M&S ordinary action court papers received - old storecard now credit card **SUCCESS**

[banker_rhymes_with]

Hello Beetle1234!

 

Many thanks for the PM, have now seen the DN and Application Form etc.

 

The Application Form makes no mention of any Terms being overleaf. The only mention of Terms is in the Signature Box, i.e. you agree to be bound by them, but it does not say where they are.

 

So, nothing on this that I can see that even mentions anything being overleaf. I've read the Data Policy, and that is just blabbing on about Data Protection issues...no mention in there of any Terms...i.e. Agreement Prescribed Terms that must be contained within the four corners of a Regulated Credit Card Agreement if it is to stand any chance of being properly executed upon the Debtor's signature.

 

At face value, this is just an Application Form, and there's nothing that I can see that would turn it into an enforceable Agreement.

 

PPI

 

Note they have said:

 

We strongly recommend you take cover by ticking the box [-] and signing below.

Check out the PPI Forums, but that may well open up a can of worms for them, as they are very clearly pushing your Wife to take out PPI. That suggests they needed to have taken other steps to make sure they made sure the Contract of Insurance was correctly underwritten.

 

The Default Notice

 

Excellent. That was sent in 2008, so you had to be given 14 clear days.

 

They claim it was dated 29/11/2008 (a Saturday).

 

They then say you must remedy the default:

 

...within 14 days of the date of this Notice

Oops! That cannot possibly give you 14 clear days, so was defective the moment they elected to Post it.

 

They did not allow for Postage.

 

1st Class Post = 2 Working Days from Date of Posting.

 

2nd Class Post = 4 Working Days from Date of Posting.

 

Date of Service, i.e. the key Date that starts the 14 clear day clock ticking is therefore:

 

1st Class Post Date of Service = Tuesday 2nd December 2008.

 

2nd Class Post Date of Service = Thursday 4th December 2008.

 

The Statutory Deadline for each type of Posting would be:

 

1st Class Post Statutory Deadline = Tuesday 16th December 2008.

 

2nd Class Post Statutory Deadline = Thursday 18th December 2008.

 

If they can prove they sent it 1st Class Post, then they are still buggered.

 

If they can't prove they sent it 1st Class Post, then 2nd Class Post must be assumed instead, that's also assuming they can even prove anything was actually sent, and they are even more buggered.

 

I am aware you have the original, which will sink them if they try to produce anything else that is more valid!

 

If they have since Terminated the alleged Agreement, then they cannot now issue a valid Default Notice, as the Agreement has ended. If they demanded the full balance, i.e. sums that were not actually due at that time, then that is Termination, as is anything that they would need the benefits of s87 to do.

 

The default Sum

 

If the default sum on the DN includes mis-sold PPI, and also unlawful charges, then that sum cannot be accurate.

 

A Default Notice must be accurate in every respect, see:

 

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998 )

 

Note that Case is on the basis that a DN must be accurate, that is the key, not that the default sum was not accurate. People tend to think that is all it says. It does not, the key is overall accuracy, not just the default sum.

 

In summary

 

I think you have them on two very key issues:

 

(1) What Agreement?

 

It's an Application Form with no Prescribed Terms, so void via s59. It cannot be regarded as an Agreement.

 

The Court is therefore precluded from Enforcement because of s61(1)(a), s65 and s127(3).

 

No Prescribed Terms = does not comply with s61(1)(a). That makes it improperly executed.

 

Improperly Executed = can only be enforced by a Court because of s65.

 

Enforcement not possible if there are no Prescribed Terms = because of s127(3) makes it clear that unless a document exists that contains the Prescribed Terms and is signed by the Debtor, then the Court cannot enforce if the Agreement was made before CCA 2006.

 

(2) The Default Notice

 

This is defective. It has failed to allow 14 clear days. Full stop.

 

There is also doubt they even sent a Default Notice. Make them prove it. Or at least make them prove how/when they sent it.

 

Is the default sum accurate? PPI/Charges etc.

 

Did they state Terms you have breached that are present in the Agreement Terms...talking of Agreement! Where is the Agreement, which Terms applied from the outset? None are mentioned in the Application Form.

 

Thus, they have no right of action: there's no sign of a properly executed Regulated Credit Card Agreement and, because of the defective Default Notice and Termination, they are in no position to enjoy the benefits of s87.

 

The Case should be thrown out!

 

But do follow Monty2007's advice, as I think he has covered all of these same issues already when fighting another bunch of bankers!

 

I hope this helps.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Beetle1234!

 

Many thanks for the message.

 

Most of what I have now seen is standard M&S Left Hand not knowing what the M&S Right Hand is doing...it's mostly automated rubbish.

 

One thing I need to stress is the Default Notice 14 clear days is a fixed time requirement that Parliament insist a Debtor must be allowed by the Notice.

