Originally had store card with M&S and this was changed to a credit card automatically some years ago, M&S receiving some bad press because customers had not requested a Credit Card. I posted a SAR for the original documentation with regards to the CC (which they won't have) and after 14 days the silence has been deafening, they will not have a signed copy of the CC terms and conditions as one was never sent out. I am now at a point of "what do I do now?" as I cannot find further letters to continue with my harrassment of them, anyone point me in the right direction?

I understand that you send further letter after 40 days, is that from first date or after the first 10+2 days have passed?

Originally had store card with M&S and this was changed to a credit card automatically some years ago, M&S receiving some bad press because customers had not requested a Credit Card. I posted a Subject Access Request for the original documentation with regards to the CC (which they won't have) and after 14 days the silence has been deafening, they will not have a signed copy of the CC terms and conditions as one was never sent out. I am now at a point of "what do I do now?" as I cannot find further letters to continue with my harrassment of them, anyone point me in the right direction?

Hello Ajs,

Perhaps I can assist you on this one:D The first thing to do is be patient, the ammunition you require will come:D

If you have sent a subject access request under the Data Protection Act 1998, with your £10 payment to the lovely (have faith in our company:roll:) M&S, they have forty days + 2 days to comply. So they still have time to comply.

If you sent them a request with a £1 payment, under section 77/78 of the consumer credit act 1974 for a copy of your origingal credit agreement they have 12 workings days + 2 postage. So they would be in default and then you can legally dispute the account.

Did you sent them a 77/78 request??????? If you did'nt I would, to cover all bases:D

What you will find is that they will comply by sending you a copy of your store card application form:eek: which will have a different account number than the credit card account that you have now. They will insist that they sent you a mailer informing you of the changes:roll:

Can I ask for a bit of background regarding your dispute with them please

I have sent a 77/78 request with a £1 cheque which has been cashed ,so I know they have received the letter. They are now well past the 12+2 days for reply and they are phoning me for payment on the account, my reply to them is that they have not responded to my request under the consumer credit act.

This all stems from the claim for refund of PPI because I had a diagnosed medical condition and was retired from my work on ill health. They have refused to refund premiums (although MBNA did) so I have taken it one step further and asked for documentation.

Well received letter from M&S this morning, special delivery.

Photocopied signed agreement for Chargecard dated 23rd June 1989 with £500 limit on it, also photocopy of terms and conditions.

They have also supplied T&C's for M&S Credit Card, there are no signed forms with this.

Any advice?

Well received letter from M&S this morning, special delivery.

Photocopied signed agreement for Chargecard dated 23rd June 1989 with £500 limit on it, also photocopy of terms and conditions.

They have also supplied T&C's for M&S Credit Card, there are no signed forms with this.

Any advice?

Hello ajs.

I would be thanking them very much for their documents related to the store card that you opened with them in 1989, but I would still be requiring and asking for the copy of the credit agreement for the credit card:rolleyes:

You appear supprised that they have not sent you a signed true copy of the credit agreement for the M&S more credit card, did you sign one8)?????

I didn't. and I bet you. neither did the thousands of other custuomers who had the credit card sent to them. during the upgrade in 2003.didn't ether.

One quick question the store card that you opened, does it have the same account no as the new credit card account:-?

Thanks for your rapid response, cannot see any mention of an account number on the signed agreement.

I take it you have also pursued them for this information, how did you fair?

Is their a link to your case HHNF?

ajs444 are you with me on my marks and spencer money thread muffintop v mns

I for the life of me cannot work out if they have sent me a valid cca, Iv just taken another look at what they sent me, it does state credit card agreement and is signed by me in 2007 but noticed that the credit card agreement number top right is not the same as my current account number, this has confused me somewhat.. any ideas? They say I once held a store card but I swear I never recall having one and only a marks and spencer credit card. waiting for my Subject Access Request request to come back.

http://i369.photobucket.com/albums/oo137/skeggs885/marks%20and%20spencer/marksnspencersigned.jpg

http://i369.photobucket.com/albums/oo137/skeggs885/marks%20and%20spencer/marksnspencer2.jpg

Muffintop

Hello Muffintop!

