thanks

- i have read this previously and it is very similar .

Forgive me being naiive but M & S sent me copies of what they percieve to be a new agreement (letters on this thread)

is it also the fact that we never signed a new agreement also?

I would challenge the validity of "new agreement" have you seen the quality/illegibility of what they say is their T & C's??

What I find difficult is to separate the facts from all of the other stuff like the dodgy default

but I think my main point is as you have pointed out that it would be unenforceable becasue of no new agreement - and use the other issues as a back up??

This is totally new territory for me but have managed to fight them off for 4 years so far

- haven't AoS yet but have till Monday at latest - got a lot of strength from this site.

http://www.consumeractiongroup.co.uk/forum/content.php?867-Has-your-store-card-been-automatically-upgraded-Hot-News-for-you!!!

 

 

 

 

The Judgment is also in the link above with the case number.

default notice dated 11/11/2008 - arrived on a Saturday 15/11/2008 - offering me fourteen days to remedy "from the date shown" there is no date shown just the date 11/11/2008 so short of the fourteen days and then not giving me a specific "date shown" - tried to upload scanned copy but system keeps saying it is the wrong size and I need to resize - can anyone advise on how to do this please. Checked SAR paperwork - just piles of sheets with figures on which I think is for their use all scribbled on in red pen. Only other document in SAR is copy application form again - no default, no letters, no termination notice.

So the DN had no date, so in reality, you could never really remedy the breach.

A Default Notice is a Statutory notice and the wording and format is "mandatory" - Harrison v Link applies here I think.

If you signed no agreement for the "credit card" then I think the judgment posted earlier would apply to you.

I see also in the Diana Mayhew case that there was a problem with the Default notice - although in that instance it was the ommission of the OFT fact sheet.

I think you have a strong enough case with you having a missing date and it does not appear to me that the DN is fully compliant anyway as

a) it doesnt actually state the breach

b) it appears more of an invoice for the £12.00 they say they will charge you.. I do not think you are permitted to charge for statutory notices.. but I could be wrong.

Have you submitted a defence or are you now at the Witness statement stage ?

Do you have a court date or a timeline where you need to submit any further information ?

i need to AoS by Monday 26th

- want to defend but worried as over 10k -

have sent separate CPR request and CCA request which have been signed for

- I think we will try and defend but our inexperience worries me

- however to admit at this stage I think would be foolish I understand it is ultimately our decision

and am not afraid of hard work and doing legwork but we would have to represent ourselves

I am also unsure of the format/wording for a defence though I had to submit very detailed witness statement for employment tribunal

- thanks for the support

Ah righto.. so Acknowledgment of Service.. then you have a further 14 days in which to submit a defence.

I am sure that there are plenty of people who can help you put together a defence - however you will need to represent yourself on the day - if it gets that far.

Deminimus was the word used If I remember correctly in the Harrison case,

and putting a £12 default charge on a default notice>? never seen that before, also see the attached regarding posting times etc:- may be useful.

default_rules_ico.pdf

PRACTICE DIRECTION MASTER OF THE ROLLS BICKFORD-SMITH POSTING TIMES.doc

yes and I am going to AoS with intention to defend. To be honest I am really surprised to receive the summons given everything discussed on this thread - only problem is it's an account/summons in my husbands name and will get stressed (who wouldn't) and i would have to be his McKenzie friend?? All that said he is adamant he wants to fight. A template adaptable defence would be useful at the moment or a framework for a defence thanks for the guidance

Ah righto.. so Acknowledgment of Service.. then you have a further 14 days in which to submit a defence.

 

I am sure that there are plenty of people who can help you put together a defence - however you will need to represent yourself on the day - if it gets that far.

thanks for that - I will research the £12 issue - a few people concerned about this

Deminimus was the word used If I remember correctly in the Harrison case,

 

and putting a £12 default charge on a default notice>? never seen that before, also see the attached regarding posting times etc:- may be useful.

does anyone have any comments on what was originally sent (application form and T & C's) in response to my orriginal CCA please

- it's a little further back on this thread

- no original available as it has been destroyed

- This form was filled in in the store in 1988/ 89 after a M & S staff approached us in the store so I don't think we were given T & C's on filling it in???

