M&S 1991 chargecard - is this application enforceable?

[IdaInFife]

Hi Robin,

 

your letter is fine and contains everything relevant

 

have you read this:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

there is a couple of posts in scotland forum where mands have issued court proceedings on the same as yours and there are defending on full and waiting on hearing dates

 

ida x

[robinredbreast]

Thanks Auntie Ida ...

 

M&S have stated in their responses that the application form and agreement form act as one and the same.

 

Letter to them for c card will go off on Monday, I also have a preference account with them, where they have sent exactly the same thing, with their template responses exactly the same. They have sent just an application form, and past (blurred) t&cs, and present t&cs.

 

So will also send off a letter on Monday saying the same for this acct too.

 

If they reply to my next letter(s), with the same drivel of "we have examined the agreement and account and believe it enforceable, evidenced not least by your use of the account, and collection activties will continue" ending in the usual, this is our final response, go to FOS if you remain unhappy.

 

Shall I send if off to FOS , or shall I just leave things hanging, and see what happens next i.e DCA comes on the scene..... or they issue court proceedings.... etc

 

Any thoughts on best way to be played?

 

Robin xx;)

[IdaInFife]

it's really up to you on what you what route you wish to tkae and would feel comfortable with

 

ida x

[robinredbreast]

Ok, thanks Ida, will play it by ear ...... !!

[emmtay]

Hi

Im in a similar situation it seems.

Ive just received back my 2nd copy of an application form, NOT and agreement, which i took out as a chargecard in jan 1994.

I'm fairly naive when it comes to things like this, and I've spent weeks reading through threads on m&s stuff, so forgive my ignorance but, could I not just send my paperwork to FOS and send m&S a letter telling them i've done this as they obviously have no signed agreement, since sent same paperwork twice now, and to save this merry-go-round?

Also, I am still paying the minimum monthly payment by DD, should I stop the payment or continue?

Any help would be much appreciated

Many thanks

Emmtay

[robinredbreast]

Hi and welcome fellow M&S victim ....!

 

FOS will only look at your complaint, once a final decision has been issued by, in this case, M&S.

 

The fact that they have sent you an application form, without any , or all, of the prescribed terms contained within it, does not meet the terms of the CCA74 and effectively makes the agreement unenforceable.

 

I would just write back and tell them this - once they send you a response with "this is our full and final decision" then you can go to the Ombudsman Service - if you wish.

 

If you stop payments, which you are legally able do to as the acct is in dispute, then they will be relentless in phoning you - will throw a default on you after 3 mths of missed payments, and ignore everything you say about OFT collection guidlines, saying that they don't have to adhere to them.

 

I have reported them to the OFT about this.

 

Good luck ..

[ODC]

Watching this thread with interest as I too was issued with a Credit Card which I didnt ask for

[emmtay]

Thanks for that Robinredbreast

I think i'm going to continue to pay monthly dd for now, but will send a letter saying they obviously dont have an agreement so the debt is unenforcable?

Have you sent a similar letter already? Can't remember who's done what, i've read that many posts!

I would be far more confident if i knew someone had actually won against m&s on this, does anyone know anyone who has?

thanks

emmtay

[hme.4x4]

I'm in the same boat with them too. They have sent me three illegible microfiche copies, plus some other persons CCA who lives in Wigan, a letter asking me to provide a signature for my new married name, a letter asking me to sign a declaration that I have not or will not use the details of the other persons CCA...........unbelievable....all ignored by the way

[cerberusalert]

I'm in the same boat with them too. They have sent me three illegible microfiche copies, plus some other persons CCA who lives in Wigan, a letter asking me to provide a signature for my new married name, a letter asking me to sign a declaration that I have not or will not use the details of the other persons CCA...........unbelievable....all ignored by the way

 

Have you reported them to the Information Commissioners Office?

[robinredbreast]

Well, I have recd a default notice for my pref acct now .. and a demand for full payment within 48 hrs, but the day I revd the letter is 48 hrs later then the date they sent it .... ???

 

Numerous calls every day, msgs left on ansaphone ... so have reported them again to OFT.

 

Still in dispute .... asked them to please, please tell me where the prescribed terms are within the agreement, not the t&cs or anywhere else ..... but in the agreement !!!!!!!

 

They fudge, wriggle and try to obscure the facts, but they fail ... I think my next reply will be .. this is MY final response ... and I would welcome a defence of your claims in court .... "do'ya feel lucky, well do'ya punk... go on make my day" ..... !!!! (48 magnum packed with CCA and case law and ready for action my friends... !!!! )

 

Keep the faith good people, all report them to OFT, get their credit licence removed and hey presto .... no more problem ...

 

Deep breath now...... and release ..... deep breath .... and release....:grin:

 

Robin xxxxxx

[hme.4x4]

Yes, I have reported them am still waiting for a reply......

