M&S Money/Fenton Cooper

[faye93x]

In 2003 my partner got an M&S money card.

 

All was going well until he split from his ex-partner when he found the repayments a struggle at the amounts that were requested. He fell a month behind on the payments and on 30 Jan 2006 they sent him a reminder and he contacted them to make agreements to make weekly payments. The normal monthly statement arrived dated 9th Feb 06 and then 2 days later they issued a default notice. On 27th Feb 06 they sent a final demand?? A payment was made again on receipt of this letter (15th March 06) and a direct debit was set from his bank account. A default was registered on his credit file on 17th March 06.

 

Looking at the details on the credit file the information appears to be incorrect as they are saying that he was 6 payments in arrears and it has stated this for the previous 6 months from August 2005. On his statements up until January 2006 his payments were up to date.

 

The debt was passed to BTMK/Fenton Cooper. the first letter from them was dated 15th March 2006 - the same day as the payment made and the direct debit being set up.

 

He has been duly paying BTMK every month on time and for the amount that has been agreed since then but now they are not accepting a repayment plan and they want almost £3k in full.

 

What is the best course of action as it appears that M&S have acted incorrectly with regards to the final demand being issued after the default notice and the default being registered 2 days after a payment was made on the account and 2 days after being sent to the DCA?

 

We cannot afford to pay the DCA the money that they are demanding.

 

Is there any letters or course of action that can be taken other than bankruptcy?

 

Any suggestions would be gratefully received.

 

Thanks

[rory32]

The debt was passed to BTMK/Fenton Cooper. the first letter from them was dated 15th March 2006 - the same day as the payment made and the direct debit being set up.

 

He has been duly paying BTMK every month on time and for the amount that has been agreed since then but now they are not accepting a repayment plan and they want almost £3k in full.

Did the default notice give him 7 days to pay?

 

They can not just demand payment in full. They have no legal authority to do this. A court would allow him to pay by installments. If they have sent a letter to this effect then he should make a complaint to BTMK, the OFT and Trading Standards.

 

Is there any letters or course of action that can be taken other than bankruptcy?

He should certainly not consider bankruptcy for the amount involved. Are there any charges on the account? Has he requested a copy of the credit agreement?

 

He can send them the following regarding his offer of repayment:

 

Dear Sirs,

RE: Credit Card - Account Number: xxxx

Thank you for your letter dated xxxx, in respect of the above matter.

I am disappointed to note that you will not consider my proposal to satisfy my debt to you. I appreciate that this is not a wholly satisfactory state of affair, but this is the reality of my situation at the present time.

I would point out that I have investigated the options of an Individual Voluntary Arrangement and Bankruptcy but I feel that my proposal is certainly more beneficial to you than either of these procedures. Due to my present circumstances, I am unable to offer a better resolution and would respectfully ask that you reconsider my proposal, which was submitted in a genuine attempt to honour my commitment to you.

I further appreciate that you are not obliged to accept my proposal, however, considering that you are entitled to issue proceedings for the recovery of the balance owed to you, I would ask that you also consider, that in the event that these proceedings ensue, interest would be frozen upon Judgement and I would entirely reserve the right to produce my proposal for the attention of the Court, in evidence that I have attempted a sensible resolution in line with my ability to pay.

This notwithstanding, I would hope that the foregoing will not be necessary and that we will be able to resolve this matter amicably.

In the interim, I will forward payments to you as proposed, as a gesture of good faith. Please could you conduct any further communication in writing only.

Accordingly, I await your further comments.

Yours sincerely

Print name do not sign.

[faye93x]

The default notice gave 14 days to pay.

 

16 days later the final reminder was sent stating a different arrears amount.

 

We are going to look closer through the statements for charges that have been applied.

 

We have not sent a CCA request. But as he has been making payments does this not admit liability to the debt in any case? We are toying with the idea of CCA and SAR them.

 

Should I send the letter you have kindly suggested or CCA them and wait for them to respond as we are making payments anyway.