Just to help you, as your M&S details are also being discussed over on your CCA Thread, below are my comments relating to your M&S alleged Agreement are repeated below:

=======================

Just to go back on a point you raised a few Posts back...

Obviously if the m n s and more credit card was in fact taken out in march 2007 then I have missed the boat as far as the cca being held under the 1974 consumer credit act... dont I.... I really need someone tosay if this agreement as above looks valid as I dont want to miss payments to marks and spencer if its valid as its just unnecessary grief.

The repeal of things like s127(3) were not retrospective, so this has no effect on Agreements made before the Consumer Credit Act 2006.

The good news for you is that I think this came into force on 6th April 2007, so any Agreements made before that date are still covered by the Consumer Credit Act 1974.

See below lifted from a Defence against one of the bankers I'm fighting:

Quote:

50. Firstly I will address the issue of which Act is relevant in this case, to avoid any confusion in case it is suggested that the claim falls under the Consumer Credit Act 2006. It is drawn to the Court’s attention that Schedule 3, Section 11 of the Consumer Credit Act 2006 prevents Section 15 repealing Section 127 (3) of the 1974 Act for Agreements made before Section 15 came into effect. Since the Agreement would have commenced prior to the inception of the Consumer Credit Act 2006, Section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

51. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act, namely SCHEDULE 3, Transitional Provision and Savings:

11 The repeal by this Act of-

(a) the words “(subject to subsections (3) and (4))” in subsection (1)

of section 127 of the 1974 Act,

(b) subsections (3) to (5) of that section, and

© the words “or 127(3)” in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed Agreements made before the commencement of section 15 of this Act.

52. Therefore, the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this Agreement. The Consumer Credit Act 1974 is the Act which regulates the Agreement.

Thus, as you appear to have signed the above M&S thing in March 2007, your alleged Agreement should still be covered by the Consumer Credit Act 1974, and s127(3) is still applicable.

The alleged Agreement appears to be a two page Document, and at first glance it appears to be Enforceable.

The main issues that may help you are that the two copies appear to be Microfiche Copies, so they may not have the Original Document.

Also, the Document Reference numbers seem to differ:

Page One = Page 1 of 2 095110

Page Two = Page 2 of 2 095111

That may help, because does this mean you have Page 1 from Document 095110, and Page 2 from Document 095111?

In Court they would need to show that the Agreement has both your Signature and the Prescribed Terms contained within the four corners of the Agreement, because your Agreement is not covered by the Consumer Credit Act 2006, but by the Consumer Credit Act 1974.

If they do not have the Original, then the same issues would apply that I have covered elsewhere in your MBNA Thread. IOW, they are faced with having to prove what they once had.

Do bear in mind that without an Original, there will always remain the possibility that they have created a compliant other page with Prescribed Terms to replace what ever was on the other side to the page with your Signature on it. Probably unlikely in 2007, but without the Original that's their problem not yours.

Without an Original Written Agreement, a fair Judge should throw this out. Whereas another Judge may overlook CPR PD 16 7.3 and accept their pleadings that the Original would've had the Prescribed Terms on the other page.

You would have to fight this on the same basis, i.e. s78(1), Subject Access Request, then maybe CPR 31.16 and/or CPR 31.14:

CPR 31.16 (before a Claim has been raised):

why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

CPR 31.14 (after a Claim has been raised):

Getting Them To Reveal Their Vitals. Using CPR 31.14 to Your Advantage

But please don't get your hopes up, by 2007 the bankers were starting to wake up and get their act together. However, they were still not doing things as they should, so it could be the case that they have Scanned and Shredded your Original, and the above two Pages are the Front and Back of two Documents not one (i.e. Document 095110 and Document 095111).

Or 095110 could be the 1st Page and 095111 the 2nd Page, if that is how they marked their Application Forms/Agreements. That seems odd to me, but bankers are on another planet as far as I'm aware.

At best, you may just be able to drag the issue out by trying to get to see if they have an Original, and then resume Payments if that appears to be the case. If not, then it's up to you. The Agreement is more Enforceable looking than many others, but if they do not have the Original, then victory for the banker is not assured.