[IdaInFife]

there is a couple of caggers in the scotland forum at court stage

 

http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/195822-m-more-court-papers-2.html

 

iv'e asked beetle for nay update if it helps

 

ida x

[robinredbreast]

Thanks Auntie Ida .. that would be great .... all help is v welcome ... !

[fedupwithdebt2009]

Hi there, with ref to the postings I made earlier in this thread......M&S must know that the application form they sent me is unenforcable and I will tell you why........are you sitting comfortably??

 

I have been paying Rockwell for YEARS £5 per month for the M&S card I took out in 1994 (yes thats right!!!!!!)

 

Anyway I decided to ask for a copy of the CCA in 2007 and when I got the app form back I stopped payments cos I know its unenforcable......

they only send a photocopy of the app form ..no statements to show how they worked out I owed thrm X amount of money etc.

 

SOOO...many threats of court action etc from M&S, and a recorded delivery of the said app form by them!!! they were going to issue court claim.. so I said "go ahead, I'll see you there":D

 

Funny how they did nothing and passed it onto yet ANOTHER bunch of muppetts. This time its "COLLECT DIRECT UK" yikes I'm scared!!! (NOT!!!....M&S)

 

They issued usual dribble about how I would have to go to court and the bailiff would be knocking at my door and then they moved on to the "we are about to investigate you" threat!!

 

Yipee I replied....good go ahead, see you in court guys, after reporting you for your lovely letters....all of which were designed to scare the pants off me (OOhhhhhhh)!!!

 

Soo....I emailed them (different tactic) and told em to get a grip and stop sending daft letters cos my solicitor could only cope with one laugh a day in this current climate!!

 

Soo....they said, hows about you just pay us the £5 you were originally paying to rockwell all those moons ago, and we'll say no more about it.

 

Sooo...I said yeah ok then, cos you know I'm ready to dispute any claim you come up with dont you, and they said..."yes Madam we do!!!!!!":D

 

 

 

Hope you enjoyed todays jackanory peeps.....

 

fedup xx

[ODC]

I just wonder why are you even paying them a fiver.

[banker_rhymes_with]

Hello ODC!

 

I just wonder why are you even paying them a fiver.

 

Spooky...you read my thoughts!

 

I'd stop paying them, because all it will do is keep re-setting the Statute Barred Clock every time a payment is made, causing this issue to drag on more or less for ever.

 

Cheers,

BRW

[fedupwithdebt2009]

I'm paying because I owe the money......regardsless of their tactics etc

[banker_rhymes_with]

I'm paying because I owe the money.

 

But do you?

 

No enforceable Agreement, then they have no right to add charges and interest.

 

Might be wise to take a good long look at the numbers to see how the alleged Debt is made up.

 

Cheers,

BRW

[ODC]

I'm paying because I owe the money......regardsless of their tactics etc

 

You may owe the money but its not to a DCA. If M&S sold this debt on to a DCA then they will have sold it for a pittance, claimed its full value in Tax Relief from the Government and wrote it off. If M&S still own the debt and you feel you owe the money then why not pay M&S directly and cut the DCA out of the loop.

[robinredbreast]

Hi,

 

Have recd a reponse from M&S to my last letter, in which I have advised them, that as they have admitted the prescribed terms for the chargecard are in the separte t&cs, to which the appliction form (their alleged agreement) makes no referral to - then the agreement is unenforceable.

 

I haven't even mentioned that the agreement provided is for a store card, when I now have a credit card that was unsolicited and sent out by them.

 

Anyway, they have just sent the same template letter to me, "we have examined the agreement, we believe enforceable .. blah blah .. not least evidenced by your use of the account ... go to FOS if unhappy .. blah blah ..."

 

So, could I have advice on how you phrase your letter saying, basically, we are at stalemate ... I believe unenforceable .. you believe enforceable .. etc ... and in essence saying to them, either drop it or issue court proceedings ....

 

Or just go to FOS to delay things, then when FOS no doubt come back with "we are not in a position to determine validity of contracts", then use that to say to M&S, well they can't decide, so you best let a judge do it ...

 

What do you think ???? Are there any templates on here when you basically saying to them, my position is clear, and this is my full and final response ...?

 

Anyhelp or anyones experiences greatly appreciated ...

 

Thanks chicks ...

Robin

Edited June 9, 2009 by robinredbreast

[robinredbreast]

v quiet bumpty bump ...!!!!

[robinredbreast]

Hello ? Anyone out there ???????

[ODC]

I think M&S have too much to lose. They did after all issue a huge amount of unsolicited Credit Cards a few years back to existing Charge Card holders

[robinredbreast]

Hi .. yes I haven't brought the replacement card into the mix

 

Guess not as powerful as the CCA they provided, which does not meet the terms of s60 of CCA74 - which is the basis of my complaint.