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    • Hello,

      On 15/1/24 booked appointment with Big Motoring World (BMW) to view a mini on 17/1/24 at 8pm at their Enfield dealership.  

      Car was dirty and test drive was two circuits of roundabout on entry to the showroom.  Was p/x my car and rushed by sales exec and a manager into buying the mini and a 3yr warranty that night, sale all wrapped up by 10pm.  They strongly advised me taking warranty out on car that age (2017) and confirmed it was honoured at over 500 UK registered garages.

      The next day, 18/1/24 noticed amber engine warning light on dashboard , immediately phoned BMW aftercare team to ask for it to be investigated asap at nearest garage to me. After 15 mins on hold was told only their 5 service centres across the UK can deal with car issues with earliest date for inspection in March ! Said I’m not happy with that given what sales team advised or driving car. Told an amber warning light only advisory so to drive with caution and call back when light goes red.

      I’m not happy to do this, drive the car or with the after care experience (a sign of further stresses to come) so want a refund and to return the car asap.

      Please can you advise what I need to do today to get this done. 
       

      Many thanks 
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    • Housing Association property flooding. https://www.consumeractiongroup.co.uk/topic/438641-housing-association-property-flooding/&do=findComment&comment=5124299
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    • We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

      Frankly I don't think that is any accident.

      One of the points that the judge made was that the customers contract with the broker specifically refers to the courier – and it is clear that the courier knows that they are acting for a third party. There is no need to name the third party. They just have to be recognisably part of a class of person – such as a sender or a recipient of the parcel.

      Please note that a recent case against UPS failed on exactly the same issue with the judge held that the Contracts (Rights of Third Parties) Act 1999 did not apply.

      We will be getting that transcript very soon. We will look at it and we will understand how the judge made such catastrophic mistakes. It was a very poor judgement.
      We will be recommending that people do include this adverse judgement in their bundle so that when they go to county court the judge will see both sides and see the arguments against this adverse judgement.
      Also, we will be to demonstrate to the judge that we are fair-minded and that we don't mind bringing everything to the attention of the judge even if it is against our own interests.
      This is good ethical practice.

      It would be very nice if the parcel delivery companies – including EVRi – practised this kind of thing as well.

       

      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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HSM v M&S Credit Card


Still_surviving
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Sent off my CCA request on 29.09.09 only to be met by the 'your letter is not signed' response. Whilst Im not fussed about dealing with that, I thought it interesting to point out the inaccuracies in the M&S responses (see scans) :

 

1. Im not requesting a Statement of Account

 

2. On the blank response form (which Im not going to use), they again refer to a statement request, then at the bottom, try to get me to sign that im requesting a copy of an application form.

 

I dont know if these are just badly worded responses, or something more devious to avoid producing a true copy of my CCA.

 

Anyway, thought id make this available for discussion, and will keep thread updated with progress.

 

http://i816.photobucket.com/albums/zz90/Still_surviving/Marks/Marks061009.jpg

http://i816.photobucket.com/albums/zz90/Still_surviving/Marks/Marks2061009.jpg

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Hi, I am having big problems with them and believe me they are the most devious lot I have ever dealt with. They will never give you a straight answer and they are always in the right. Just my opinion for what its worth.

 

They will tell you that an application form and a credit agreement are one and the same. That is if they don`t send you a reconstruction or some one elses application form. Hope you have more luck than me with them.

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If I read you right, what you have requested is a "true copy" of your CCA 1974 agreement with M&S Money under s78 of the CCA1974, which reads "78.—(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of 15 (its an old copy of the Act that I am using here - £1 now) new pence, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor"

However, no less interesting is clause 6 of section 78 of CCA1974. This says

"(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence. "

I believe the last part of the Act has been repealed, but not (a). Thus if I were you I would write back and tell them that you are not making an application under the Data Protection Act but under the CCA. I would then quote clause (6) (1) (a) and tell them that if they dont get their arse in gear they can forget about enforcement.

And no, dont sign it. You dont have to and they cant make you.

