PT2537's CCA request against Littlewoods

[gordonsanderson]

Hi pt2537,

It`s good to hear that institutes that are willing to take our money, whom have a lawful responsibility to manage the data that they have concerning agreements that we have with them, find that if they cannot comply with a statuary request.....can get filled with stuff:),

good on you mate, good research, hope you get a deserved result, i watch with anticipation .

 

Regards

gordon

[kacisnanna]

I sent cca request to littlewoods in july heard nothing, then got letter and blnk agreement. Wrote them again saying that i wanted a signed agreement ( there is none ) Then received letter form NDR sent them cca also. Now debt been passed to phoenix recoveries. Sent them cca request and they said that they would contact their client and be back in touch. That was in November and I have heard nothing. Getting worried. What will I do now

[The GodMother]

Just sit and wait as they will not have the CCA either.

 

Just let them dig them selves a hole as it will be hard for them to climb out of it.

 

Chrissi

[Edz11]

Why are you worried? It's them that should be as they haven't got an enforceable agreement...

[pt2537]

alrighty then

 

time to update the thread.

 

well theres not much to tell but, i am in discussions with their legal department at present. i have finalised my particulars of claim and they are now finished.

 

its a waiting game now to see what their legal department have to say. if its not what i want to here then its off to court we go for a section 142 declaration

[42man]

Good luck Paul....not that you'll need it, if there were 5 or 6 people I wouldn't want to face in a court room in this type of situation you would be one of them !!!

[pt2537]

Good luck Paul....not that you'll need it, if there were 5 or 6 people I wouldn't want to face in a court room in this type of situation you would be one of them !!!

Cheers Bill:),

 

i get the feeling that they dont want to play ball with me in court either , however, i have just about had enough of these buffoons so i have told them that i require a response with a proposal to resolve this matter by no later than the 14th

 

on the 15th im off to southampton CC with 3 copies of the N1 form to instigate proceedings

 

they have the choice, i hope they make the right one;)

[hunterandthehunted]

sit and wait for 30 days until they have committed a criminal offence then there is a letter in Consumer Credit Act - resources workshop you could send.

 

 

hi,

where can this template letter be found, i think i might be wanting to use this in around 30 days time.

 

regards

hunterandthehunted

[pt2537]

Hi Hunter,

 

ive posted a few of the letters ive sent on this thread, so help your self if they are any use to you, you would need to amend them to suit

 

im not sure where surprise was refering to, but ive always wrote my own letters anyway

[hunterandthehunted]

paul,

i cannot find it anywhere, but i know it exists because i have read it somewhere on your posts... trouble is there are thousands.. LOL

 

it is a letter to use informing the creditor that the 30 days are up and they have commited a criminal offence and the account is now in dispute etc.....

 

thanks

hunterandthehunted

[pt2537]

Hi Hunter

 

oh well, its really best that we write a letter depending upon the situation so lets wait and see what happens, i have around 30 letters that ive drafted for pretty much all situations so give me a shout when needed and i will post something on your thread for you

[car2403]

Good luck Paul....not that you'll need it, if there were 5 or 6 people I wouldn't want to face in a court room in this type of situation you would be one of them !!!

 

Ooo... Who are the other 4 or 5 people then, 42man? (PM me if you don't want them to know )

[The GodMother]

Erm just a question but

 

What is a section 142 declaration?

[pt2537]

a section 142 declaration is basically requesting the court to declare the agreement unenforceable and as a result discharge me from the debt

[The GodMother]

OK thanks for that.

 

Chrissi

[lihi]

Hi Paul

 

my local trading standards made a passing comment a while back that I couldn't take a firm to court in order for the debt to be 'in effect' cancelled out but a section 142 allows you to do just that? Brilliant. Is it the N1 form you've filled out? Does section 142 refer to the CC Act? I've issued against woolwich and the forms have scared me about throwing out your claim if you haven't considered ADR, so I can understand your thinking why did you got straight for court rather than trying ADR first? Sorry for all the questions, I think your outlook is fantastic and I don't want to reinvent the wheel.

 

I think you're a bl00dy legend!

