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M&S &more court papers received(Scotland) **SUCCESS**

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Hello all...

 

 

complete newbie here who came across this forum recently having just received court summons from M&S (in my wifes name) chasing full payment of credit card that we have been struggling to pay regularly since my small business started being hammered as a result of current economic climate.

I hope some of you guys can help as I intend defending this case and it is all new to me....

 

 

this account was started in 2003 and was initially for an M&S storecard...

some years later though they changed it to a mastercard and changed name to &More.

 

 

Until approximately September/October of last year my/our credit history was exemplary

but hit difficult times and from that period until January I paid them less than the minimum monthly amount..

.last payment made to them was January and they instigated legal proceedings on 6th April.

 

 

To be honest my first thought was actually just to request time to pay,

accept that I will incur a ccj/decree and be done with it

 

 

however I do know the sum claimed for includes a number of late payment and overlimit charges and the only chance I will get to reduce these is to defend this action...

 

 

.on a similar note if there is any chance whatsoever that I can avoid this ccj/decree being made by challenging the validity of the cca

then I am prepared to go for it as I think I have nothing to lose.

 

 

Another piece of info to throw into the equation is that my house is up for sale and has been for 6 months or so...

.I do have some equity (assuming I can sell sometime soon) and it was always our intention to sell and pay most if not all credit cards off

so buying some time by defending this action is also useful at this point.

 

 

today I will complete and return to my local court the form attached to the court papers stating I wish to defend the action

(when I called the clerk of court for advice she advised at this stage that is all that is required of me...

she said I will then get a letter with a schedule showing when defence should be lodged by.

 

 

She also seemed surprised that I was not going to use a solicitor....

does she not realise how hard up I am right now ???)

 

 

My first course of action regarding defence is to immediately ask both M&S (and copy their solicitor) for all info regarding this account...

I have printed off copy letter from the forum asking for copy of cca

(the letter which states request is NOT made pursuant to section 78 of Consumer Credit act as I cannot risk them sending me unsigned copies or application forms etc when I really need all of the proper docs fast)

 

 

I have given them 14 days to send this to me....

is this enough given the fact they are suing me ?

 

 

Do you think that this is right place to start and/or am I missing anything vital in your opinion at this stage ?

 

 

All views/opinions welcome on this matter,

as I said before its new ground for me but my current financial position

(unless things change really soon)

suggests I need to know as much as I can as soon as I can regarding what steps I can legally take to protect my family and keep my home !!

 

 

Thanks all in advance.

 

Sorry should have made it clear that the letter I intend using is the one written and posted on site by pt2537.Thanks pt2537.

 

apologies for long winded story but anyone got any previous experience with M&S or any thoughts/advice on my next steps ? All thoughts welcome...!

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Hi Beetle.....welcome to the CAG forums....I'll move this thread to the Scotland Debt forum, where you should hopefully get some more help / advice....if you haven't had a response in a few days please shout...


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Hi bettle and welcome to cag;

 

you need to send this to the sols:

 

In the XXXX Sheriff Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, I request you to provide me with the information and documents detailed below.

 

I request that the information should be furnished within fourteen days of the receipt of this letter. If you fail to comply, it may hamper proceedings and result in me filing an unnecessary defence or counter claim.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

 

I must advise you that if the information is not forthcoming, it may delay or frustrate the equitable resolution of this matter and result in unnecessary cost for both parties.

 

Yours sincerely,

 

XXXX (type, don't sign).

 

ida x


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Thank you so much idainfife for reading my notes and posting.

..your help is very much appreciated !!!

 

 

I have advised court of my intention to defend this and I have sent by recorded delivery notice of same to their solicitors.

 

 

I will send this letter on monday recorded delivery to them...

am I right in saying that once I get back this info from them it is then a case of examining the validity of the cca and/or the charges they have made on this account?

 

 

Do you have any experience of compiling a defence when this becomes necessary ?

I must admit I am a little nervous about doing so but I am fully prepared to do whatever it takes.thanks again for your input.

 

Ps on a footnote I see you got your charges back from LTSB...well done on that one..

.I am going to challenge them too on this and wondered if when they paid out they caused you hassle by closing your account ?

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Hi Ida

 

On front page heading its a "Form of citation where time to pay directionor time order may be applied for".Page 1 calls it an "Initial Writ" and then the details follow.I will post up full details (need to work out how to do this...I guess I can scan the pages in and attach to my post ?) I will blank out personal info as I am a little wary of what another poster said on this site...we need to be careful of openly discussing too much as we cannot assume the pursuers do not read these posts too !!!Thanks again.Beetle

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yes of course and also delete or round you figures off

 

you can use photobucket to upload your pics/scans to here

 

how much roughly is the claim for?