On the other hand, you might want to think about making a requrest under the Data Protection Act - Subject Access Request, or SAR for short.This costs £10, but they would have to produce the original application form. Under CCA all they have to come up with is a "true copy" - they could say "it looks like this". One bank tried that with me - when CCAd they more or less said "here's the t&cs", but what SARd, they had no room to manouvre and had to own up that not only was there no agreement, they couldnt even find the application form. :-o:rolleyes:

Oh and jonoh is quite right - they will tell you that an application form is a credit agreement - they all do. However, depending on how old your account is, it might be interesting to see if they can come up with anything, and if they can, whether it will hold up to scrutiny.

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Yes Serious gives good advice.

 

In my own case I SAR them they sent me an application form with some else's details on, this was a copy of the same application form they sent me for a cca request.

 

When I questioned this they then sent the same document but this time it was illegible.

 

When I sent it back and said it did not conform because it was illegible.

 

They then sent what they call a reconstructed application form again with no signature and no prescribed terms.

 

They then stated the account is no longer in dispute because we have now complied with 77 / 78 by sending you the reconstructed document which we believe is an enforceable credit agreement. No mention that it was a reconstructed application form. They stated now that they have complied they will pass it back to their threat monkeys a DCA to hassle for cash.

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Ok, in that case your problem is that by sending the reconstruction they have arguably complied with s78, but that wasnt what you asked for - that was a SAR, and thus they have not complied with the Data Protections Act. I think you should write back to them to clarify this - ie that your application was a Subject Access Request Data Protection Act request. It probably wont make a blind bit of difference to them, but it rules out for them, if it gets to court, that somehow or other they didnt understand. Quite clearly they havent fulfiilled your SAR. So what next?

If you really want to get at them, have a look at these two threads which concern making a claim for non-compliance with a SAR -

 

  1. http://www.consumeractiongroup.co.uk/forum/legal-issues/200771-starting-court-claim-sar.html, and
  2. http://www.consumeractiongroup.co.uk/forum/lloyds-bank/49571-havinastella-lloyds-tsb-3.html

The difference between your case and these, I suppose is that M&S have sent you SOMETHING - it might be unreadable, but they can always claim that they have tried. Also, your claim would be limited to damages, which, as you will see if you work through the threads will neither signficantly change your way of life or cause them much bother. So you will need to decide if you want to do this.

However, again looking to the future,the "good" news is that if they took you to court on this they would have to rely on being able to produce the original agreement and either

 

  1. its not in good shape, or
  2. it doesnt actually exist (which would be my bet)

In any event, if it either doesnt exist or is illegible, its not going to be much use to them if they did take you to court. A court has actually got to be able to read it to see you have signed, and it complies etc.

So, I would be inclined to

 

  1. tell them that your application was Data Protection and not CCA and that they have not complied (a reconstruction isnt enough for a SAR - its everything they have with your name on it) and that you are considering legal action for their non-compliance (I mean if they can make threats why cant we? :D)
  2. sit back and listen to the threats, reply when you have to and if they take you to court see what they produce. My own experience is that they well might take you to court, but that even this is a threatogram, as if you call their bluff they will back off (see http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/199747-help-court-papers-m.html - its only three pages and it does have a happy ending!)

The danger of course is that they do have the agreement and it is compliant in which you are stuffed. But if that's the case,

 

  • you are stuffed now so you are no worse off
  • why wont they produce it now?

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  • 3 weeks later...

Hi all

 

I wrote to them on the 12.10.09, re-stating what I wanted (see encs), and their response received today actually made me smile....

 

They are so intent on sending me a standard letter, that they dont seem to have noticed that they havent sent me anything yet, and I cant see that Ive actually made any 'allegations' for them to refute. How can I?

 

 

http://i816.photobucket.com/albums/zz90/Still_surviving/Marks/261009_0001.jpg

 

 

Jeez - these people handle others money...

Edited by Still_surviving
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  • 2 weeks later...

I finally received some documents by special delivery courier, several days after their previous letter refuting all my 'allegations'.

