M&S 1991 chargecard - is this application enforceable?

[JK36]

I'm glad i have come across this thread as I too am in the same position, have been sent an application form for a years old chargecard which they replaced with a credit card.

 

So far I have filed it away, as I think it can't apply not even being the same card. Surely a charge card and a credit card are two very different financial products so how could they be under the same agreement?

 

So far I've just filed away the chase letters, mine is with PLR (ermmm part of M&S!!) at the moemnt, sent a letter questioning why transferred to them 2 months ago, they are still chaing.

 

i am still siting waiting...

 

Will watch your progress with interest

[almond]

i have just had another call from dca for m&s not answered it this time 01789, on friday got a letter from plr and they never even stuck the envelope down so anybody could have read it, not sure what i do now?

do i cca plr because all i got from m&s was an mirco film app form, i sent a letter stating i could'nt read it but heard nothing back, not been keeping up with threads but now need to get onto it again

thanks for help in advance

[robinredbreast]

I would firstly send the bemused letter to the DCA.

 

If you didn't put it into dispute when M&S sent the illegible app, then do so now. Write again to them advising them that the have not fulfilled your request, and their obligations of providing a legible copy of your correctly executed agreement, and that the acct is in dipsute.

 

Advise them that it will remain in dispute until they fulfill your request - and don't forget to quote the OFT guidlelines for debt collection on accts in dispute in your letter to them. (there are template letters on here for this)

 

Don't sign, and send recorded - them wait and see what they come back with ....

 

If its another application form, without the prescribed terms in it (like mine), then you have them by the short and curlys ..... as its rendered unenforceable .....

 

Good luck .... !!

[robinredbreast]

Ok ....

 

Wrote to M&S saying that as the pres terms are not in the agreement provided, then it is rendered unenforceable .....

 

They have come back saying, and I quote ....

 

"For your information section 61(1)(b), states that the prescribed tems do not have to be on one single sheet of paper, but included or embodied by reference. We believe the agreement is enforceable etc .. etc.. etc..." What they are basically saying is they are in the illegible t&cs ...

 

Now obviously I know that the pres terms need to be within the 4 corners of the agreement, and that this can consist of 1 page or run to several pages ... but that clear reference needs to be made within the agreement, where each of the pres terms can be found if not on 1 singular page (i.e signature page).

 

Now, I have had a good look again at what they have provided (see post 1), and the only thing I can see is right at the top where it says " loss or misuse of cards see condition 17 above" - but thats it ...!! No other referral to anything .. bearing in mind it is an application, that they have said acts as a regulated agreement for their purposes.

 

Any comments or thoughts anyone on how best to blow them out the water again ....?

 

Robin xxxxx

[robinredbreast]

The T&Cs supplied with my copy cca, were not attached to the application - as you can see the app and back page have matching torn edges, whereby the illegible T&Cs are from a separate microfiche roll by the look of it.

 

Also, am I correct in thinking that the reference at the top left hand corner on the app, stating refer to condition 17 above re lost and mis use of cards, does not satisfy s61(1)(b) of CCA74 regarding the pres terms?

 

Does it have to identfy that the agreeement runs to more than one page, and spcifically identify each individual pres term, and state its exact location within the agreement documentation i.e interest rate = refer page 2, paragraph 3, part b, or something like this?

 

Help .... ?????

[banker_rhymes_with]

Hello RB!

 

The Consumer Credit Act 1974

 

The Prescribed Terms are not covered by s61(1)(b), but by s61(1)(a). There's a key difference! One uses the word Contained and only in relation to Prescribed Terms, whereas the other uses the word Embodied, and in relation to General Terms.

 

The Act does not say the Prescribed Terms can be embodied into an Agreement from another document, whereas it does say, clearly, that the Prescribed Terms must be Contained. Lock in to that word, as it is the key to the issue.

 

Do not let them hood wink you by claiming s61(1)(b) covers the Prescribed Terms, because it does not. This issue has binding precedent:

 

I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer Credit Agreements". Some of this information mirrors the terms prescribed by Schedule 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

“33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the Court can identify within the four corners of the Agreement. Those minimum provisions combined with the requirement under s61 that all the terms should be in a single document, and backed up by the provisions of s127(3), ensure that these core terms are expressly set out in the Agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the Court is whether they are, on a true construction, included in the Agreement. More detailed requirements, which are designed to ensure that the Debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

The way it works is this. You look at the Agreement, and see if the Prescribed Terms are clearly there, and have not been mis-stated, and do not need to refer to another document to explain them. The section of the Act that covers this basic issue is s61:

 

Signing of agreement.

 

61.

 

(1) A regulated agreement is not properly executed unless -

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

 

(b) the document embodies all the terms of the agreement, other than implied terms, and

 

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

So, if the Prescribed Terms are not contained within the four corners of the Agreement, then we can move on to the next issue, i.e. the consequences of this omission:

 

Consequences of improper execution.

 

65.