 

did you use PT's cpr cca? if so it's not any use up here

 

ida x

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Hi Ida

 

I was just about to use PT's cpr cca before I got yours so am using yours (thanks again!!) I will send private message to you re-amount of claim in case "they are watching"!!! and I will post papers with details omitted on the forum.

 

Beetle

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Is this an ordinary cause?

 

ida x


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Hi Ida...yes on page 1 it refers to the paperwork as "Form of notice to be served on defender in ordinary action where time to pay direction or time order may be applied for"

 

Is there some significance in it being "ordinary" ?

 

Beetle

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yes,

 

you would really need a solicitor to defend cause of the way an oridinary actioned is used/worded. and due to the implications and costs if you lost.

Your defense has to be word perfect, a small claim and summary cause a similar and there's room for small erroes etc but not with ordinary causes.

 

i would strongly suggest you approach a lawyer,

 

Ida x


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How's it going?

 

Ida x


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Hello Beetle1234!

 

I regret I have no experience of the Scottish system, but know it is quite a bit different to the one down here south of the wall!

 

But I think you may have a strong case, as M&S almost certainly do not have an Agreement for the Mastercard. All they will have is one for the Store Card...it's not the same thing.

 

M&S made a bit of a mess of that, and rolled out the Mastercards without seeking new Agreements.

 

Second line of attack is to see what the Default Notice looks like, as M&S tended to cock them up as well.

 

Thus, you can look at this from two key stages:

 

(1) They probably did not make the Agreement at the outset. They may not even have an Agreement, which would be Goodnight Ladies for them.

 

(2) They probably cocked up the Termination of the Agreement at the end of it.

 

Either of the above is fatal to their Claim, both together and they'll be paying you money.

 

The key now is to get copies of both the Agreement and the Default Notice ASAP.

 

Turn your home upside down too, and see if you can find any paperwork or letters. You may have a copy of the Default Notice already...and may have a copy of the Store Card Agreement too (long shot, but if you file things, you never know).

 

Read these Threads ASAP:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html#post1837307

 

and...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html#post1707671

 

Although I don't know that you can use CPR in Scotland, but there may be something similar.

 

A good man to contact may be Monty2007, as he is busy with another Card issue in Scotland, so has a good current knowledge of how things work. His is not an M&S Card, but it's a Card, so the basics are the same.

 

I hope this helps.

 

Cheers,

BRW

Edited by banker_rhymes_with
Clarity

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Thanks BRW your advice is helpful and very much appreciated !

 

 

yes I have been discussing things with Monty2007 whose thread I found recently..

.he has been REALLY helpful so far...

..it certainly appears that defending an "ordinary cause" action without legal representation by your side in Scotland is rather daunting but not impossible to do and I am prepared to give it my best shot...

 

 

..like you I believe no cca for mastercard will be produced..

..perhaps for the store card ?

 

 

DN was received in November when account fell into arrears.

 

 

If it helps I can post it up on here (as soon as I get my scanner working as trying to send some info over to Monty2007 at the moment too!) All the best Beetle

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Hello Beetle!

 

Good to hear Monty2007 is helping you, that gives you a head start already.

 

It could be a good idea to Post a copy of your Default Notice. Just edit out your name and address, but please leave any Dates visible, as they are key to working out if the DN is defective.

 

Also, hide your Account Number and any Barcodes that may be visible.

 

Cheers,

BRW

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Hello Beetle!

 

If it was issued in 2008 (can't see the date but I think I can just about make out 2008 ), then the Default Notice is defective.

 

It has not allowed you the 14 clear days that Parliament requires that you must be allowed.

 

They just say...

 

...you must pay the total arrears of £xxx within 14 days of the date of this Notice.
That has not allowed for Postage, so add +2 Working Days if they Posted via 1st Class, or +4 Working Days if they Posted via 2nd Class/Worse (such as TNT Business Post).

 

Plus, they have not stated what, exactly, you have breached, i.e. they have not quoted the Clause in your Terms that you have breached.

 

Finally, I can't see the figures, not that it matters, but your task now is to see if the default sum they say you needed to pay them is accurate or not. Check your Statements, and also see if the Balance at that time included any Unlawful Charges or missold PPI etc.

 

Cheers,

BRW

Edited by banker_rhymes_with
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Hello again Banker

 

It was issued in November 2008.This appears to be a DN for the arrears at that point ....a few hundred quid.We were still making payments to them on an ad hoc basis whenever we could up to january 09 when we paid them £100.In february I received a letter thanking me for that payment and advising account still in arrears.Mid march received two letters dated same day first was final demand for full payment of total balance (sum they are suing for) and second letter was telling me how much arrears were and requesting payment of arrears only !!! No further DN has been issued since the November one.Beetle

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Hello Beetle!