 

However, the key is that the Default Notice must state this, and by that I mean the bit of paper.

 

Don't get too bogged down thinking about what was, or was not done in 14 days, that is almost irrelevant.

 

Think of it as a Marriage Certificate...that must state the Date of Marriage accurately. If it does not, then it's a defective Marriage Certificate.

 

Same goes for the Default Notice...that must allow you 14 clear days. If it does not, then the bit of paper is defective.

 

They need that bit of paper to allow them to enjoy the benefits of s87.

 

It does not matter if they wait 14 days, 16 days, 28 days...if they go ahead and do the things that s87 would allow them to do as if they had a valid Default Notice first, then they run into problems when it comes to light that the Default Notice was actually defective.

 

It's their passport to joy and reward. But if they don't organise the passport, they blow their rights to joy and reward!

 

I would make sure you do lodge your own Default Notice with the Court, it's not something that you should hold back, or else you may risk it not being allowed as evidence when the time comes.

 

The fact that the original one you have differs from the stab in the dark one they have generated from thin air, rather shows they do not know what they sent. This will make them look bad at best, and clueless at worst. Either way, it won't look good for them!

 

I would also now get a Counter-Claim ready straight away, and go for the refund of PPI and any unlawful charges. That will quantify the money they owed, and that will come in handy to show that the Default Notice default sum was inaccurate, i.e. further adding to their Default Notice misery.

 

I think you are going about it the right way. The Agreement is pants, so you should make sure you mention that you would like the Court to declare it unenforceable via s142. Slip that in, so that if/when the Court agrees the Application Form is not an Agreement, then in the absence of one, then you can ask the Court to use its powers under s142 and nail them once and for all.

 

After the Agreement, you need to bang home the Default Notice and Termination issue, and show how they could not even get that right either...this was 2008 remember, so it was not like they have not had time to get the hang of it!

 

Lastly, Counter-Claim the mis-sold PPI and any Unlawful Charges, and get that in ASAP.

 

Do also consider adding a Counter-Claim for any Harassment plus another element to claim for damage to financial reputation if M&S have added adverse Data when not in possession of an Agreement that entitled them to interfere with Data.

 

For financial damage see:

 

Kpohraror v Woolwich Building Society (don't have a link for that will update if I can find one).

 

And...

 

RICHARD DURKIN v. DGS RETAIL LIMITED+HFC BANK PLC, 26 March 2008, Sheriff J K Tierney

 

I'd at least add something in writing to get the Court to force M&S to delete any adverse Data.

 

I hope this helps.

 

Cheers,

BRW

[beetle1234]

Update on this one !

 

 

After submitting my defence to M&S writ received (ably assisted by Monty2007 and additional help and support from Banker Rhymes With !)

my wife and I attended first court hearing in early July..

 

 

.this was an options meeting and it was my intention to request continuation for 4 weeks as Banker had supplied me with some info day before regarding M&S default notice received and pointed out this was invalid on several fronts...

 

 

.in addition M&S had only produced an application form for their card which bore no resemblance to an enforceable cca.

 

 

In court I was beaten to the punch line as M&S sols actually requested continuance as some "developments" had recently come to their attention ?

Sheriff asked if we had any objection to this and I responded with "No your honour"

 

 

These were to be the only words I ever used in court as following day letter received from solicitors stating that

"whilst they fully believe they have a strong case against us blah blah blah they do not want to proceed with lengthy and costly legal case so would we agree to no costs on either side, a legal ruling in our favour and say no more about it ?

After several seconds we reluctantly agreed.

 

 

Just received court letter confirming the above and whilst I still have a bit of a fight on my hands to get them to remove all adverse credit reported during this matter

 

 

I am happy in the knowledge that I have legal judgement in my favour to assist in this respect.

So once again it has been proven that if you fight...

.you just might WIN !!!

 

 

I sound like I am collecting an award when I say that none of this would have been remotely possible without the support of BRW ,Idainfife and particularly Monty2007...

 

 

I found this forum in the worst possible way when I was completely stressed out about this and other credit card debts and I count myself really lucky to have done so...

 

 

.so don't lose hope folks if you are in a similar position.From a personal point of view whilst I do not have the level of knowledge that some of the guys on here have if I can help anyone fight their corner I will be only too happy to help

 

 

.Cheers everyone!

[IdaInFife]

congrats Beetle

 

Ida x

[beetle1234]

Thanks Ida....I appreciate your kind words and your assistance.

[ajs444]

Nice one Beetle!!!!!!

[banker_rhymes_with]

Bargain!

 

Well done.

 

Cheers,

BRW

[Monty2007]

Superb!

[citizenB]

Oh well done. I have amended your title to reflect your success.

 

 

Have also moved you to the legal success forums.