 

(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

 

(2) A retaking of goods or land to which a regulated agreement relates is an enforcement of the agreement.

Right, s61 tells us that if the Prescribed Terms are not contained within the four corners of the Agreement, then the Agreement is not properly executed. We also now know from s65 that it if it's not properly executed, it can only be enforced by a Court.

 

However, if the Agreement was signed before the Consumer Credit Act 2006, then the Court cannot enforce because of s127(3). Notice how that naughty little word contained crops up yet again!

 

Enforcement orders in cases of infringement.

 

127.

 

(1) In the case of an application for an enforcement order under -

 

(a) section 65(1)(improperly executed agreements), or

 

(b) section 105(7)(a) or (b)(improperly executed security instruments), or

 

© section 111(2)(failure to serve copy of notice on surety), or

 

(d) section 124(1) or (2)(taking of negotiable instrument in contravention of section 123),

the court shall dismiss the application if, but (subject to subsections (3) and (4)) only if, it considers it just to do so having regard to -

 

(i) prejudice caused to any person by the contravention in question, and the degree of culpability for it; and

 

(ii) the powers conferred on the court by subsection (2) and sections 135 and 136.

 

(2) If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question.

 

(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).

 

(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if -

 

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought, or

 

(b) section 64(1) was not complied with.

 

(5) Where an enforcement order is made in a case to which subsection (3) applies, the order may direct that the regulated agreement is to have effect as if it did not include a term omitted from the document signed by the debtor or hirer.

I hope this helps.

 

Cheers,

BRW

[robinredbreast]

bump ...?

[ODC]

Excellent work there BRW

[robinredbreast]

Hi Mr BRW ... sorry my bump crossed with your reply !!

 

Exactly what I had thought ... and was just cobbling a letter together referring to this very point, and had copied and pasted s61 (a-c) from the CCA74 itself.

 

I think what they are basically trying to say (without saying if you know what I mean), is that the pres terms are in the t&cs - which they are inferring, without saying, forms part of the agreement documentation.

 

Now the only small ref to another doc is made to at the top of the app, but only in connection with lost and misuse of cards, where it says "see condition 17 above).

 

Do you know in what prescribed manner reference has to be made to additional docs where the pres terms can be found?

 

I'm currently going along the lines of....

 

"Well if the agreement embodies more than the signature page you have sent me, it has to specifically refer to this, with clear links between the pages encompassing the whole agreement - of which the application you have sent me has none.

 

Suffice to say, the agreement you have sent me was at the time of signature, presented and executed as a singular page document."

 

I've already quoted the Hurstanger and FCT case law in my previous correspondence, to which they just gloss over and ignore...

 

Tell me what you think?

 

By the way, thank you so much for the fantastic reply and advice already given ..

 

Robin xxx:)

[robinredbreast]

Hi,

 

This is in respect of my pref account with M&S ... but still M&S so using my existing MS thread ....

 

In dispute due to app form with no terms sent instead of agreement.

 

Had a letter from M&S pre legal recoveries dept beginning of July with threats of their reps calling at my home.

 

Responded with the Doorstepping letter.and will only communicate in writing.

 

Whereby they have now left a msg on my ansa phone saying that I must call pre legal recoveries as a matter of urgency.

 

The acct is still in dispute, as M&S sent me an application form with no prescribed terms in it, but still state enforceable. I have said for it to be enforceable pres terms must be within the agreement, I can't see them, so can they point them out to me.

 

They responses just ignore me, continuing to say that the "information requested" is located in the docs sent - but they won't tell me where (because we know they are trying to use the T&Cs as part of the credit agreement) .. naughty... naughty ....

 

So my last letter asked again for the specific location of the terms so I can exercise my legal right in reviewing them... still waiting for reply on this one.... !!

 

So shall I ring Miss Hampshire of "pre legal recoveries" for pure annoyance reasons ... or just ignore the little lady ... and let them write to me again ??

[robinredbreast]

small bump .....

[robinredbreast]

well pre-legal are now hounding me .. with very insistent messages left from Miss H.

 

They have also sent a replied to my letter saying s61 (b) is irrelevant in this matter, with a simple template "we believe enforceable" letter .. and "no longer in dispute, so our collections activity will now recommence".

 

Can I be sure that if this goes to Court, the fact that there are no prescribed terms in either app in respect of the pref acct or crefit card, theJudge can't enforce?

[almond]

well pre-legal are now hounding me .. with very insistent messages left from Miss H.

 

They have also sent a replied to my letter saying s61 (b) is irrelevant in this matter, with a simple template "we believe enforceable" letter .. and "no longer in dispute, so our collections activity will now recommence".

 

Can I be sure that if this goes to Court, the fact that there are no prescribed terms in either app in respect of the pref acct or crefit card, theJudge can't enforce?

 

i have been hounded by these for about a month but gave up and sent back to m&s , i need another template letter to send tomorrow to tell them i want a copy of contract

anybody got any ideas

[Harrassed09]

subbing

[robinredbreast]

Hi,

Well, the latest update is this ....

