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

[banker_rhymes_with]

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 April 29, 2009 by banker_rhymes_with
Clarity

[banker_rhymes_with]

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

[banker_rhymes_with]

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 April 30, 2009 by banker_rhymes_with
Smiley Icon Zapp

[banker_rhymes_with]

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

[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

[banker_rhymes_with]

Bargain!

 

Well done.

 

Cheers,

BRW

[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