Next line of attack in this case has to be the Default Notice stage and Termination Stage. If those stages have yet to happen, then, as advised, watch them like a Hawk and KEEP ALL ENVELOPES!

=======================

Cheers,

BRW

Thanks Banker, do we know if a new place has been ok'd by a Mod yet and if all M&S threads could be moved there for maximum coverage.

Thanks Banker, do we know if a new place has been ok'd by a Mod yet and if all M&S threads could be moved there for maximum coverage.

It'll take time, I regret, as this has to be agreed by the Team, and then planned for the next Site Maintenance Update.

i.e. I think the change may need to be done with the Web Site off-line, but don't quote me on that!

Cheers,

BRW

Hi Muffintop, Banker rhymes and all, a happy and hopefully prosperous new year!

I have issued default notice on M&S as they have not provided me with a copy of the CCA for my account.

All they have supplied is a store card agreement which is as much good as a chocolate fireguard.

Regards putting all M&S cases in same place, could be a good idea.

Hello Ajs444!

Happy New Year to you too, I do hope it's a good one.

Sorry for hi-jacking your Thread (I'd lost track of whose Thread it was because questions were asked by others!), but I think the comments for Muffintop may be of interest.

If you have not already seen this elsewhere on CAG, others have mentioned that M&S simply updated the Store Cards and Charge Cards into M&S Credit Cards, without bothering to get anyone to Sign anything.

Silly move perhaps!

Cheers,

BRW

Yeah BRW

I know they were widely criticised for the transfer, I think someone had a quote/Cutting from some newspaper on this forum, but can't find it.

I wondered if Hell Has No Fury had pursued them at some point due to his earlier comment on this thread.

I hate to think how many people were transfered over to a CC and if they know that there is no agreement to enforce interest/default charges on the account.

Hya AJ and other subscribing Caggers. I do hope its a Happy New Year 4u too.

Brave of you to go to next step and issue default notice.. is this a specific letter? will this force their hand and flush them out to either provide your cca or cancel the debt?

Im still waiting for my sar request so I can see what they have.

Does anyone know if you have to pay for freedom of information request when you have already paid 10.00 for dpa info in the sar?

Letter re-default can be found on this site, someone will guide you there. When their collection department phones and I explain that no valid agreement exists, they don't understand!!

Received letter this morning from Mr Officer in response to my default.

He says that they have supplied valid copy of CCA under Sections 77 or 78 of Consumer Credit Act, and this is valid. The FSA and Trading Standards were consulted and supported them in the transfer from Store Card to Credit Card, although they were widely criticised in the Press.

He says that if I do not respond in 8 weeks case will be closed or we could proceed to FOS for resolution.

Anyone got next stage letter to hit them with???

This is my concern with ts and fos I have not heard one success story where a complaint has been made to them and they have acted objectively and taken action.. I may be wrong but it seems waste of time complaining to them??

How are you getting on??

received my sar today which shows inconsistencies in the date and original agreement they sent me which is supposed to me the date I opened the account...

Yeah BRW

I know they were widely criticised for the transfer, I think someone had a quote/Cutting from some newspaper on this forum, but can't find it.

I wondered if Hell Has No Fury had pursued them at some point due to his earlier comment on this thread.

I hate to think how many people were transfered over to a CC and if they know that there is no agreement to enforce interest/default charges on the account.

Hello Ajs and Muffintop,

It is quoted as 2.6 million had store cards transferred to credit cards:rolleyes:. Somebody there though this was a really good idea at the time to increase profits:rolleyes: and hopefully It will come back and bit them big them big still.

Here is the story printed in the Mail on Sunday for your reference

Consumer advice

Marks makes sparks

Richard Dyson, Mail on Sunday

24 September 2003

THE financial arm of Marks & Spencer has become the first major company to break the Banking Code, the voluntary rulebook agreed by the banking and credit card industry.

precedented move: Laurel Powers-Freeling

M&S Money, which is poised to launch its '&more' credit card business in the next fortnight, has ignored the rule that forbids lenders from sending cards to people who have not asked for them.

