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kennyruss v M&S money


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;1783176]as with the other two threads, have they been signed for?

 

if so 12+2 has come and gone.

 

cheers mate, needed to update

 

sent this recorded on 24th, no CCA, cancelled direct debit

 

Account in Dispute

 

Dear Sir/Madam

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On 1st Oct 2008 I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on 15th Oct 2008.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

This limit has expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

Edited by kennyruss
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Ok Folks, got a reply from M&S

 

firstly T&C's are just current printouts (never bothered to post up, but can if requested)

 

received and application form and a strange statement and also a covering letter that they are having technical difficulties in retrieving my info lol

 

as always comments appreciated

 

http://i401.photobucket.com/albums/pp98/kennyruss/MSCoveringletter.jpg

 

http://i401.photobucket.com/albums/pp98/kennyruss/MSStatement.jpg

 

http://i401.photobucket.com/albums/pp98/kennyruss/MSApplication.jpg

 

so no agreement...

 

what next

 

kenny

Edited by kennyruss
typing
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I think this is what you need:

 

Dear Sirs,

Account Number: XXX

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

I note that you have replied to the above by sending a copy of an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

Before leaving section 180 there are two other sections that should be remembered these are:

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

And more importantly

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

Yours faithfully

 

 

Ida x

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I think this is what you need:

 

Dear Sirs,

Account Number: XXX

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

I note that you have replied to the above by sending a copy of an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

Before leaving section 180 there are two other sections that should be remembered these are:

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

And more importantly

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

Yours faithfully

 

 

Ida x

 

perfect:)

 

thanks for the help mate....will get that off to them on monday morning

 

kenny

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  • 3 weeks later...

ok got my reply today

 

firstly as you will see on the letter - its says please find enclosed your application form - it wasn't supplied, but I suspect it was the same as the last one I got...

 

so they have had 2 attempts to send the info and outwith some statements and current T&C's here is what they have sent me of any relevance below

 

kennyruss/MARKSANDSPENCER - Photobucket - Video and Image Hosting

 

so what do I do next, no agreement, stopped paying direct debit....would like to have a go at settling, or do I let em pass it to a DCA??

 

as usual any advice aprrciated

 

kenny

Edited by kennyruss
typo
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ok, very similar to my MBNA letter, going to fire this off today, any comments??

 

I do not acknowledge any debt to M&S Money

 

Firstly I would like to thank you for your correspondence of 20th November. In response to this it is my view that the documentation supplied on two separate occasions by M&S Money is improperly executed.

It is also my view that the debt will be un-enforceable in a court of Law and therefore I acknowledge no debt to M&S Money

As you will know I have been forced to cancel Novembers and future direct debit payment due to my current situation. This situation is unlikely to change in the long term.

However, a family member has offered me a loan of £1750 and I want to offer this as an ex−gratia payment in full and final settlement of the account. This offer is made on the clear understanding that, if accepted, neither you nor any associate company will take any other action to enforce or pursue this debt in any way whatsoever and that I will be released for any liability.

 

I also request that, if accepted, you will make an entry on a credit reference agency file relating to the above account as "satisfied" in full.

 

Payment can be made within 2 weeks of receiving your written agreement of this offer and method of payment. If this payment is not accepted, I will be unable to make any payment other than a token payment of £1 per month.

I urge you to accept my offer whilst the £1750 is available to me as I have other creditors to approach.

I look forward to your response.

Yours faithfully,

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Hello Kennyruss!

 

Before offering them anything, I'd do some sums first to work out where you really stand in terms of what was Spent and what was Repaid.

 

I've posted this elsewhere, but it may be useful:

 

If you have all of your Statements, then I'd go through them and make sure you have all of the Big Numbers to hand, by that, I mean:

 

A Total of how much you spent.

 

B Total of any Unlawful Charges (Late Fees, Over-Limit Fees etc).

 

C Total of any Lawful Charges, if any.

 

D Total of any Payment Protection Insurance (PPI), if any.

 

E Total Interest they charged.

 

F Total of how much you repaid.

 

Add up A to E and take off F, and that should match the Balance of the Card.

 

However, if there's a B and a D, these can be re-claimed.

 

Also, just to show where you really stand in terms of how much money really changed hands, take F from A and see if it is positive or Negative. If it's Negative, then you have Paid them more than you have ever spent, if Positive, then the amount is how much you ended up getting from them that has not been repaid. That is effectively the true Balance.

 

Often, this can be very sobering. Many find they have Paid back more than they ever spent. Anyone who has had a Credit Card near the Credit Limit for several Years has nearly always Paid back more than they ever Spent. Thus, with no Agreement, there is no Debt, period. They owe you.

 

If there is no Agreement, then they never had any Right to charge Interest and other fees, which is why I have ignored them in the above A-F calculation. Likewise, any money they did give you over and above what you repaid, is effectively a Gift. That is their penalty for failing to organise the very Agreement they needed to charge Interest and Fees, and to force you to repay both them and any surplus of money you Spent over money you Repaid.

 

If they have no Agreement, then it's important to work out what you really have Spent and what you have Repaid. It may be the case that you have already Repaid what you have Spent, and the Balance that remains is just the sum Total of all their Charges and Interest.