[car2403]

Hi Paul

 

my local trading standards made a passing comment a while back that I couldn't take a firm to court in order for the debt to be 'in effect' cancelled out but a section 142 allows you to do just that? Brilliant. Is it the N1 form you've filled out? Does section 142 refer to the CC Act? I've issued against woolwich and the forms have scared me about throwing out your claim if you haven't considered ADR, so I can understand your thinking why did you got straight for court rather than trying ADR first? Sorry for all the questions, I think your outlook is fantastic and I don't want to reinvent the wheel.

 

I think you're a bl00dy legend!

 

s.142 states that a party to the contract can apply to the Court for a declaration as to the rights and obligations of those parties under the agreement;

 

 

142

.—(1) Where under any provision of this Act a thing can be done by a creditor or owner on an enforcement order only, and either—

(a) the court dismisses (except on technical grounds only) an application for an enforcement order, or

(b) where no such application has been made or such an application has been dismissed on technical grounds only, an interested party applies to the court for a declaration under this subsection the court may if it thinks just make a declaration that the creditor or owner is not entitled to do that thing, and thereafter no application for an enforcement order in respect of it shall be entertained

 

ADR is exactly that - an alternative. If the Court recommends ADR, it's confidential between the parties as to whether you've used it or not and how successful it has been. It bears no relation to the Court action at all. (Save from where you come to a settlement, in which case the Court claim is discontinued as a result)

 

You'll also find that Paul has followed the informal pre-litigation processes of setting out your initial arguments in correspondance with the other side, then sending a LBA (letter before action) before starting the Court proceedings - without these, the claim could be considered for strike out as the parties haven't negotiated the claim correctly prior to Court action. Us CAG'ers don't make such mistakes...

[lihi]

Brilliant, I haven't made a mistake either (is there a CAG qualification yet? woohoo) just got scared by the leaflet threatening to send me to hell if I dared make a mistake.

 

Paul would you be prepared to post the claim particulars on the website so that I can keep a copy of for future reference?

[The GodMother]

Erm

 

what is an ADR?

[lihi]

Alternative dispute resolution, like using the ombudsman or fsa instead of going straight to court though as car says PT has corresponded with them and issued an lba.

[car2403]

Erm

 

what is an ADR?

 

Alternative Dispute Resolution.

 

This is the term to any method of resolving a dispute that is alternative to taking Court action, so covers a lot.

 

The Court also offers an ADR service and **usually** recommends that small claims are referred to ADR in Court directions to attempt settlement out of Court. This is just like a Court hearing, but there's no Judge - only an Adjudicator or Mediator that speaks to the parties then communicates with the other.

 

I haven't used it myself, not least because I've always tried to settle out of Court before even issuing the claim, but I can see why they Court is so interesting in pushing ADR.

[The GodMother]

oh rite thanks for that guys.

 

Chrissi

[pt2537]

In the ********** County Court

Claim number

 

 

 

 

 

Between

 

Pt2537 - Claimant

 

and

 

 

Littlewoods Shop Direct Home Shopping - Defendant

 

 

 

Particulars of Claim

 

 

1. I, *******(claimant) of *** ************, *********** make the following claim against the defendant Littlewoods Shop Direct group (defendant)

 

2. The claimant held a credit account (account number ********) with the defendant at all material times referred to here in

 

3. The claimant noted that there had been charges levied to the account over the time it had been running and also that the repayment amounts seemed to vary without any real explanation, so the claimant contacted the defendants company and was advised that all was contained with in the contract that the claimant entered into with the defendant

 

4. The claimant upon having cause to dispute the account held with Defendant, the claimant requested pursuant to s78 (1) Consumer Credit Act 1974 that the defendant supply a copy of the executed credit agreement for the account, along with terms and conditions and a statement of account as outlined in the CC Act 1974

 

5. The Defendant received this request on the 11th May 2007 however the defendant failed to supply the information requested under s78 (1) Consumer Credit Act 1974 within the prescribed time limits of 12 working days laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations1983 (SI 1983/1569) and failed to comply within a further 30 calendar days thus committing an offence under section 78(6) of the Consumer Credit Act 1974

 

6. On 20 July 2007 the defendant supplied the claimant a copy of a document purporting to be the binding agreement between parties. However on scrutinizing the document it became clear that the agreement supplied was not the agreement entered into between parties. It simply could not have been. Crucially the agreement did not have the address of the claimant from the time the account was opened but the address that the claimant lives at today so it cannot be the correct document. Also the claimants name was incorrectly spelt. The claimant did not sign the document either and the signature box was blank nor did it contain the prescribed terms infact what was supplied was a brand new blank credit agreement, which did not relate to the type of account held. A copy of that document is attached to these particulars