[ODC]

Im really surprised at Marksies giving up on this. They have left the door wide open for thousands of 'customers' who were issued with a Credit Card to replace their old chargecards without even requesting one and therefore NO VALID CCA is in place. This could have serious ramifications for the And More Credit Card

[beetle1234]

Im really surprised at Marksies giving up on this. They have left the door wide open for thousands of 'customers' who were issued with a Credit Card to replace their old chargecards without even requesting one and therefore NO VALID CCA is in place. This could have serious ramifications for the And More Credit Card

 

Absolutely correct !! And needless to say we are all going to lose lots of sleep about the fact that they are facing such serious ramifications...NOT! Now where did I leave that champagne glass ?

[ajs444]

Where did Beetle1234's thread go concerning M&S? and ultimate victory?

[banker_rhymes_with]

Where did Beetle1234's thread go concerning M&S? and ultimate victory?

Probably had to sign a gagging order so, it had to go. Shame, but that is sometimes what happens.

 

Remember, the banks have deep pockets and can always buy secrecy when they don't win. It's their final trump card. With limitlessly deep number-money pockets, they can buy what they want when defeat is peering straight at them.

 

It's a shame there is no record of how many times they have done this, because the picture that would emerge would be very interesting.

 

They seldom allow an outright victory in Court...Mrs Wilson taught them why that is to be avoided, at all costs!

 

Cheers,

BRW

[Monty2007]

I think BRW is correct.

 

Gagging orders are terrible things but the banks don't like sites like CAG - they would rather bully, intimate then sink you in legal process knowing that you wont have a clue and possibly can't afford legal representation. They win 99.9% of these cases that way...........

[beetle1234]

Hi Guys (and ladies too) Beetle has not been gagged.

..I am here but I believe one of the site moderators moved my victory post to a different thread...

..or at least I hope he was a moderator and not an M&S infiltrator with hacking experience ?

 

 

SFU is correct in his description of the M&S approach.

...thanks to perseverance and with much assistance from previously mentioned members on this forum SFU and I were both succesful defending cases they forced us to defend through court action so in that sense these are reactive victories ..

 

 

.I have now started my own (pro-active) personal quest to hunt down most of my remaining card issuers and make them squirm a bit before (hopefully) enjoying similar successes (not planning on doing it with them all as lets face it there are times when we all need credit cards ?)

 

 

On a slightly different subject though I had a conversation with a guy on friday who works within the credit/debt management industry who was talking about people like SFU and myself..

 

 

..currently elated but if you had asked me what my chances were of ever getting another credit card from M&S I would have laughed my socks off as we are surely in their big BLACK book now ?

 

 

On the contrary he advised..

..assuming you go through the time and effort to wipe your existing agreements/debts off they will often then re-issue invitation to you to re-apply as this time around they know that their new (post 2007) agreements are legally enforceable ! And lets face it how do the credit card co's make profit ?

 

 

By issuing cards and enjoying the interest/payments we give back. Crazy World ! Final point....Went into M&S store at the weekend and paid cash for a meal for two....It was the BEST meal I think we have ever eaten ! Cheers for now.

[beetle1234]

I think BRW is correct.

 

Gagging orders are terrible things but the banks don't like sites like CAG - they would rather bully, intimate then sink you in legal process knowing that you wont have a clue and possibly can't afford legal representation. They win 99.9% of these cases that way...........

 

Yes they blooming well are Monty

[cleo4patra]

Absolutely correct !! And needless to say we are all going to lose lots of sleep about the fact that they are facing such serious ramifications...NOT! Now where did I leave that champagne glass ?

Incredible story - and what a heartwarming one - I myself am having problems with M & S - just sent Rockwell DCA packing and am awaiting the next development.

[beetle1234]

cleo4patra....have you sent request for copy of agreement yet ? When you do please post it up for us to view when you do...if you decide to fight them I (and many others from this site) will be more than happy to assist wherever we can....they are a real shower,expert in the art of harassment and creating fear and anxiety....stay positive and keep us in touch with any developments.

[FlyboyAgain]

Excellent news! Hope for us all. Just goes to prove that they are prepared to go right to the line before bottling it. Why bother, is the question begged? Why waste the court's time? And yours?

 

Good news, this sunny morning.

Edited August 5, 2009 by FlyboyAgain
additions

[angel_1]

Hiya beetle1234

 

very well done, ive come across your thread today and am subbing, and i may well take up your offer for a little friendly support in anyway you can please

 

will post up my thread for you to have a look at when you can - here it is below link

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/214191-hsbc-solicitors-northampton-claim.html

 

 

and i totally agree with you, coming across cag i too am so thankful and each day i learn something new

 

thank you for posting up your journey for others like me to learn from and be inspired from

 

have a fun day laters angel x

[beetle1234]

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...!