they have searched the archives and cannot find a signed agreement, but have enclosed a true copy, although sadly they forgot to enclose the true copy..... but thanks for the replies PT its helping me understand the other avenues of attack by the otherside. can wait to pull that ace card out in court.

 

ill email you the WS if you want to have a look, went in yesterday just didnt want to ask you as your busy

 

cheers:)

[pt2537]

Thanks PT for that info, Troubleman here....... I think you have me wrong on this, i am NOT using distance regs as MY arguement, just that i read on a thread the otherday that somebody brought it up in regards to somebody elses similar case and i just wished to get my head round it, as i thought if the otherside's solicitor bring it up i would like to be able to challange them correctly on it.

i also got a letter from next today kindly telling me they have searched the archives and cannot find a signed agreement, but have enclosed a true copy, although sadly they forgot to enclose the true copy..... but thanks for the replies PT its helping me understand the other avenues of attack by the otherside. can wait to pull that ace card out in court.

 

ill email you the WS if you want to have a look, went in yesterday just didnt want to ask you as your busy

 

cheers:)

 

they cannot raise issues without making you aware of them prior to the hearing

 

hence why i told you you must serve more evidence, ie a wit statement prior to the hearing. this works both ways of course and they cannot hi jack you eitehr

[sarnie2109]

Thank you so much PT, we are so grateful of your help.