 

If that is the case, do you really want to Offer them £1,750 towards their Xmas Party and Xmas Bonuses? Because to Pay them when they haveno Agreement would be more or less the same thing as giving them a nice Christmas Present.

 

Also, beware offering to Pay them £1 if there is no Agreement, as all you are doing is re-setting the Statute Barred Clock every time you make another Payment.

 

The alleged Agreement they have sent does not have any Prescribed Terms, so is not Enforceable via s127(3).

 

Furthermore, the Terms & Conditions they have sent are clearly a poor Micofiche Scan of some Terms they have dug up from somewhere else. These have been seen before, same barcode, same numbers. So, they are trying to pull your plonker! They are just sending out the same Copy to everyone. It is NOT the rear page of your Application Form.

 

I'd think long and hard about parting with that £1,750!

 

Hope this helps.

 

Cheers,

BRW

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Het BRW,

 

some fantastic points there mate, I would need to SAR them,to get that kind of info, I only keep maybe the last 2 or so statements

 

However I do have online banking, so I wonder how far I could go back with that and check my statements

 

the £1750 represents about 25% of the total debt. TBH if they wrote back and said yeh they would accept F&F I would bite their hand off... although I do see your point and agree with it...

 

will check my statements in the morning and see what it amounts to

 

thanks

 

kenny

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ok BRW done a quick check

 

paid £720 a year for approx 3 years (minimium amount each month), and then £1800 in the last year (balance transfer)

 

so in effect by my reckoning paid bout £4k to M&S on a £7k debt

 

kenny

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Hello Kenny!

 

To put this into perspective, I'm fighting a Card at the moment that says I owe them over 20k.

 

But I have all the figures, and they do not have an Agreement worth squat.

 

I know that over the life of the Card, I have Repaid them over 5k more than I ever spent.

 

I'm not about to offer them a brass farthing, indeed, I'm aiming to get that 5k back off them!

 

If you are in the same position, i.e. once you work out the true position, you may find that handing over the thick end of 2k is not such a good idea!

 

With No Agreement, you are now in the driving seat, so take your time.

 

The Economy is just heading round the U-Bend at the moment, and in 18 Months time, you may be very glad you held on to that £1,750.

 

...or, you could be kicking yourself for giving it to M&S!

 

All I'm saying is T-A-K-E Y-O-U-R T-I-M-E.

 

Invest in £10 and send them a S.A.R - (Subject Access Request). Use the 40 Days to think about things!

 

so in effect by my reckoning paid bout £4k to M&S on a £7k debt

 

Once you have the S.A.R - (Subject Access Request), you may find that some of that 7k Debt is made up of Charges, and some of their Interest wasn't polite either.

 

Soon, you may find the real amount you Spent but did not cover via Payments is closer to £1,750. In which case, a £500 or £1,000 Full & Final may seem more appropriate.

 

Just make sure what ever you Offer them, is based on hard figures and that you are 100% happy with the Offer.

 

Cheers,

BRW

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cheers mate I will probably SAR them just to have the info...

 

now my halifax card will def be worth an SAR - paid em an absolute fortune

 

heres my "agreement" and stuff

kennyruss/HALIFAX - Photobucket - Video and Image Hosting

 

if you want a gander:rolleyes:

 

tbh probably worth SAR'ing them all - just for the info

 

kenny

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  • 2 weeks later...

ok guys Subject Access Request'd them about a week ago...

 

here is there response to my 25% F&F

 

 

Image of M&S80% - Photobucket - Video and Image Hosting

 

now obviously they can GTF with there 80%, but is this an admission that they know they cannot enforce this debt???

 

any advice on my response.... my absolute ceiling is 33% for a quick closure, or do I simply reply and say..my final offer is 25%

 

kenny

 

ps my other thought, is to write to them forget the DCA, lets go to court:)

Edited by kennyruss
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ok guys Subject Access Request'd them about a week ago...

 

here is there response to my 25% F&F

 

 

Image of M&S80% - Photobucket - Video and Image Hosting

 

now obviously they can GTF with there 80%, but is this an admission that they know they cannot enforce this debt???

 

any advice on my response.... my absolute ceiling is 33% for a quick closure, or do I simply reply and say..my final offer is 25%

 

kenny

 

ps my other thought, is to write to them forget the DCA, lets go to court:)

 

ok the ball is still my court with this one.... they rejected my 25% offer and would accept 80% - which I am not prepared to accept... like above my absolute max is 33% - but unsure whether to stick to 25%... any advice please...:)

 

is their 80% offer an admission of no enforceable agreement???

 

in the meantime my SAR arrrived, with my £10 PO returned??

 

they sent me over 110 pages of A4 sheets...

 

I have scanned in the first 3 - the rest is just absolute tosh... sheets upon sheets of figures, I can make no sense of....

 

why did they not just give me a full SAR as requested

 

Image of M&SSARCL051208 - Photobucket - Video and Image Hosting

 

Image of M&SARSD051208 - Photobucket - Video and Image Hosting

 

Image of M&SFSAS051208 - Photobucket - Video and Image Hosting

 

 

so all advice appreciated:)

 

kenny

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Hello Kenny!