 

Theyve sent me copies of the original application form, with T&Cs on the back. Looks to me like it was a fold-up & mailback type thing. It says 'Moisten along gummed edge to seal' along the dark pattern round the edge.

 

Aside from the fact it says Application Form, does anything look out of place? Im not really expecting anything as its signed by me and an M&S bod. Another opinion is always welcome though :)

 

http://i816.photobucket.com/albums/zz90/Still_surviving/Marks/MSCCA1_0001.jpg

http://i816.photobucket.com/albums/zz90/Still_surviving/Marks/MSCCA1_0002.jpg

http://i816.photobucket.com/albums/zz90/Still_surviving/Marks/MSCCA1_0003.jpg

Edited by Still_surviving
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what kind of card do you have with them now?

If its &more, then they still have a problem, which is the legality of just switching someone from a shop account card (only useable in M&S, usually a much lower credit limit etc) to an &more card. If it is &more, did you ever sign anything for your &more card? It might well be better - from your point of view - if you are on an &more card.

But lets say you are not - you are still on the Account and that this is the agreement for the card you are still using. There are two things

 

  1. page 1 is an application form - hard to deny given the heading. That arguably - s59 of the CCA - makes the whole thing void. That though is contentious as to the best of my knowledge it has never been argued in court. Not that it has never been argued successfully - just never argued. You might not want to be the first, but neither might they. More important is the fact that your sig only appears on that page. The idea in the 1983 regs is that the debtor reads the T&Cs and then signs (this is why a set of T&Cs that clearly have no connection to the sig page are no use for the lender). The problem with the paper they have sent you is what is page 1? Is it what you have called page 1 - ie you sign it and then look at the T&Cs. Or is what you call page 1 actually page 2? If you see what I mean.
  2. However lets not think about putting our head in the oven just yet. The key page is your third scan and its kind of hard to read (if its this bad on the copy they have sent you, you might want to think about repelling them on the grounds of illegibility). But it does look to me as if the prescribed terms are there - rate of interest (under Conditions of Use); repayments (para 2a); credit limit (para 6).

If I am right about this then that is a set back, BUT only if its still the account card you are on . If they have shifted you to &more then you would still have a case imo. If you are still on the account card, then, given that the T&Cs do seem to belong with the sig page, about your only argument would be about the T&cs not being on sig page and/or that there has been no agreement as what you signed " purports to bind a person to enter as debtor or hirer into a prospective regulated agreement". But, that is contentious (though whether they fancy arguing it is another point again). There is also the danger that the court may attempt to place the parties back as if there had never been an agreement (ie they would set against any payments you had made, any purchases you had made, and if the latter exceeded the former would expect you to make up the difference - of course if the former exceeded the latter .....)

Sorry I cant be more positive. If you are on &more then get back to us, as there is an argument that can be put forward on this.

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Good - if you're like me, they will just have sent you an &more card with an invitation to get on with using it.

There is quite a lot to say, but rather than repeat it, I would suggest that you have a look at my thread with M&S which focused, among other things on precisely that issue. Basically they tried this with me - issued court papers, said they would rely on the Chargecard agreement (which they never did produce actually) to support the &more card. My defence was, in part, "oh no you cant".

See http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/199747-help-court-papers-m.html

Let us know what you think ;)

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Hi...your thread makes interesting reading :)

 

Im happy to give M&S a run for their money, but wont go down this route if people think its ultimately based on dodgy thinking on my part....

 

Having read your thread, I would ask the following:

 

(1) Would your line of attack carry as much clout under english law? and

(2) If the &More mastercard had been activated to use it, would that be a tacit admission that I knew what was going on at the time?

 

I must admit, this wasnt a card I had plans on attacking, but youve certainly given me cause for thought.

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Hi Still_surviving

Following your thread with interest as im still holding back on putting my account into dispute and stopping payments to them.

Do you mind me asking if you are still using your account, or if its with a DCA?