My last letter to M&S corrected them on the S61(b) rubbish, following kind help from the lovely members on site ..... and finished with send me a correctly executed CCA, not the pre-contractural application form you're trying to pass off as one ... this is my final response until you adhere to my request etc .. you know how these type of letters go ...

 

Anyway, no reply to this, which is from June, then 24 Sept, Collect Direct sent me a collection letter, so sent them the "bemused letter" as still in dispute ... and wait for it ... M&S have now lodged a default on my credit report .....!!

 

Can't wait to see where this goes next ..... M&S really are little minxs aren't they !!!!

 

Robin x

[heliosfa]

Hi,

Well, the latest update is this ....

My last letter to M&S corrected them on the S61(b) rubbish, following kind help from the lovely members on site ..... and finished with send me a correctly executed CCA, not the pre-contractural application form you're trying to pass off as one ... this is my final response until you adhere to my request etc .. you know how these type of letters go ...

 

Anyway, no reply to this, which is from June, then 24 Sept, Collect Direct sent me a collection letter, so sent them the "bemused letter" as still in dispute ... and wait for it ... M&S have now lodged a default on my credit report .....!!

 

Can't wait to see where this goes next ..... M&S really are little minxs aren't they !!!!

 

Robin x

 

"It's Not Just Finance, It's M&S Finance"

 

Well, that it just a bit naff of them! did they send you a Default Notice?

 

H

[robinredbreast]

I think they have, and I've filed it away, I'll scan it and post it up ...

 

I think from memory it wasn't correct, but I'm no expert, so hopefully I'll get lots of guidance from you guys ...

 

Forgot to add that Pre-Legals have not contacted me since my last letter to them, nor have the dca MS employed to chase .... just this default has now appeared...

 

Robin x:)

[robinredbreast]

Ok... update time.

 

Collect UK have written again ... stating that according to M&S they have fulfilled s78 request etc, that this is not dispute, and my understanding of the law surrounding the unenforceability of this is inaccurate .... !! (That would be that I misunderstand the legal requirements of CCA74 then !!)

 

They say (in a nutshell), if you are using a claims firm, they've given you a load of codswollape that the agreement is unenforceable, none less than you have recieved monies and enjoy the use of the account - so just pay up and give us our money - you have 5 days, and we will not get involved in any more correspondence .... so there..... or we'll give everything we have to the court and you'll be sorry ... by God you'll be sorry missy (followed by their shaking of fist, wagging of finger etc) !!!!

 

Nice to be wanted isn't it !

[ODC]

You could tell them that if they are using a DCA lawyer that they are talking a load of Codswallop. Point them in the direction of S 127 of the CCA.

[robinredbreast]

Thanks for the input ODC - this shall be my very next step ... I'm going to basically send to Collect the letter I sent to MS when I originally told them whats required in a properly exec agreement,and includes the S127 bombshell ..... I will just edit to suit....

 

By the way, MS have defaulted this on my credit record (by means of what looks like a defective notice - keeping meaning to post up), so does that mean that the agreement is terminated, and if so do Collect have to prove that they have been assigned the debt? Or am I now talking a load of codswallope !!!

 

Or, shall I not mention the defective DN and keep that back for a rainy day?

 

Robin ..

[robinredbreast]

OK - today Collect sent me a "thank you for your letter we have put the account on hold whilst we continue our investigations".

 

Which is fine .....

 

Will keep you updated.... theres a similar situ with my pref acct, but won't confuse things ... as both are being dealt with down the normal routes we would use when theres an outstanding dispute going on ......

 

Onwards and upwards eh .... !!!

 

RRB xx

[robinredbreast]

Hi gang,

Just an update ..

 

Collect Direct have been chasing both M&S accts (credit card and pref acct), despite being told about their dispute status, and that in respect of the pref acct the last letter from M&S was to say "our investigations are on going we apologise for delay".

 

Anyway, they as usual ignored all this, and last week they sent a letter on both accts saying that they were going to send a doorstepper out to see me.

 

I of course sent them the doorstepping letter, told them they had been reported to OFT for chasing when knowing in dipsute etc...

 

Anyway, got a letter this AM to say that MS had told them both accts were not in dispute, but that they (Collect D) had referred matters back to MS - with their advices to M&S being that they should take me to Court - Collect D finished in suggesting I get myself a Solicitor...

 

What do make of that lot ??

[ODC]

Collect Direct must have a shed load of these unenforceable alleged debts from M&S

[cupcake68]

Hi Robinredbreast

 

If Collect Direct are also known as CD UK they are chasing me too although I've told them the account is in dispute and why!!

 

Just blocked their number on my home phone but they also send me a text message to my home every day which I can't block!!

 

Good luck!

 

Cupcake

[robinredbreast]

Hi,

 

Yes they try to disguise themselves when telephoning and leaving a msg saying they are CDUK - which sound like a video rental shop to me !!!

 

Anyway, will keep you posted on this one !!