Next Directory, help required please.

[VikkiB]

Hi, I was hoping to get some advice on a problem with Next Directory. At the end of last year my partner was made redundant / company he was working for went bankrupt, because of this we ended up in arrears with Next. He got another job, starting in February so I contacted them to arrange a payment plan. We owe them approx £1800. The lady on the phone asked me all income and expenditure questiond, which I answered off the top of my head, not knowing exact details, we didn't even know as this point how much he would be earning. I stupidly agreed to pay them £116 a month back, I managed to make the 1st 2 payments then I realised I had totally over commited us and rang them to request a reduction. They wouldn't accept this, I told them I would pay what we could afford, £50 a month, which after everything else is paid is honestly all we can afford. This was last week. Since then we have had a letter saying we have to pay them £546 immediately or they are going to refer us to a debt collection agency. They have also been ringing the house 3 times a day since leaving an automated message on our voice mail Now I'm not trying to avoid paying this at all but we cannot pay more than £50 a month to them at the moment. What should I do? I'm not sure of our rights to be honest and they are scaring me talking about debt collection agencies, people calling to the house etc. When it comes down to it, we haven't got the cash, end of, I was making myself sick worrying about paying them and had to borrow money off my parents to make the first 2 payments that I made. We are offering to make regular payments. Any advise would be appreciated, I don't want to call them back until I know my rights. (Sorry for the waffle, didn't realise I'd written so much!)

Thanks for your help.

[VikkiB]

Just bumping this back to the top in the hope someone see's it and can give me some advice....thanks.

[Guest strangewayofsavin]

If you can only afford £50, then you cannot give them anymore, 1st do not discuss any issues with them over the phone, tell them you want all communication in future to be in writting, then say good bye and hang up, if they continue to phone, you can make an harassement complaint to the OFT.

2nd go to your local Citizens Advice, and they will help you with a budget and repayment plan for free, they will also help by phoning next and dealing with them on your behalf.

[surprise]

VikkiB - I would send them a CCA letter - letter N in the General Debt letter templates. You need to send a £1.00 p/o or cheque and send recorded delivery. They have 12 + 2 days to send the agreement, if they don't they go into default, and a further 30 days they commit a criminal offence. This may be worth trying, as I read other threads were Next do not have properly executed agreements. You can then decide what you want to do, as no agreement - no debt. However, you may feel you wish to negotiate a more affordable repayment that suits you and not them.

 

good luck

[rory32]

as no agreement - no debt.

No agreement = an unenforceable debt. Not quite the same thing as no debt. Even without an agreement the debt still exists, allbeit disputed.

 

Please note the 12 + 2 days are working days (default).

The 30 days after this are calender days (summary criminal offence).

[smartmartian10]

Definitely CCA them. You might like to read over my thread regarding Next

http://www.consumeractiongroup.co.uk/forum/store-cards/69695-next-directory-covered-cca.html

[Mike220359]

My wifes just had the letter back from Next stating (as we already knew) that they did not have a copy of the agreement, and admitting that the debt was unenforceable under the CCA ( Icannot beleive that the woman who signed it was so stupid). Anyway, she added that although it was unenforecable thay had taken legal advice which stated that ' a debt is still a debt'. What the hell does that mean with regard to the CCA?

 

Anyway, suffice to say we will be taking them to court to reclaim the applied interest and 1xcharge of £5. And also pont out that Next by not giving us a copy of the agreement have committed an offence. I think that the debt will be written off before we even get to court.

 

Mike

[rory32]

With regards to claiming back charges on an account that is unenforceable, you have to be careful. If the debt is written off do not pursue reclaiming charges. This would be seen as enrichment as you are claiming under common law.

[tomterm8]

With regards to claiming back charges on an account that is unenforceable, you have to be careful. If the debt is written off do not pursue reclaiming charges. This would be seen as enrichment as you are claiming under common law.

 

I agree. IMHO you don't have any likelyhood of recovering this money... unless they claim against you. Basically, the best thing is to stay quite and keep logs of any letters they send you or phone calls you've recieved. Don't talk to them. If they ever decide to take you to court use your evidence to fillet them...

[yaffsimone1]

VikkiB - I would send them a CCA letter - letter N in the General Debt letter templates. You need to send a £1.00 p/o or cheque and send recorded delivery. They have 12 + 2 days to send the agreement, if they don't they go into default, and a further 30 days they commit a criminal offence. This may be worth trying, as I read other threads were Next do not have properly executed agreements. You can then decide what you want to do, as no agreement - no debt. However, you may feel you wish to negotiate a more affordable repayment that suits you and not them.