Emmtay

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Hi emmtay

 

No the account is still in use, albeit a bit too close to the limit for my liking :)

 

Im going to fire off a letter to them now, thanking them for their arrogance in their previous letter and requesting the CCA for my &More card.

 

I want it in writing that they consider the old application form 'transferrable' to an &More card. Then i will consider my options, hopefully with assistance from the kind souls on here.

 

Ive just made this months payment, but depending on what transpires in the next 30 days, they may not be so lucky next time.

 

All the best...

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Hi, yes I know exactly how you feel!

I've sent 3 requests and each time they have only sent the application form for the chargecard and not the credit card.

I spelt it out to them each time to NOT SEND ME ANOTHER APPLICATION FORM, but they just kept sending the same!

I really am nervous of taking the next step though, my payment goes out next monday for this month, so I need to make a decision before next months payment.

:confused:

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  • 4 weeks later...

I received the following in response to my request for an agreement on the &More account

 

http://i816.photobucket.com/albums/zz90/Still_surviving/Marks/Marks231109.jpg

 

Would be interested to get opinions on the ramifications of paragraphs 2 and 3...this matter is becoming of more interest than i originally thought it would :)

 

Regards

Edited by Still_surviving
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The argument in their letter that you were given the opportunity not to take up the offer sounds to me like M&S twisting in the wind. A lender simply cannot transfer a customer to a new card which is quite different (eg it can be used other than in M&S, and its likely to have had a radically ramped up interest rate) from the Chargecard. Also, contemplate for a moment what they have said in this letter. In effect its "here's this card, if you use it we will THEN tell you what the deal is (ie send you the T&Cs)".

They are in deep do-do and they know it. For instance there is an argument that by just sending you the &more card - and they pretty much admit to this in the letter - they are arguably in breach of S51 of the 1974 Act, where it deals with Prohibition of unsolicited credit-tokens.

It was reported in the Telegraph back in 2003 that the OFT gave them the red card for just sending out &more cards and that they changed their procedure to require customers to at least phone to activate (see OFT shows M&S the yellow card - Telegraph) - OFT made clear to them at the time that the procedure of just sending the cards out without request was not acceptable. Apparently in the credit card industry, as a friend who was working there at the time put it fairly colourfully, "everyone was ****ing gobsmacked when M&S did this".

But, in any event, if we accept that the chargecard and the &more card are quite different "products", there should be a signed, compliant agreement to support each card, not that the agreement for the former will back the latter. They have admitted in the letter to you that this is what they are doing.

Its also interesting that they refer to your Chargecard application as an application. I just wonder why not as an agreement? They have often referred to it in this way and will have to if they propose court action (for one thing, it can be argued that an application form purporting to be an agreement is void - S59).

The more I look at the letter they have sent you, the more I am astounded. They are admitting they dont have any signed document for the &more card, and that they simply transferred you to &more from Chargecard - for instance when you signed the chargecard agreement you explicitly agreed to those T&Cs. So how legitimate is it for them to say that "you agreed to the first set, so we are transferring you now on to a second, different set without any explicit agreement from you".

I am not sure what he means by "a single document in more than one piece" - though I have to say it sounds like a substantial contradiction to me, and they could be in serious bother with that too. Hard to say for sure, though, without further details.

But if that letter defines their position, I think my next question might be "when are you reducing the balance on this account to zero?:D"

However, I am so astonished by that letter, that it might be best if others had a look and confirmed these views.

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Looks like they are starting to take a different avenue regarding their reading of the situation, as you say they are gubbed!!

The FOS told them to go to Court with my Storecard agreement, this they refused to do and have passed it on to Collect Direct and now Scotcall, the letters change by the week.

Scotcall have been silent after I sent bogoff letter, the dispute just keeps going round and round, can see it being returned to M&S, as they do not have a leg to stand on.

Don\'t let the B**tards grind you down

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Interesting that they refused to take you to court AJS when in my case the only thing that exceeded the speed of taking me to court was the speed of withdrawal.