Within days, M&S will post its new MasterCard to 2.6m people. In all but a handful of cases, the recipients will not have requested the cards. Instead, they will be targeted because they are on the company's database of five million store card customers.

The move, seen by rivals as unprecedented and extremely aggressive, will at a stroke transform M&S into Britain's sixth-biggest credit card company.

Up to £4bn of fresh credit will be offered to consumers who have not asked for it.

The Banking Code has been drawn up and modified over several years to promote good practice and fairness to consumers. The code clearly states: 'We will send you a card only if you ask for one or to replace a card you already have.'

M&S's card launch is being overseen by Laurel Powers-Freeling, formerly of Lloyds TSB and now chief executive of M&S Money.

She says the new &more cards are simply 'replacements' or 'upgrades' for existing store cards. But in practice, the cards are completely different - store cards can be used only in M&S shops and typically impose low spending limits.

The new cards can be used anywhere and the average spending limits are likely to be at least doubled, according to M&S.

The code is enforced by the Banking Code's Standard Board (BCSB), which is now in an embarrassing position. In private, it has expressed concern at M&S's tactic. But publicly, it is allowing M&S to wriggle off the hook because the code is not set to apply officially to M&S until next summer.

BCSB chief executive Seymour Fortescue says: 'M&S is still in the process of applying to subscribe to the code, so we don't yet have official jurisdiction over its activities. Only when it is fully covered can we force it to comply.'

M&S's move, coming as card issuers face increased scrutiny from MPs on the powerful Treasury Select Committee, has also plunged the High Street giant into political hot water. Vince Cable MP, the Liberal Democrat industry spokesman, has called for all uninvited offers of credit to be outlawed.

Of M&S's card launch, he says: 'It is unsolicited debt promotion by any other name, whatever the company says. It's very dangerous.'

And he warned: 'If and when the current economic bubble bursts, a lot of people will find themselves in difficulties. M&S will have a direct responsibility.'

An M&S spokesman said: 'We are offering existing customers an improved service. We are not sending cards to people with whom we have no relationship. Our credit limits are extremely prudent. We can say, hand on heart, that we are a responsible lender.'

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Now as regarding the credit agreements they are sending out to satisfy a section 77-78 request under the cca 1974, I have seen a few kicking about the threads and I believe they are pre-contractual application forms, which do not contain all of the prescribed terms required by the cca 1974 M&S state that they are enforceable I believe they are not:D

All cases differ, I hit a financial crisis in 2006, entered into a dmp with payplan. Paid what I could to my creditors and I found M&S to be one of the worst. They hounded me with calls, sent threatening letters even when I paid them.

Sent a SAR and found they had applied ppi to 3 loans I had with them. They had also applied penalty charges to the card account. This is when I started my dispute with them.

They refunded back the ppi. They instructed a DCA to pursue me and paid them the penalty charges:rolleyes: This is still whilst I was paying token payments.

After I received my 1994 pre-contractual application form as a ca, I asked for the credit agreement that I signed to upgrade my account to a credit card, they stated the 1994 application form was the ca.

I stopped all payments to them and put the account into legal dispute, they then instructed another dca to pursue me and they retreated rather hastily after one letter from me:D

They then sent another dca after me and again they retreated after one letter.

I have exhausted their complaints procedure with my arguements:D and they don't talk to me anymore and haven't for the last year. But when I find the time, I am going to kick start it up again, there has been a default sitting on my credit reference file for 2yrs now and I want it removed.

My advise to you would be keep at them, always take what they state with a pinch of salt, read up on other threads regarding enforceable credit agreements and hit them hard:D

Thankyou for sharing your experiences with us.

As your two years into the dispute with marks and spencer is it an option to sit out the next 4 years and then the debt will be barred by statue and you can then clear up your credit file? I know 4 years is an awful long time and I guess I would want to clear my name but if they are not hassling you after one letter just wondered if it were an option for you, the other option I guess is to take it to the next stage to court but guess that depends if its small claim or fastrack, fastrack is a bit risky dont you think in realation to the costs. thanks for the article will take a good read of it.

sorri to hi jack your thread but us m and sers have to stay together as we are a little thin on the ground on the forum right now.