 

good luck

 

 

Yes CCA them but make sure you get your sections correct in the template im sure it states (s77-79) you cannot claim against all three. S78 relates to rolling account credit, S77 is for fixed credit and S79 relates to hire purchase agreements

[alp]

What about all monthly monies paid to next why cant these be claimed back as surely no agreement = no entitlement to the money??I understand that interest cannot be claimed as if we all claim back the interest applied then in a way we are admitting running the account but if we claim back actual monies paid this is basically our money that needn, be paid in the 1st place due to no agreement!! I hope this makes sence!! I have just been through this with next and have been told that my directory a/c is unenforcable and i have had the same response from emma re no more info!!! Next have made serious errors in the past by just handing these directorys and cards to anyone and if you look at their annual accounts (type "next results" in your search engine will pull up a copy where they state that they took on a lot of customers they shouldnt have and they are being more selective as bad debt has risen and they expect the number of book holders to slow due to this!!!!!!

[tomterm8]

What about all monthly monies paid to next why cant these be claimed back as surely no agreement = no entitlement to the money??I understand that interest cannot be claimed as if we all claim back the interest applied then in a way we are admitting running the account but if we claim back actual monies paid this is basically our money that needn, be paid in the 1st place due to no agreement!! I hope this makes sence!!

 

You still owe the money, even if no agreement can be found or a formal agreement was ever made. The effect of CCA 1974 on failure to supply a credit agreement is to make the loan unenforceable during the default not to make the creditor unentitled to money already paid under the agreement.

 

I believe most courts would consider the fact that you accepted goods as an indication that both parties believed that they were acting in good faith on the basis of a loan agreement, and they would find against you in this case.

[yaffsimone1]

What about all monthly monies paid to next why cant these be claimed back as surely no agreement = no entitlement to the money??I understand that interest cannot be claimed as if we all claim back the interest applied then in a way we are admitting running the account but if we claim back actual monies paid this is basically our money that needn, be paid in the 1st place due to no agreement!! I hope this makes sence!! I have just been through this with next and have been told that my directory a/c is unenforcable and i have had the same response from emma re no more info!!! Next have made serious errors in the past by just handing these directorys and cards to anyone and if you look at their annual accounts (type "next results" in your search engine will pull up a copy where they state that they took on a lot of customers they shouldnt have and they are being more selective as bad debt has risen and they expect the number of book holders to slow due to this!!!!!!

 

You have taken goods on a promise to pay. In Contract Law a contract is simply an exchange of promises, they promise to give you the goods in return for payment. If both parties get something out of it it becomes a contract. No agreeement does not mean you can claim all your money back, it simply means there were no T&C, interest etc agreed to

[alp]

Oh thanks for that!! So you may claim back interest and charges from any debt that is clarified as unenforcable by the lender?? So when next say that they can still pursue and use debt recovery why dont they seek to re-enforce the debt through court and just go with harrasment? As my belief is that next taking us to court for the money fails on one of 3 counts for enforcing debt being....(1)agreement flawed not properly executed (2)no agreement (3)or statue barred these being the reasons a judge could not reenforce the said agreement....Also my belief is that if taken to court then because of the companies breach of cca which is there to protect us as a consumer then to punish the lender for their breach and not furnishing us with an agreement to protact us all monies paid to the said company could be re-awarded along with making the account zero balance!! this is what we are led to believe from others experiences!!! what are your thoughts folks!! Just thinking aloud!!

[rory32]

OFT response to failing to provide agreement:

 

 

For your information, the general effects of sections 77-79 requires the creditor/owner

(in the case of a hire agreement) under an agreement for (fixed-sum credit, running

account credit and hire agreement) to provide the debtor/hirer with a copy of the executed

agreement and a statement of account on request.

 

If a creditor/owner fails to comply with a valid request within a period of 12 days

(not including the date of receipt of the request) he may not enforce the agreement at all.

This prevents enforcement with or without a court order. If a default lasts for a month

(for example a calendar month) it constitutes an offence. We understand your concerns in

this matter but please do remember however that once the creditor/owner complies with

the request albeit out of time, he may once again enforce the agreement.

 

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement

and the statutory content of the agreement. The name, address and signature of the debtor do

not have to be provided. Additionally, the creditor must supply the total sum paid under the

agreement by the debtor; the total sum which has become payable under the agreement but

remains unpaid; and the total sum which is to become payable under the agreement by the debtor

(the latter two must include the various amounts comprised in that total sum and the date when

each is/was due). However, the copy must be a copy. It need not be exact on immaterial points,

but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have

difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody

would know what was in the original. When the trader comes to enforce the debt in court, he needs

to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot

otherwise.