 

we both feel like we are on a double edged sword as we would like to be able to pay the debt off and have the default removed/satisfied but equally it seems M&S and BTMK have not acted in the correct manner.

[rory32]

We have not sent a CCA request. But as he has been making payments does this not admit liability to the debt in any case?

The point of law is not liability, it is enforceability. If the agreement does not comply with the Act then the debt still exists, however it can not be enforced even in a court of law. It then becomes your decision whether the debt is paid or not.

 

Should I send the letter you have kindly suggested or CCA them and wait for them to respond as we are making payments anyway.

Personally I would send the CCA request. They are not being reasonable and under such circumstances I would certainly wish to make life difficult for them. The bog standard letter that you will probably receive after the CCA request is that the account has been put on hold for 28 days. Keep us updated on how you get on.

[faye93x]

Thanks.

 

We will send one recorded delivery tomorrow and we will CCA Egg too.

[rory32]

Just to cheer you up, if the Egg account is a credit card it's highly likely it won't be enforceable.

[BlueSquirrel]

Ooh that's cheered me up too, why do you say this? I have an Egg Credit card...... what should I be looking for? I did CCA them and got an agreement which looked ok, except some of the sections referred to in the main text didn't tie up with the T & C and the APR was a bit boggly. I have asked them about this and they have just ignored me, which makes me suspicious, because if they had an explanation, surely they would have sent it by now?

[rory32]

I have an Egg Credit card...... what should I be looking for?

The fact that they state that you have an approved limit. They need to specify a credit limit, not an approved limit.

[BlueSquirrel]

The fact that they state that you have an approved limit. They need to specify a credit limit, not an approved limit.

 

Interesting.... the bit they say I have signed says Approved limit. Then under the SAR they sent a different set of terms and conditions which said Credit Limit. Hmmmm

[rory32]

The credit limit must be in the agreement. It can not be in another document entitled terms and conditions.

[faye93x]

Just a quick update on this. We sent the CCA request by RD on 9th Feb and it is 12 working days tomorrow. Is it at this point that we should atop making the payments to do we give another 30 days? Do we need to send them another letter?

[rory32]

After the 12 working days are up they are in default of supplying the copy of the agreement and you can withhold payments if you so wish.

 

The 30 days (or one calendar month to be technically correct) no longer applies as the summary criminal offence was done away with and any attempt to enforce while they are in default would be dealt with by the OFT under the Consumer Protection from Unfair Trading Regs 2008.

[faye93x]

Hi guys

 

just a quick update around the middle to end of March we recieved a photocopy of the application form from BTMK/Fentoon Cooper.

 

There is only the application form and not the credit agreement.

 

We recieved a letter from Fenton Cooper today which contains the following:

 

"We have not had a response to our previous letters (Nothing recieved since the application form has been sent) and we are now preparing to send your account to an external agency who may visit your home to discuss repayment terms. Please therefore contact us so that we may discuss with you a mutually acceptable repayment arrangement of the above debt"

 

What should we do with this, should we write to them or just ignore it?

 

Thanks in advance.

[WelshMam2009]

Hi guys

 

just a quick update around the middle to end of March we recieved a photocopy of the application form from BTMK/Fentoon Cooper.

 

There is only the application form and not the credit agreement.

 

We recieved a letter from Fenton Cooper today which contains the following:

 

"We have not had a response to our previous letters (Nothing recieved since the application form has been sent) and we are now preparing to send your account to an external agency who may visit your home to discuss repayment terms. Please therefore contact us so that we may discuss with you a mutually acceptable repayment arrangement of the above debt"

 

What should we do with this, should we write to them or just ignore it?

 

Thanks in advance.

 

An application form with a signature and prescribed terms within "4 corners" (i.e. front/back) can be enforced pursuant to s127(3).

 

Best if you paste it up for comments (remove any personal info).

 

Was this an upgraded store card by any chance??

[faye93x]

Hi there.