Hi Cleo,

If you mean the doc't linked in post #30 of this thread taking you to post #42 of your older thread, there was considerable input about this back in Dec'r 2008 and Jan 2009.

It's an Application for the original M&S Charge Card and lacks the Prescribed Terms required for compliance with the CCA 1974.

It related to the Charge Card a/c and not the Credit Card a/c which was subsequently opened without you applying for it.

The original was apparently destroyed and, even if they prepare a Reconstructed Agreement, this would fail to meet the requirements of CCA 1974 with regard to s.65 and s.127. A court does not have the power to enforce an agreement which is not properly executed. See more about this in Link #2 in my signature.

Hi Cleo,

 

If you mean the doc't linked in post #30 of this thread taking you to post #42 of your older thread, there was considerable input about this back in Dec'r 2008 and Jan 2009.

 

It's an Application for the original M&S Charge Card and lacks the Prescribed Terms required for compliance with the CCA 1974.

 

It related to the Charge Card a/c and not the Credit Card a/c which was subsequently opened without you applying for it.

 

The original was apparently destroyed and, even if they prepare a Reconstructed Agreement, this would fail to meet the requirements of CCA 1974 with regard to s.65 and s.127. A court does not have the power to enforce an agreement which is not properly executed. See more about this in Link #2 in my signature.

 

- i thought this was the case

- also the problem of illegibility of the copiy they sent me I understand there are regulations covering this point.

My problem at the moment is prioritising the order of the points in my defence

- do i assume unenforceability is my prioirity and then the invalid DN and swapping over without applying will be my "fall back" or is it all one defence.

I would also wish to raise how M & S continued to pass on details to SEVERAL DCA's whilst in dispute.

I think I need to also familiarise myself with the CCA 1974 as much as I can.

- thanks for the help

List of issues that need to be prioritised - my thoughts are...

Agreement is for original charge card - no signed agreement for unsolicited credit card (as per the Diana Mayhew case)

DN fails to meet the mandatory requirements (as per Harrison v Link )

Illegible document

If you have only just Acknowledged service, then you still have at least a further 14 days to submit a defence.

Can you confirm date of issue as 8th November 2012 .. if so.. your timeline is..

8/11/2012 + 5 for service = 13/11/2012 + 14 to AoS = 27/11/2012 + 14 to submit defence = 11/12/2012 = 33 days from date of issue.

thanks

- yes issued 8/11/12 -

will be acknowledging tomorrow online.

My thoughts on defence are the same really

- slick posted before you regarding the document received for the charge card and having no prescribed terms.

Whilst there is a T & C (illegible) with that application form (postmarked and with "90" handwritten on it)

is there any creedance for whether that "reverse" is the actual reverse of my application as several others received same document with same postmark and same handwritten "90" on it?

I just need to get this completely clear about the old app form for chargecard whether unenforceable due to no prescribed terms

but also because of doubts about reverse being a "true copy", and obviously illegible.

Also i can clearly remember we filled this in the store after approached by staff there - so we wouldn't have been given any T & C's then.

I appreciate how busy everyone is and once I have got the facts clear and know what format/wording I will work hard on the defence.

I was a union rep so not frightened of working hard-

many thanks again

I will have a search for some information for you tomorrow, Cleo..

Hi Cleo,

The order in which I'd raise the defence points is :-

1. There is no credit agreement for the existing a/c as it was converted from a charge card to a credit card without your signature on any new agreement.
   
2. The Application Form document supplied in response to your request for a credit agreement does not relate to the existing a/c.
   
3. The lack of Prescribed Terms as required by CCA 1974 renders the "credit agreement" document unenforceable by virtue of s.65 and s.127 of CCA 1974.
   
4. The T&C's supplied are illegible and were not attached to the "credit agreement" or Application when you signed it, nor were they ever supplied to you subsequently.
   
5. The DN is non-compliant with the requirements of CCA 1974 with regard to remedy for xxxxx reasons.
   

thank you so much for that

- when I have got the defence ready

I will post on forum for site team to look over if that's ok?