 

is their 80% offer an admission of no enforceable agreement???

 

I wouldn't read anything into that at all. It could be they just want to see how much you can Pay.

 

in the meantime my Subject Access Request arrived, with my £10 PO returned??

 

Just send the £10 Payment back, say you want all the Data they hold on you, and the 40 Day Clock is already ticking.

 

By all means say you don't need the same details sending again that has already been sent, but you do want to see everything else.

 

Also add that the £10 Statutory Fee is not a Payment towards any alleged Debt.

 

Cheers,

BRW

Edited by banker_rhymes_with
Clarity.
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firing this off to them today... bearing in mind that they have said they will accept 80% F&F...I also requested again my SAR

 

I do not acknowledge any debt to M&S Money – Account in Dispute

 

Firstly I would like to thank you for your correspondence of 1st December in which you refused my 20% Full and Final settlement. In response to this it is my view that the documentation supplied on two separate occasions by M&S Money is improperly executed.

It is also my view that the debt will be un-enforceable in a court of Law and therefore I acknowledge no debt to M&S Money.

I offer this 20% F&F settlement to M&S for a final time, as I need to approach other creditors ASAP. This offer is made on the clear understanding that, if accepted, neither you nor any associate company will take any other action to enforce or pursue this debt in any way whatsoever and that I will be released for any liability.

 

I also request that, if accepted, you will make an entry on a credit reference agency file relating to the above account as "satisfied" in full.

 

 

 

 

Payment can be made within 2 weeks of receiving your written agreement of this offer and method of payment. If this payment is not accepted, I will be unable to make any payment other than a token payment of £1 per month.

I also note that whilst this account is in dispute you should not be adding interest or charges, requesting payments or harassing me with numerous calls. I am sorry to say that M&S is guilty of all above and I will be reporting M&S to the appropriate agency. Furthermore you cannot pass this debt to a DCA as no agreement exists.

As I have already stated this is MY FINAL OFFER to M&S…

I look forward to your response.

Yours faithfully,

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Hello Kenny!

 

Just one caution, I'd not rush into Paying them £1 a Month, because all that will do is keep the alleged Debt live and will deny you any of the benefits of the alleged Debt becoming Statute Barred after 6 Years of non-Payment.

 

I'd delete that, otherwise you could just prolong the agony for +6 Years beyond every £1 Payment.

 

That could allow a whole herd of DCAs to keep picking up the Baton to have a go at running with it themselves.

 

Finally, I would put a strict time limit on your 20% Offer, and make it clear it will be withdrawn forever if not accepted by that Deadline.

 

The above is just my opinion, you must act on whatever steps you feel are best rather than follow what I say to the letter.

 

Cheers,

BRW

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noted and changed...

 

thanks mate... hear from you soon:)

 

kenny

 

Hello Kenny!

 

Just one caution, I'd not rush into Paying them £1 a Month, because all that will do is keep the alleged Debt live and will deny you any of the benefits of the alleged Debt becoming Statute Barred after 6 Years of non-Payment.

 

I'd delete that, otherwise you could just prolong the agony for +6 Years beyond every £1 Payment.

 

That could allow a whole herd of DCAs to keep picking up the Baton to have a go at running with it themselves.

 

Finally, I would put a strict time limit on your 20% Offer, and make it clear it will be withdrawn forever if not accepted by that Deadline.

 

The above is just my opinion, you must act on whatever steps you feel are best rather than follow what I say to the letter.

 

Cheers,

BRW

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  • 2 weeks later...
  • 3 weeks later...

hello everyone and a happy and lucky 2009

 

any updates on this kennyruss pls?

 

im appearing to have received similar to you and cleo so havent paid them and am contemplating a dispute letter and illegible too, but wanted to see where you were on your offer given

 

any bites?

 

have a fun day

 

laters angel x

Im happy to help with support and my own thoughts, but if I offer any thoughts to your problems please take it as from my life experience only and not of any legal standing. Always take further advice from the legal experts in your final action.:)

 

my new motto is,,,",Taking back control of your life and home - such peace is priceless"

 

This is all due to truecall device , have a serious peek at this you will be thankful like I am x laters angel :D

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hello everyone and a happy and lucky 2009

 

any updates on this kennyruss pls?

 

im appearing to have received similar to you and cleo so havent paid them and am contemplating a dispute letter and illegible too, but wanted to see where you were on your offer given

 

any bites?

 

have a fun day

 

laters angel x

I am awaiting a reply to my letter informing them it is illegible etc and that they have also sent me someone elses information. They have also sent me a letter saying ..."I am unaware of all options available to me..... and that "...with my cooperation this can be resolved without the need for legal proceedings..." I have written back asking them to inform me that if I am unaware of options available to me for them to inform me of what these options are..." I suspect they won't terminate because the DN was invalid .

Happy new year to all cleo

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ok guys..

 

got a response to my second F&F - below

 

still a/w my full SAR request after they supplied me with only statements

 

pondering my next move if any.. or just wait???

 

thanks

 

kenny

 

MSreply291208.jpg

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