 

7. The defendant in its covering letter stated, "under sections 77 and 78 of the consumer credit act 1974 we are required to provide a copy of the executed agreement (if any). On the assumption that you signed the agreement supplied to you at the time of opening your account. We enclose a copy of our agreement, which complies with the requirements of the Consumer credit (Cancellation notices and Copies of Documents) regulations 1983"

 

8. The defendant appears to be in error, it is incorrect to assume the agreement was signed. When granting credit the defendant must follow the requirements of the Consumer Credit Act 1974. The requirements with regards to signing of agreements is laid out in section 61 Consumer Credit Act 1974.It is a requirement of a properly executed credit agreement to be signed by the debtor and creditor. In addition the agreement must contain the prescribed terms as set out in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) It is clear that the document sent is not signed and it is clearly not a true copy of the credit agreement between parties. In addition I note that the defendant has a duty under various pieces of legislation to retain such documents as credit agreements as outlined in points 9 through to 12 and therefore It stands to reason that if there was ever a signed credit agreement the defendant should be able to produce it

 

 

9. 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).

 

 

10. As a loan or credit 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.

 

 

11. 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)."

 

 

12. Finally, 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.

 

13. The Claimant wrote to the Defendant pointing out that the response failed to comply with the requirements of the Consumer Credit Act 1974 and invited the defendant again to supply the requested information to resolve this dispute. Since the Defendant had failed to comply with its obligations in supplying the information requested in the prescribed time frame of 12 working days the claimant decided to withhold payment in accordance with s78 (6) Consumer Credit Act 1974 hoping that the defendant would comply.

 

14. The defendant failed to respond to the claimants letters and also failed to place the account on hold while carrying out its investigation in accordance with the Office Of Fair Trading guidance on debt collection from 2003.instead the defendant continued demanding payments, the amounts which were subject of the dispute. Letters were received from the defendant on 22nd June 2007, 14th August, 1st September 2007, 15th September 2007 The defendant continued to pass the account to debt collection agents Nationwide Debt Recovery who wrote on 1st October and also sent a calling card through the post on the 4th November which is against OFT guidelines on Debt collection as the card did not disclose who they were or what they wished to talk to me about. Copies of the letters are attached to this claim and are marked Exhibit PAT1 - 6

 

15. In relation to the Office of Fair Trading Guidelines on Debt collection referred to in point 14.the guidelines state "2.1 it is unfair to communicate, in whatever form, with consumers in an unclear, inaccurate or misleading manner." And " 2.2 c. those contacting debtors not making clear who they are, who they work for, what their role is, what the purpose of the contact is" and in addition 2.2 h. "asking or instructing debtors to make contact on premium rate telephone numbers" this is particularly relevant in relation to the card mailer that was sent asking the claimant to call Alex Vaughn on a premium rate telephone number

 

16. The claimant outlined to the defendant on a further 2 occasions in writing that unless the defendant supplies the claimant would continue to with hold payment until the defendant supplied evidence of its entitlement to load charges and to add high interest charges to the account under the contractual agreement, namely the Credit agreement regulated by the Consumer Credit Act 1974

 

17. The defendant failed reply to the claimants request and has completely ignored all attempts of correspondence from the claimant in this matter

 

18. Instead the defendant passed the account, which was subject of a serious dispute to their Debt collection Agency NDR (Nationwide Debt Recovery), a course of action, which is contrary to the Office of Fair Trading Guidance on Debt Collection. NDR also would not be drawn into any discussions relating to the claimants dispute relating to the charges levied to

 

19. Accordingly the claimant has liaised with Hampshire County Council Trading Standards who have confirmed that the agreement sent by the defendants does not satisfy the requirements of the Consumer credit Act 1974. Trading standards are now dealing with the matter in their own right

 

20. After a long conversation with the Defendants customer services call centre on Friday 2nd November 2007 the claimant was informed that the defendant did not have a signed agreement and therefore conceded that the debt could not be enforced but will still issue a default notice and will add such data to the claimants credit file with the credit reference agencies. Despite explaining that the claimant would like to negotiate a settlement with the defendant, the defendant still considered it correct to proceed with this course of action