Do I need to quote cases in the defence ?

My head is much clearer now and as I said not frightened of hard work. Just going to A o S now.

So this is just the basic facts which I can expand on when I have to produce a witness statement?

I know I am not a lawyer however is there any weight regarding an unfair relationship .

M & S wrote to us saying they would refuse to correspond with us further regarding the matter.....

Hi Cleo,

You should refer to legislation or regulations that supports your defence and relevant case law.

The AoS is simply to confirm you've rec'd the claim and you intend to defend against it. You need not go into detail for the AoS.

I'm not sure that Unfair Relationship would come into your case. If M&S refused to communicate with you at any stage, that's their prerogative.

Others may view it differently though............

thanks - will get cracking with it. sent in the AoS today - no response so far to my CPR request or CCA as yet

cleo

they usually send a 'final response' saying will not communicate further go to the FoS. it's not uncommon. was that the case?

if you want delve into 'unfair relationships' have a read here for eg http://www.oft.gov.uk/about-the-oft/legal-powers/legal/cca/CCA2006/unfair/

eg '...Agreements completed before the new provisions took effect remain subject to the previous extortionate credit bargains provisions'.

as has been posted,

you seem to be in a fair position re: non compliant/illegible store card agreement in the first place;

in any event non compliance with reg 7 re 'fresh' agreement re to cred card (poss need for this agreement to have been signed also);

non compliant default notice; non accurate cca request response; and anything else?

Yes they put it in a letter after I wrote to them several times saying the account was in dispute and they shouldn't have been passing our details on.

They said they would not correspond further and only speak on the phone to us !

Regarding anything else yes possibly - they sent a notice of assignment back in January with another persons name on it but my address and then a letter rectifying this.

I think I will post both of these letters up (minus details) Thanks for the info

- my CPr and CCA were signed for on Monday 19th November and so far no response

- I understand I can request more time for my defence if the documents are not produced and I do this via CPR31.15 request???

please follow this guide to post stuff up:

scan the required letters/agreements/sheets - as a picture[jpg] file

don't forget you can use a mobile phone or a digital camera too!!

'

BUT......

ENSURE: remove all pers info inc. barcodes etc using paint program

but leave all figures and dates. {DO NOT USE A BIRO OR PEN]

convert existing PC files to PDF [office has an installable print to PDF option]

..

goto one of the many free online pdf converter websites [http://docupub.com/pdfconvert/]

it would be better to upload a multipage pdf if

you have many images too rather than many single pdfs

.

or if you have PDF as an installed printer drive use that

or use word and save as pdf

try and logically name your file so people know what it is.

i'e Default notice dd-mm-yyyy

.

open a new msg box here

hit go advanced below the msg box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

.

dx

.....my CPr and CCA were signed for on Monday 19th November and so far no response - I understand I can request more time for my defence if the documents are not produced and I do this via CPR31.15 request???

presume you used the 'template' 31.14 letter on cag sticky thread? if so, you gave them 7 days on that. and said if they need more time, for them to write to you agreeing an extension. but, yes, if no response in a bit, can ask them again to agree an extension if required.

cca request? is 14 days.

Yes they put it in a letter after I wrote to them several times saying the account was in dispute and they shouldn't have been passing our details on. They said they would not correspond further and only speak on the phone to us !Regarding anything else yes possibly - they sent a notice of assignment back in January with another persons name on it but my address and then a letter rectifying this. I think I will post both of these letters up (minus details) Thanks for the info - my CPr and CCA were signed for on Monday 19th November and so far no response - I understand I can request more time for my defence if the documents are not produced and I do this via CPR31.15 request???

Agreement extending the period for filing a defence

CPR 15.5

(1) The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.

(2) Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.

Regards

Andy

thank you - I would really appreciate a draft defence which I can flesh out at some point (have almost two weeks yet)or one I could adapt? never done it before .I appreciate how busy you are and am grateful for the assistance so far

Agreement extending the period for filing a defence

CPR 15.5

(1) The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.

(2) Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.

 

Regards

 

Andy

Cleo, really do look at the Mayhew case. It was featured in a cag newsletter some time ago. Go through the archive