They have refused to take the case to court - hardly a demonstration of a high degree of confidence - but have passed it on to two DCAs. This makes me think that the RBS case (McGittrick - sorry not sure about the name) about whether they could continue to try to collect if they have an agreement they know is non-compliant is even more important than it ever was. On the other hand, I suppose they could continue collection - but without going to court - on the basis of the old tat they send out in response to s77 requests?

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Hi SS,

 

Looking in as asked.

 

I really don't have a definative answer about whether any old "agreement" can be taken as being the relevant agreement governing a new account, particularly where that new account differs significantly form the old one.

 

Am I right in thinking this was an old M&S charge card (accepted only in M&S stores) which was replaced by a credit card (was it called "&More") which could be used anywhere.

 

I'll flag this up to see if we can get other opinion. :)

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hey slick

 

Yes thats exactly it....what M&S have said seems pretty definitive, so wondering what yourself and the other site team might think.

 

Another poster here SFU seems to have had success attacking their position, so wonder if you would care to have a think :)

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The whole story - including the defence that i submitted - can be found here http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/199747-help-court-papers-m.html. One of the heads of defence was that they couldnt just transfer someone from one type of card (store chargecard) to another type of card (Mastercard) with quite different T&Cs without at least a signature agreeing to this. Two things to add to this

 

  1. they said they would rely on the original Chargecard agreement which by that time was 25 years old. Could they just not find this (and thus have nothing at all with a signature)? Dont know - as explained on the thread they withdrew before getting to court
  2. I had quite a few opinions from others on CAG (eg Welshmam) that M&S had got a kicking off the OFT whenin 2003 they started to transfer people from Chargecard to Mastercard in the way they did, without a signature. These can be viewed on the thread. I also got some industry opinions about this, one of which was that others in the credit card industry were "gobsmacked" when M&S managed the transfer in the way that they did.

I suppose from the point of view of certainty its a pity that the case never got to court and the argument tested out (though it was a good thing from the point of view of my nerves :grin:) but having put the papers into court, at the first sight of my defence they ran away again. Given that it had a number of heads, we cant say with certainty which one did it (or which ones), so the uncertainty - typically - continues.

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Steve4064 on Site Team says pretty much what SFU said above.

 

Issuing an unsolicited credit card is probably a contravention of the CCA in itself.

 

I guess that the new card would not have any credit agreement governing it.

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  • 1 month later...

Well January is always my busiest month of the year, so had zero time to spend on my credit related matters - however its nice and quiet now, so I think its time to get cracking :)

 

I have to say, my investment in a Truecall device has been repaid with oodles of peace and quiet....dear M&S collections have rung me 91 times in the last month, despite me having placed the account into dispute and requesting their confirmation that they do not hold a CCA for my current card.

 

Its a question of what to do next.

 

They are applying interest, but ignoring my letters now. I guess Im gonna get to a stage where I either ignore them totally, or tell them to put up or shut up.

 

My only concern is that if they take this to court, the balance will be over £5k and thus wont go through the small claims system....

 

Any one with a viewpoint on whats best now?

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Hi SS,

 

You must decide what you want to achieve with this a/c.

 

Pay it off at a rate you can afford without charges and interest being added.

 

Let them take it to court, if they dare, and hope the debt is declared unenforceable due to lack of agreement and unsolicited credit card. They may still continue to chase for the debt though.

 

Wait for M&S to sell the debt and then offer the buyer a far lower F&F settlement figure.

 

Are there any penalty charges on this a/c as this would reduce the balance. Although I doubt they'll take it to court, given the scenario.

We could do with some help from you

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  • 1 month later...

Well they continue to ignore me and today I received the enclosed final demand requesting payment in full.

 

http://i816.photobucket.com/albums/zz90/Still_surviving/Marks/Marks150310.jpg

 

Getting tired of sending them the same letters about non production of the correct CCA, so sending this which will

hopefully get them to show their hand a bit more.

 

http://i816.photobucket.com/albums/zz90/Still_surviving/Marks/Letter180310.jpg

Edited by Still_surviving
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