The CCA I received was identical to the one cleo4patra posted on Data Protection and Default Issues under M&S post 42.

I am going to send letter under CPR 31.16 that Banker rhymes talks about in post number 9 so that they understand what I was expecting from them.

Hello Ajs,

 

Perhaps I can assist you on this one:D The first thing to do is be patient, the ammunition you require will come:D

 

If you have sent a subject access request under the Data Protection Act 1998, with your £10 payment to the lovely (have faith in our company:roll:) M&S, they have forty days + 2 days to comply. So they still have time to comply.

 

If you sent them a request with a £1 payment, under section 77/78 of the consumer credit act 1974 for a copy of your origingal credit agreement they have 12 workings days + 2 postage. So they would be in default and then you can legally dispute the account.

 

Did you sent them a 77/78 request??????? If you did'nt I would, to cover all bases:D

 

What you will find is that they will comply by sending you a copy of your store card application form:eek: which will have a different account number than the credit card account that you have now. They will insist that they sent you a mailer informing you of the changes:roll:

 

Can I ask for a bit of background regarding your dispute with them please

2 questions please .... what forum is your thread posted on think I should restart my marks and spencer thread as it doesnt get much coverage. I got a sar back from marks and spencer money, it states when i took out the account it was a smart card... dont know what that is think maybe chip and pin came in.. discrepancies in the account numbers over the years and they have an application form signed by me from march 2007 but i took the account out in 2004 from the sar, dont know what the hell is going on with them but it just doesnt feel right.... sorry to jack your thread

Hi Muffintop,

My journey through the M&S wonderland are all on this thread, the CPR 31.16 procedure came from post no 9, as shown below, I believe this is more powerful than the standard default notice, I am also escalating case to the FOS for their observations.

You would have to fight this on the same basis, i.e. s78(1), Subject Access Request, then maybe CPR 31.16 and/or CPR 31.14:

CPR 31.16 (before a Claim has been raised):

why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

CPR 31.14 (after a Claim has been raised):

Getting Them To Reveal Their Vitals. Using CPR 31.14 to Your Advantage

But please don't get your hopes up, by 2007 the bankers were starting to wake up and get their act together. However, they were still not doing things as they should, so it could be the case that they have Scanned and Shredded your Original, and the above two Pages are the Front and Back of two Documents not one (i.e. Document 095110 and Document 095111).

Or 095110 could be the 1st Page and 095111 the 2nd Page, if that is how they marked their Application Forms/Agreements. That seems odd to me, but bankers are on another planet as far as I'm aware.

At best, you may just be able to drag the issue out by trying to get to see if they have an Original, and then resume Payments if that appears to be the case. If not, then it's up to you. The Agreement is more Enforceable looking than many others, but if they do not have the Original, then victory for the banker is not assured.

Next line of attack in this case has to be the Default Notice stage and Termination Stage. If those stages have yet to happen, then, as advised, watch them like a Hawk and KEEP ALL ENVELOPES!

hey thanks for your advise... I did get my SAR from Marks and Spencer but they were sneaky and left the important stuff out so gave them the rest of the time period to comply with dpa request... marks and spencer seem the best I ahve to say out of the cards I am requesting sar and cca from (barclaycard and mbna). will have to see if they actually comply. If they dont I really want to take it further for non compliance of data protection to court but just cant find anyone who has done it to speak to on here, there is no use threatening them if you dont actually go ahead with your threat... and win. I know Im not sure about this agreement/application form, but know something isnt right very not right as it states 2007 but I now know for a fact I opened the account in 2004... from my experian and the sar info they sent, cant understand why I would have provided another signature in 2007 apart from possibly I moved house and they had wrong spelling of my first name and maybe they said I had to sign something to this effect. I have continued to pay them as they have quite a large min payment and I wanted to hit my 3 cards one at a time, once the other two are dusted either way either they have my contract or they dont I can go onto marks and spencer.