 

OK, did you pay the default sum before their silly deadline, or even by the Statutory Deadline (+14 clear days from Date of Service, that being +2 Working Days/1st Class Post or +4 Working Days/2nd Class Post)?

 

If you did pay them the default sum within the time, that renders even a valid Default Notice as spent. The Act makes that clear at s89, i.e. if you pay then the default is regarded as if it never happened:

 

Compliance with default notice.

 

s89.

 

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.

If so, then they can't rely upon that Default Notice to Terminate the alleged Agreement. They would have needed to issue you with another one before they Terminated (not after).

 

I would start hitting them back with a flurry of CPR requests to see:

 

(1) The M&S MasterCard Agreement...you want a copy of that, and then use CPR 31.14 to ask to make a Physical Inspection of it.

 

(2) The Default Notice.

 

Allow them the minimum time allowed, I think 7 Days, but ask others and/or check, and then, if they fail to produce, consider ramping things up with, say, an N244 Application for them to produce the Agreement and Default Notice or have their Claim struck out.

 

If you did not pay in time, then they can still use that Default Notice but, as it is defective, they appear to be pretty stuffed either way, no matter how you look at it.

 

To add insult to injury for them, if the Agreement is pants too, then the Default Notice is redundant in any event, as there is no Agreement to Default or Terminate. Any funds that went your way can be regarded as being a gift. Here's why:

 

1. In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said, at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2. Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

3. When this case was appealed to the House of Lords on a matter regarding the Human Rights Act (Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40), Lord Nicholls of Birkenhead said:-

 

49 The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan… when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.

Thus, you have two key issues, either of which could win the issue for you, one being the lack of an Agreement, the other being the pooch screw they have made of the Termination.

 

Cheers,

BRW

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Great stuff BRW...the latter applies in my case as I had no funds to pay their demands.I must admit I am looking forward to seeing what if any documentation they can produce...I am also wondering if it will arrive before my defence has to be lodged on 11th May !!!! I am pleased to have found Monty2007 on this forum as he is several steps in front of me in the same process and his advice on presenting a defence etc in Scotland will be invaluable.

As you suggested I am currently up to my eyeballs in statements but reckon I may only have last 12/14 months worth....there are a few places to look for original agreement but not holding out much hope on that one......for ANYONE watching (who like me does not think it is important to keep agreements etc.)let this be a lesson to you....FILE EVERY SCRAP of paper you get from every financial institution you get it from !!! Cheers for now

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we have a draft defence, their writ is very basic and they avoid mentioning that this is a regulated agreement under the CCA 1974 which is interesting.

Anyway we cover this in your defence and pleas-in-law so they can't try to side-step that one.

 

I note that M&S Financial are part of HSBC so read around the HSBC threads to get a feel for their approach, tactics etc.

 

When the defence is received by M&S sols you then have a long period for adjustments, so they can adjust their writ or pleas-in-law and you can do likewise.

 

 

The dates and events are laid out in an ordinary cause action and the next important date is the Rule 22.1 note which forces the Sheriff to accept your Preliminary Pleas and, as with mine, he will probably opt for a legal debate since the key matter is the "agreement" and its enforceability under the CCA 1974.

 

There is no option open to the Sheriff for a "strike-out" in the Scottish process and even if they win the legal debate on any of the points debated you will get a second shot at the Proof or Proof-before-answer (PBA)

- essentially they are the same.

They both involve leading evidence as opposed to the legal debate which is specific although in my case it covers 3 pleas-in-law.

 

Hennesy's book on Scottish Civil Process is a good book to read.

The Scottish process is very different to that in England (no CPR as such), but serving a "motion" is similar in many respects.

 

From what I can see you have a good case,

however (like in my case) it depends on the Sheriff you get on the day and how well you prepare.

The key is the detail, spotting issues with the S78(1) response, the "agreements" and the DN.

 

Great to see that BRW has cast his eye over this one, all excellent points.

 

Let's see what they come back with once you get the defence submitted. M&S make no reference to the DN in their writ, we will include it in the adjustments if they don't and slip it into the Defender's First Inventory of Productions.

 

Regards

 

Monty

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Cheers Monty2007...just in the process of doing the necessary work on the defence doc as suggested so will be in touch in a bit.Beetle

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Subbing, with interest.

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all good? ida x


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Hi beetle,

 

any update

 

ida x


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Hi all....thanks for all interest to date.

 

 

I have received cca and additional legal papers from M&S solicitors..

.need to get good legal opinion on validity before I can update things with you guys.

 

 

Thanks for private messages showing interest too and sincere apologies as I have not been around for a few weeks.

 

 

Back in the saddle and ready toi fight again now !!

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