 

In the absence of a copy of the original agreement someone's liability for a debt can only lead to

further query. However in circumstances like this we would view it is as unfair practice under

section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or

provide details as appropriate when a debt is queried or disputed.

[VikkiB]

So, let me get this right, I send this letter & a £1 postal order off requesting a CCA, if they can't provide one then what happens?? The debt is unenforcable? Does that then mean that they have to accept whatever offers of payment we offer? ie. £50 a month? I'm not trying to avoid paying totally as obviously I know we do owe them! or does it just mean they can't take us to court for it?? (sorry for all the questions, I'm finding this all a bit confusing! :-| )

 

Thanks so much for your help everyone, much appreciated.

[VikkiB]

Yes CCA them but make sure you get your sections correct in the template im sure it states (s77-79) you cannot claim against all three. S78 relates to rolling account credit, S77 is for fixed credit and S79 relates to hire purchase agreements

 

So which one is relevant to me?! S77, S78 or S79?

[yaffsimone1]

So which one is relevant to me?! S77, S78 or S79?

 

 

S78 rolling account credit, they have not lent you a fixed sum of money (which would be S77)

[surprise]

VikkiB - if you could only afford a token amount of £1.00 per month they would have to take it because basically, you could say take it or leave it. Don't skin yourself out by trying to pay back too much.

[yaffsimone1]

If they cannot produce the agreement dont feel obliged to pay £50 per month, you may be able to afford it but they dont deserve it.

 

They have been unlawfully running your account by charging stupid amounts of interest that you have not agreed to because they cannot come up with the paperwork to prove otherwise. £1.00 per month is all they deserve.

 

I have got a CCJ with Next Directory, this happened before i even knew CAG existed. Because i knew i owed them money i admitted the debt got a judgement etc, paying £20.00 per month. Then i found CAG.

 

Out of interest i CCA'd NEXT and their Solicitors Howard Cohen & Co. To my surprise they dont have a credit agreement. Because i didnt CCA them neither me or the judge would have been none the wiser to the fact they didnt have an agreement! But they enforced it anyway.

 

Now i could of appealed this but you have to appeal within 14 days and it was about a month or so after the judgement that i found this out, so im a bit buggered.

 

On that occasion a creditor tried his luck and won.

[VikkiB]

Thanks for all your help, it's all a bit clearer now. I'm going to post off my £1 postal order and CCA request this afternoon, will keep you all informed of my progress.

[VikkiB]

I've received a letter from Next today, stating that they do not hold a signed credit agreement for our Next Directory account on their files. They then state that 'Under section 127 (3) of the Consumer Credit Act 1974, any debt on the account is therefore unenforcable in a court of law'/ They then go on to say 'however, on receipt of legal advice, I must also advise you that this does not mean that Next is unable to pursue payment, or seek repayment for the debt by other methods. As you may be aware, financial institutions often employ debt collection agencies to seek repayment on their behalf, and I can confirm that Next uses such third parties for this purpose. Furthermore, an unsatisfied debt would be recorded on a customer's file with the credit reference agencies, thereby affecting their ability to gain credit elsewhere.'

 

So? What do I do now? What exactly does that mean for us? I take it it is a good thing for us they have no signed agreement??

 

Thanks in advance for your help.

[rory32]

They then go on to say 'however, on receipt of legal advice, I must also advise you that this does not mean that Next is unable to pursue payment, or seek repayment for the debt by other methods.

Then their legal advice wasn't very good. They seem to have forgotten about The Administration of Justice Act 1970 section 40 Debt Help UK : Administration of Justice Act 1970 | UK debt consolidation service with free help and advice | UK debt consolidation service with free help and advice

 

They also don't seem to be aware of OFT guideance on debt collection.

 

Furthermore, an unsatisfied debt would be recorded on a customer's file with the credit reference agencies, thereby affecting their ability to gain credit elsewhere.

They also seem to have conviently forgotten about that little thing called The Data Protection Act. They don't have a credit agreement therefore they have no document which gives your permission to process your data.

 

Finally they seem to have forgotten about The Consumer Credit Act and The Money Laundering Regulation 2003. Neither of which they have complied with.

[alp]

Well at least Next have the balls to write and tell you. I have been through the same with next £2600 bill but now i still have robinson way writing and at one point texting and calling through out the day!!! I too will be watching closely at what to do next as we appear to be in the same boat!!!

[VikkiB]

I have tried to arrange a payment plan with Next, they wouldn't accept the amount we can afford, I am wanting to pay them something, not trying to get out of paying them at all, I'm really unsure what our next step is now?