 

 

21. In a letter dated 30 November 2007, *********** of the complaints management for the Defendant wrote to me setting out that they cannot locate a copy of the credit agreement between parties. This is a clear contravention of the Consumer Credit Act insofar that upon request, the defendant must produce a true copy of the executed credit agreement and further more if the defendant does not hold the original or a copy of the original agreement they would not be able to produce a true copy to comply with section 78 (1) of the Consumer Credit Act 1974

 

22. Notwithstanding the fact that the defendant has failed to comply with s78 (1) CCA 1974 and therefore cannot enforce the debt by way of S78 (6) CCA 1974. Since the defendant cannot produce a copy of the agreement because as referred to in point 20 they by their own admission do not have it, it is averred that the defendant cannot enforce the agreement at all, further more the defendant is unable to provide a credit agreement complaint with section 60(1) CCA 1974 and signed by both debtor and creditor in the manner prescribed by section 61 CCA 1974.

 

23. As a result of failing to comply with sections 60 and 61 means the agreement would be improperly executed and as set out in section 65 CCA 1974 would only be enforceable by court order

 

24. The consequences of the defendant failing to comply with the Consumer Credit Act 1974 in particular sections 60 & 61 are set out in the House of Lords ruling in the case of Wilson v First County Trust Ltd [2003] UKHL 40

 

LORD NICHOLLS OF BIRKENHEAD stated..

 

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order

 

 

and from paragraph 31

 

"These restrictions on enforcement of a regulated agreement are for the protection of borrowers"

 

and

 

" A borrower may consent to the sale of a security or to judgment. Moreover, the creditor is entitled to retain any security lodged until either an application for an enforcement order is dismissed or the court makes a declaration under section 142 that the agreement is not enforceable"

 

25. Additionally, since the defendant cannot provide a true copy of the credit agreement between parties the account, as outlined in point 5,6 & 7 above the defendant is in default of its obligations under S78 (1) and therefore not entitled to enforce the agreement by way of S78 (6). Therefore it is suggested that the defendant is not entitled to add charges to the outstanding balance, add adverse data to the claimants credit file or harass the claimant for payment as it is averred that all such activity would amount to attempts of enforcement

 

26. It is averred that no credit agreement exists between the parties and as a consequence this debt is unenforceable. The claimant has tried to negotiate with the defendant to resolve this dispute but the defendant has failed to enter into any meaningful negotiations and as a result the claimant is bringing this action before the court. The claimant is reluctant in doing so but has been left with little other option given that the defendant has chosen to pursue the claimant for this debt and continuing to add charges without providing proof of contractual entitlement to do so which would be contained within the credit agreement

 

27. The claimant considers that without a valid credit agreement the defendant has not right to charge interest on the balance nor does the defendant have rights to add administration charges therefore the claimant considers the balance as stated incorrect and at this point due to the defendants continued failure to enter any form of discussions the claimant has not choice but to bring this matter to court

 

 

Accordingly the claimant claims,

 

 

28. That the court issue a declaration pursuant to section 142 (1) Consumer Credit Act 1974 that the agreement is indeed unenforceable, discharging the Claimant from all liabilities and obligations to the defendant under the account number ************

 

29. That the court make an order that the defendant to remove all adverse data added to the claimants credit file in relation to this account, pursuant to section 14 (1) Data Protection Act 1998

 

30. The claimant also requests the court give consideration to the issue of costs as set out on the schedule of costs. The claimant contends that had the defendant acted reasonably and attempted to resolve the dispute this issue would never have been brought before the court. Therefore the claimant contends that the defendants behaviour is unreasonable and has lead to the costs incurred as a result

 

 

 

 

I ***********, the claimant, believe the facts set out in this claim are true and factual to the best of my knowledge

 

Signed

 

Date

 

 

 

 

ok there my final POCs , hopefully it wont come to needing to take litigation, but i have angled them towards a judge who probably wont have dealt with much consumer credit issues so hopefully he will see the basic issues here and make judgment accordingly. hopefully they should do the trick but lets wait and see what happens

 

but dont forget that I HAVE ALREADY BEEN TO THE FOS BEFORE GOING AHEAD WITH THIS CLAIM>

 

 

regards

paul

[paulwlton]

Nice one pt.

[tomterm8]

It's a good POC...