M&S 1991 chargecard - is this application enforceable?

[robinredbreast]

Hello,

 

Have cca'd M&S on my credit card (which started life back way back when in 1991 as a store charge card).

 

They have replied, with a copy of an application April 1991 (and copy of reverse, which is just a prepaid address showing brand of St Michael), copy of 91 t&c (very blurred and hard to read), and also a copy of current t&cs. (pdfs attached)

 

Question ... is this enforceable ? If not, could some one give me an idea of a defence, and which letter to use, or any templates they know of?

 

Appreciate all help given, and hope someone can guide me ...!

 

With thanks ....

M&S app 1991.pdf

M&S reverse of app 1991.pdf

t&c m&s 1991.pdf

[cerberusalert]

It's an application form which doesn't have the prescribed terms within the four corners of the signed document nor are there any links to them, so it's unenforceable.

[robinredbreast]

Many thanks for your help.

 

I have found a letter on site which seems to cover this - so will send that off to M&S and see what they come back with.

 

Will come back and give an update on what happens with this one.

[robinredbreast]

Hi all,

Update on this one.

M&S have sent a response quote ...

 

"M&S money believe that your agreement is a legally enforceable document and as such refute all of your allegations."

 

"Due to the nature of your enquiry M&S Money would strongly recommend that you seek immediate independent legal advice regarding the validity of your complaint."

 

They then go on to say to refer to the Ombudsman if I remain unhappy.

 

Can I just confirm what my next move would be with them... should I resend the "in dispute" letter?

 

Many thanks for any and all advice ....

[almond]

Hello,

 

Have cca'd M&S on my credit card (which started life back way back when in 1991 as a store charge card).

 

They have replied, with a copy of an application April 1991 (and copy of reverse, which is just a prepaid address showing brand of St Michael), copy of 91 t&c (very blurred and hard to read), and also a copy of current t&cs. (pdfs attached)

 

Question ... is this enforceable ? If not, could some one give me an idea of a defence, and which letter to use, or any templates they know of?

 

Appreciate all help given, and hope someone can guide me ...!

 

With thanks ....

 

 

hi

mine is the same 1987 but i can't post , had a call from them today and a letter saying pay up in 48hours or else,

sending a letter now and wanted to keep in touch looks like we are at about same stage

good luck

[IdaInFife]

i would send back in response to confirm that they are taking ballicks:

 

Dear Sirs,

Account no xxxxxxxxxxxxxx

 

Re: my request under the Consumer Credit Act 1974

This account is in Dispute .

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

2.6 Examples of unfair practices are as follows:

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

I respectfully request a response to this letter in 14 days

 

I trust this out lines the situation

 

 

Ida x

[robinredbreast]

Hi,

 

Thanks for replies ... all M&S caggers welcome !!

 

Thanks also for dispute letter to send, this is pretty similar to the one I sent stating in dispute .. have attached as PDF if you want to take a look ..

 

Are we sure that this isn't enforceable, I know I've read the posts on the prescribed terms etc, and that what they've sent me doesn't quote interest rates, but it does say at the top of the app that its a credit agreement regulated by the CCA74, and does have mine and their signature.

 

Suppose I just want to be extra sure that when I'm tellling them to toddle off I'm doing it with the law on my side, not theirs ...

 

Thanks people ... !!

Edited June 20, 2009 by robinredbreast

[cerberusalert]

Suppose I just want to be extra sure that when I'm tellling them to toddle off I'm doing it with the law on my side, not theirs ...

 

What they sent you is an application form which can no way be construed as an enforceable agreement as it does not contain the prescribed terms such as %APR and repayment terms. The T&Cs provided with it bear no relationship as they are not within the four corners of the agreement.

[robinredbreast]

Phew ... !!!!!

 

Do you suggest I send the same dispute letter again, or the one thats been kindly donated by the lovely Ida? (Or is there any other letter that you think would fit the bill better?)

 

Many thanks .... your help is greatly appreciated ....

[ScarletPimpernel]

Their response indicates that they know that the paperwork they sent isn't an enforceable agreement; in fact, it's very similar to a letter that HSBC send out in similar circumstances. Unsurprising, since M&S Money is operated by HSBC.

 

Their letter is designed to mislead. It's a scare tactic. Read it carefully, and you can see the holes:

 

M&S money believe that your agreement is a legally enforceable document and as such refute all of your allegations.

 

OK. But so what? All they are saying is that they disagree with you. It's a template, too, so they don't tell you why they think the agreement is enforceable.

 

Due to the nature of your enquiry M&S Money would strongly recommend that you seek immediate independent legal advice regarding the validity of your complaint.

 

Note that they don't suggest that you should take advice on the enforceability of the agreement, but just on the 'validity of your complaint', which, whilst it sounds more like something you would go to your GP about, is actually nonsense, since you haven't actually made a complaint at all, just stated the facts as you see them.

