M&S Chargecards - CCAs Received

[clemma]

The "agreement" for the 1992 card is unenforceable as it is just an application form. The terms and conditions are not applicable to you or your agreement as they are post 2006 (shown by the £12 charges) - you can send the dispute letter for this.

 

Also, the 1997 agreement is very difficult to read. I have tried, and I can't seem to see the prescribed terms (Interest Rate, Credit limit, payment information etc.). I would send the dispute letter for this as well.

 

 

Meant to add the dispute letter

 

Dear Sir/Madam

 

I DO NOT ACKNOWLEDGE ANY DEBT

 

ACCOUNT IN DISPUTE

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

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 **DATE** 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 is now in default as of **DATE**.(12+2 days after you sent the CCA request)

 

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 therefore request a copy of your official complaints procedure which you are obliged to supply.

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

 

Yours faithfully,

Edited March 9, 2009 by clemma

[clemma]

See my above post - I forgot to add it (and remembered as an afterthought).....:D

[clemma]

You could add this to the dispute letter above (you may have to jiggle it about a bit)

 

Now im sure you are aware as per Wilson & FCT [2003] All ER (D) 187 among others that if the prescribed terms are not in the agreement then the agreement is rendered unenforceable

 

 

To be honest I cannot tell as its not legible, infact even when blown up on the pc it is not legible and as a consequence I believe that the document fails to comply with Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

 

For your information, I reproduce regulation 2(1) for your reference

 

 

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1)The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

Clearly as the document you have supplied is not easily legible you cannot say that you have discharged your obligations under section 78(1) as the document does not comply with the copy document regs referred to above

Now to quote your own words from paragraph 3 of your letter “this means in effect as long as the terms are clearly shown, the CCA requirements are satisfied” well im sorry but they are not as the second part of this document that you supplied in reply to my CCA request is not clearly legible

 

Now to resolve this matter you can either supply me a copy of my agreement, which is in a legible form where all the terms are clearly stated and the prescribed terms are embodied within the agreement

 

Or alternatively, we can lay the agreement which you have produced in reply to my statutory request pursuant to section 78(1) of the Consumer Credit Act 1974 before the county court and I will request pursuant to section 142(1) of the CCA that the court make an order on the enforceability of that document.

 

However I am sure that the bank would not be keen on this happening as should the court rule that the agreement is not enforceable and you cannot provide a better copy than what you already have then the court would have no other option but to rule the agreement unenforceable