Thread: M&S Default Following CCA Request - Account Termination

Although I am in arrears with my account, M&S Money have done very little to date. However, I sent off a CCA request and 11 days after receipt they have defaulted my account...see below.

The CCA is due back next week and I would be extremely surpised if they have it as it started life as a store card and then they subsequently upgraded it to a credit card in 2003.

So, I have 3 questions...

The default arrived 3 days after the date stipulated on the notice and yet it only allows me 14 days...isn't this wrong in itself??

Is it ethical to default the account when I am waiting for my CCA?

They state that the account is to be terminated within 14 days. What are the implications of this and should I SAR them now or can I still do that at a later date?

All advice gratefully received...thanks!!

Originally Posted by summerbreeze

I am pretty sure that this DN is not formatted correctly but I am still a beginner here and learning every day so await more comments from more experienced caggers

Thanks SB...much appreciated

I always thought that they had to allow 14 clear days for the default to be remedied but can only find reference to 7 days in s88 of CCA 74...does anyone know where I can find this info??

Originally Posted by WelshMam2009

Thanks SB...much appreciated

I always thought that they had to allow 14 clear days for the default to be remedied but can only find reference to 7 days in s88 of CCA 74...does anyone know where I can find this info??

Ok...think I found it as an amendment in 2006 CCA Act....take it this still applies to my account which was taken out circa 1996??

14 Default notices
(1) In subsections (2) and (3) of section 88 of the 1974 Act (contents and effect of default notice)for “seven” wherever occurring substitute “14”.
(2) In subsection (4) of that section after “it” insert “and any other

So the 74 act states...

[88.—(1) The default notice must be in the prescribed form
and specify—
(a) the nature of the alleged breach;
(b) if the breach is capable of remedy, what action is required to remedy it
and the date before which that action is to be taken;
(c) if the breach is not capable of remedy, the sum (if any) required to be
paid as compensation for the breach, and the date before which it is to be paid.

(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection ( 1)) before those seven days have elapsed.

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes Operative only on breach of some other provision, but i£ the breach of that other provision is not duly remedied or compensation demanded under subsection (I) is not duly paid, or (where no requirement is made under subsection ~1)) if the seven days mentioned in subsection (2) have elapsed, the
creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

So the date of service is the date that I received the notice (3 days later) and not the date of issue on the letter....yes?!!!!

Originally Posted by Gazza112

Hi Welshmam

Whats the issue date and the remedy date for the Default Notice they sent you. Also did you keep the enverlope it came in.

gaz

Hi Gaz...yes, I have the envelope but it's one of those ones with barcodes on (which I'm not sure mean anything) and the reference under the S in the top right hand corner showing where it was posted I believe.


No remedy date specified other than the 14 days stated on the notice above.

The only date on the letter is 30 March at the top and I received it on 2 April...which is 3 days later.

Originally Posted by summerbreeze

[88.—(1) The default notice must be in the prescribed form


I dont think it is !

Hi SB...thanks again....am searching to see where I can find details of what the prescribed form should be....will post up what I can find as there must be loads on info on this forum...

Originally Posted by summerbreeze

I believe it is to do with some of the words HAVE to be in BOLD lettering and/ or underlined

Search around the forum for other scanned DNs

Will do SB...found this which FedUp74 posted on another thread...

89. The notice fails to include the following statement in the prescribed form as shown below (note the correct use of Bold Text):

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH"

90. The Default Notice also fails to include the additional statement in the prescribed form as shown below:

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]"

Fed Up says that

The statements referred to in points 89 and 90 are laid out in Schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561).

But I can't find any refeference to bold or underlining so far....

Originally Posted by summerbreeze

take a look at this post from BRW

http://www.consumeractiongroup.co.uk...ml#post1914571

lol...did you see what BRW added at the bottom of his post SB...

The only answer I don't have for you at the moment, is why some words need to be underlined!

Guess because they are written as bold in the regs (even this looks a bit iffy to me!!) then that is how they need to be....it's the underlining bit I need to find out more about....

This is BRW's thread for my reference...any comments please feel free to add...

Schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561):

Quote:
(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement--

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.
It's the (b) above that kills them on your Notice.

THEY HAVE DONE IT LIKE THIS

WHEN THEY SHOULD'VE DONE IT LIKE THIS

IOW, the way the words should be set out is not explicit in terms of the use of Upper Case and Bold, but there are Prescribed standards that must be followed depending on the use of Bold for example.

So, it's reasonable to say that it would be wise to use UPPER CASE for the Prescribed Wording mainly because, to do otherwise, would not make it stand out. For example:

THIS STANDS OUT FROM THE BUMF ABOVE, BECAUSE I'VE USED UPPER CASE TO MAKE IT STAND OUT. SO, IF THIS WERE THE PRESCRIBED WORDS, THEN IT WORKS TO MAKE THEM STAND OUT FROM WORDS USING LOWER CASE.

I must admit that I need to find where it says how and where underline needs to be use, so I'll come back to that!

However, where underline is used with the Prescribed Wording, which is almost certainly in UPPER CASE already or else it won't stand out, then any underlined Prescribed Words should be afforded yet more prominence.

About the only way to do that is to use Bold.

THUS, IF THE PRESCRIBED WORDS ARE ALREADY IN UPPER CASE, THEN ANY THAT USE UNDERLINE SHOULD ALSO BE IN BOLD, LIKE THIS.

However, if they have already used Upper Case and Bold, then the Underlined Prescribed Words must be afforded yet more prominence.

If Bold has already been used up as an option, and assuming we can't use Flashing LED Lights, then one way could be to make them bigger:

IF THE PRESCRIBED WORDS ARE ALREADY IN UPPER CASE AND BOLD, THEN ANY THAT USE UNDERLINE SHOULD BE GIVEN EVEN GREATER EMPHASIS, PERHAPS LIKE THIS.

In my case, I reckon M&S may have attempted this by putting the words in italics such as...

BEFORE THE DATE SHOWN; NOT;

but it's hardly prominent.

Also, they keep referring to

BELOW THE DATE SHOWN

but there is no date shown....must they specify a remedy date??

Details of breach of agreement and action required to remedy, or pay compensation for, the breach
3
A specification of:--
(a) the provision of the agreement alleged to have been breached; and
(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either
(c) if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than
fourteen days] after the date of service of the notice, before which that action is to be taken; or
(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and
the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

From the same regs as above...surely they should specify a specific date and not within 14 days??

Originally Posted by summerbreeze

OMG I just got very scary mail through the door

Will need some help later

Hope you get some good info on these DNs as I am going to need all the info I can get.

Have to go take FIL to hospital appt but back later

No probs...don't let it bother you SB...post up a link when you get back!!