 

I dont have a scanner but all he has been sent is a photocopy of the in-store application form. It does not have the APR, Credit Limit, T&C's and only has a data policy at the bottom. It also has no "Authorised signature of Creditors"

 

This was an in store application that he made.

[faye93x]

My partner is getting quite worried that Fenton Cooper will pass the debt on for someone to come round to our house.

 

Can anyone hive him any advice?

[WelshMam2009]

My partner is getting quite worried that Fenton Cooper will pass the debt on for someone to come round to our house.

 

Can anyone hive him any advice?

 

You can issue a standard harrassment letter...see below...amend to suit. People often confuse the powers that Debt Collectors have (i.e. none!!) with those of bailiffs.

 

DCA's should not call without making an appointment and have to leave when asked. You can also revoke any common law license for them to visit you in the first place.

 

Also, check out this OFT guidance as regards what they can and can't do...

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf

 

 

 

Dear Sirs

 

I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.

 

I have verbally requested that these stop, but I am still receiving calls. (Delete if necessary)

 

I now require all further correspondence from your company to be made in writing only.

 

You are reminded of the following under The Administration of Justice Act 1970.

 

Section 40 of the act provides that a person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under contract, he or she:

 

(a) harasses the other with demands for payment which by their frequency, or the manner or occasion of their making, or any accompanying threat or publicity are calculated to subject him or his family or household to alarm, distress or humiliation;

(b) falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;

© falsely represent themselves to be authorized in some official capacity to claim or enforce payment;

(d) utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.

 

I am of the view that your harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

 

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Further to this all calls from your Doorstep Collectors must also cease unconditionally and with immediate effect. I note that there is only an implied license under English Common Law for certain people to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.).

 

Take note, I revoke license under English Common Law for you, or any of your representatives to visit me at my property and if you do so without my permission, you will then be liable to damages for a tort of trespass. You would also be conspiring in a trespass if you sent someone to visit me nevertheless. Any trespassers you attempt to send therefore will be dealt with accordingly.

 

Be further advised that any further telephone calls from your company will be recorded.

 

 

Yours faithfully,

[faye93x]

Hi, just a really quick update.

 

My partner received a letter from DLC today regarding the above debt. It seemd that Fenton Cooper/BTMK have passed this debt on.

 

We had moved and it appears that they have placed a trace on him and contacted us at the new address.

 

What is the best thing to do about this letter, I am sure that Fenton Cooper/BTMK should not have passed on a disputed debt/unenforceable agreement?

 

Any help would be very gratefully received.

[faye93x]

bump

[WelshMam2009]

I would just send DLC the same letter about not phoning or visiting as above.

 

I actually had a letter from DLC stating that they were going to send someone around within 7 days and ignored it. Nothing happened.

 

They do pass these debts around, it's a bit like pass the parcel!! The only way they can enforce is to go to court and, if they haven't got an enforceable agreement then they're unlikely to do this.

 

Threats such as calling at your property, telling you that they know you own your own house and they will apply for a charging order (even though they know they need a CCJ first) are all designed to frighten you into paying.

 

Oh, and if anyone should call, just ask them for their details and then tell them to leave. They have no lawful right to be there and, if you've told the company not to call previously, I would also send off a complaint to OFT.

 

Best of luck

[faye93x]

Do you think it is worth CCA'ing them too?

 

When the account was with BTMK all they could get was an in store application form so as far we are concerned it is not valid.

[WelshMam2009]

Do you think it is worth CCA'ing them too?

 

When the account was with BTMK all they could get was an in store application form so as far we are concerned it is not valid.

 

CCA is normally something you only have to do once. The next step would be to SAR the original creditor which costs £10 to see exactly the extent of the paperwork they have. Personally, I wouldn't bother at this stage. Passing the debt on is just another step in the debt collection process.

 

My M&S card was passed to Collect Direct and is now with Philips. I actually have a letter from M&S, in response to my CCA stating that they can't find a copy of my agreement and realise that it is unenforceable. However, the money is still owed and I guess the "game" continues until such time as the debt becomes statue barred (6 years).