 

Weasel words; best ignored until you see what they come up with next.

[robinredbreast]

Thanks so much for your great advice Mr Pimpernel ... !!

 

I was only thinking earlier, shall I write back and ask them as part of my dispute letter, why they think its enforceable ...

 

I've cancelled my DDM - so would you suggest sending another in dispute letter just to top and tail it to them?

 

This is so exciting ... !!!!

[robinredbreast]

Hi all ..

 

Just a small bump to see if I should send another "in dispute" letter to put them clearly in the picture?

[cerberusalert]

There's no need to get involved in a game of postal ping-pong with them. You have already disputed the validity of the CCA & until they produce something enforceable they are stuffed, so you might as well wait until they make their next move.

[ScarletPimpernel]

As Cerberusalert says, wait and see what they come up with next. The aim of their letters is to get you to contact them; ignoring them frustrates their efforts, as does refusing to engage with their risible claims and demands.

 

The worst they can do is issue a court claim, in the hope of a default judgement. However, whilst such a claim would be easy to defend it's unlikely they'll go that far - they tend to stick to posturing letters. I've found an effective response (if one is needed), is to simply write and say that 'my position was set out in my letter of (date) and is unchanged'.

[robinredbreast]

Many thanks 4 advice ... any letters from them will be scanned and posted, so everyone can have an update on the situation.

 

So in the meantime lets watch and wait ...

 

(I'll also possibly be posting on a MS preference account soon, but will start a sep thread for that. I've already CCA'd them on this, and they sent me a similar application form, but I haven't sent the dispute letter off yet .. Once I do, if its the same reply, I'll just do the same and ignore till they give me a correctly executed agreement ... )

 

Remember to continue to fight the good fight people ..... xxxx

[ajs444]

Hi RRB,

Going through the same process with M&S, you find you are hitting your head off a brick wall!

Sent account in dispute letter, phone calls/letters still continue, they eventually start phoning you early in the morning at weekends, which is rather annoying.

I have given paperwork to the FOS but still they continued to harass even though I gave them the case reference etc.

They issued me with default notice and have now given details to a DCA, these all defy ACCOUNT IN DISPUTE letter.

Many other caggers having same problems in Other Institutions/Store Cards section.

[robinredbreast]

Well M&S did call and I politely told them the account was in dispute.

 

They said they will diary for 28 days as hopefully the dispute will be resolved by then.

 

Of course it won't be, unless they produce an enforceable agreement. No doubt they will eventually pass to a DCA, who will also be politely told the act is in dispute ... and probably round and round we will go.

 

Totally expect a default off them, but will challenge this on the basis that they do not have legally enforceable contract documentation to base a default on or process data.

 

If that's unsuccessfull, will probabaly have to wait for it to fall off after the 6yr timescale expires - keep in touch on this and hopefully we can give each other some help and moral support along the way ...!!

 

xx

[almond]

can i just ask are we all requesting cca for our credit cards accounts but they are sending us cca application forms for our storecards

[ajs444]

Yes Almond, that is correct.

Storecards were changed to credit cards by M&S later on, without issuing new Agreements.

[almond]

so how are they going to explain this i wonder

[robinredbreast]

Thats another good point - the copy application forms they are sending out, are for a storecards, not the More Than credit card that we automatically received. Also as such would imagne they have different account numbers.

 

Having said that, I suppose they could argue that storecard holders did not have to accept (i,e use) their new credit card and could have closed their account.

 

Just playing devils advocate ... and waiting on their next move, but what they've sent isn't enforceable, so I suppose storecard or credit card there's no way forward for them either way.

[robinredbreast]

Hi,

 

Have received a "please reinstate your ddm and pay us some money" letter from M&S regarding my card.

 

Any advice or just ignore ...?

 

Will M&S persue this through the courts do you think, even though the agreement they sent is an application form, with no prescribed terms evident?

[Patma]

Hi Robinredbreast,

I'm on the same merry go round with M&S. Mine dates back to the late 80s and all they came up with was a mainly illegible application form which they've now sent no less than 3 times.

You'll probably get a variety of different letters,because they like to try new angles, but I agree with Scarlet Pimpernel, that there's no real need to keep replying to them.

[fedupwithdebt2009]

Hi there, have a look at the app form they sent me in reply to my cca request....here:- http://www.consumeractiongroup.co.uk/forum/general-debt-issues/176588-rockwell-cca.html

 

M&S are getting very stroppy now and have passed this debt onto another DCA who very nicely offered me a doorstep visit, which I'm now waiting for, and when he comes ..sorry IF he comes then I will report him for tresspassing on my property!!

 

Never the less, the app form is still unenforceable like yours, but M&S think it is (basically had same letter saying they believe its enforceable)...

 

Fedup

[ajs444]

FOS dealing with my complaint against M&S, all harrassment has stopped, get no phone calls nor letters, could be the lull before the storm!!!!