Manxcat2206 v M&S Chargecard

[manxcat2206]

I was thinking of adding the following in as well as the amendment suggested so the full paragraph would read:-

 

I am granting to you a further 21 days to produce a copy of a legible executable agreement. After that I will consider that the above account is closed and that you will no longer pursue the alleged debt. As you are already in breach of the Act due to your continued non-compliance, the account will remain in dispute during this time and in accordance with this, all collection activities must cease forthwith.

 

Does this sound OK?

[citizenB]

Hi manx, yes that is fine. Sadly, I can see letter being as ignored as previous letters.

 

The button has been pressed and they will keep churning out the templated threatograms.

 

Have you sent them this letter in respect of the telephone calls ?

 

http://www.consumerforums.com/resources/templates-library/52-harassment/133-formal-notice-of-telephone-recording

 

HTH:)

[manxcat2206]

That's great, thanks. I do know they'll ignore it, but at least they can't then claim that I didn't explain the account would still be in dispute while I'm waiting for them to try to find a document I can read.

 

I have sent them everything about phone recording, harassment etc but they claim that their 12 or so calls a day are not harassment and that they're within their rights to proceed as they wish. No more nor less than I expected, but one does live in hope that they might eventually employ someone who can actually read!! To be honest, I'm not taking any more of their calls now as I'm getting rather bored with even trying to explain it all to them.

 

Out of interest, is there a standard complaint letter that I can send to Ofcom, TS and OFT about the phone harassment or does the wording for this not have to be standard - I'd hate to disappoint them by failing to complain now I've told them I'm going to.

[citizenB]

I havent seen a template letter in respect of OFCOM, etc, manxcat.

[manxcat2206]

OK, no worries, thanks for confirming. I'll just draft up a general complaint that can be sent to all the necessary people. I have got some experience of writing official complaint letters and responses, so if what I can put together actually gets a positive response, I'll post it up so others can adapt it for their own use.

[manxcat2206]

Well, really, the cheek of this lot. I came home tonight to find a letter:-

 

PLEASE DO NOT IGNORE THIS LETTER

 

Account number: xxxxxxxxxx Arrears: £xx

 

Please act now. Your credit reputation is at risk as we have informed Credit Reference Agencies that your payment has not been made by the due date. This may adversely affect your ability to obtain credit in the future.

 

Contact us on 0845 900 0900. We need to speak to you about your account.

 

Perhaps someone might know about this. I know that you can write to the CRAs to give your side of the story, which then has to be stored alongside the alleged creditor's. Is this worth doing? My understanding is that both pieces of information have to be given to anyone doing a credit check. Thought it might be worth having my reasons for missing payments listed along with theirs? Not that I actually want any credit, but these files get checked for other reasons too.

[IainHL]

Manxcat, certainly you can contact the CRAs and ask for a Notice of Correction to be added to your M&S account. The ease of doing this I guess varies with each CRA and whether or not you subscribe to their paid-up continuous access service. If you are not intending to apply for any credit you might feel it not worth the effort of contacting all 3 to get a NoC added, particularly since M&S will have to remove all trace of the account from your credit report when they finally admit to not having a valid agreement. As we all know, however, that is likely to be some time away yet.

 

The only other thing I am aware of that produces searches of your report are insurance quotations.

[manxcat2206]

Thanks Iain and apologies for the very slow reply - have been away on holiday. No phones, no internet - bliss!!

 

I take your point about the CRAs. Possibly not worth my worrying about at this stage. I already have all the insurance I need and our mortgage has been running for several years now, so shouldn't require a credit check as it's always been paid on time and in full. I guess if it ever came to us needing to move mortgage or whatever, I could always review the situation then.

 

Came back to an interesting reply to my earlier letter about the legibility of the alleged agreement that M&S had sent me - stating that what they have sent me is sufficient in their opinion and they refute all my allegations. Am now tempted to tell them that if they want to finish this, they'll have to take it to court so that the agreement has to be produced due to the illegibility of the document they sent me. Or should I just tell them that I now consider the account closed as they've not supplied the legible copy (although I'll have to wait another few days to do that as they've not had their full 21 yet)?

[manxcat2206]

One more quick question for now, please.

 

The interest rates on the copy they've sent me are very difficult to read. However, the monthly rate is definitely listed as 1.93%. The annual looks like 23.7%, but I guess could conceivably be 25.7% - the copy really is that bad.

 

I make 1.93% monthly as 25.78% APR, which should then be rounded to 25.8%. While I still think this is understated as I'm sure the real rate was more than this and am waiting for my copy statements to check this, if the rate is supposed to read 25.7% would that be OK, or would they have had to round it up as is mathematically correct?

[IainHL]

Came back to an interesting reply to my earlier letter about the legibility of the alleged agreement that M&S had sent me - stating that what they have sent me is sufficient in their opinion and they refute all my allegations. Am now tempted to tell them that if they want to finish this, they'll have to take it to court so that the agreement has to be produced due to the illegibility of the document they sent me. Or should I just tell them that I now consider the account closed as they've not supplied the legible copy (although I'll have to wait another few days to do that as they've not had their full 21 yet)?

 

Manxcat, have they stated that this is their final response? They seem to be doing a lot of refuting recently looking at other M&S threads. The problem with telling them that you consider the account closed is that they won't, and will therefore continue collection activities. So really you do need to invite them to put up or shut up, though I imagine that will take them some time, and you will have to send Collect Direct UK packing more than once before they start court action.

 

One more quick question for now, please.

 

The interest rates on the copy they've sent me are very difficult to read. However, the monthly rate is definitely listed as 1.93%. The annual looks like 23.7%, but I guess could conceivably be 25.7% - the copy really is that bad.

 

I make 1.93% monthly as 25.78% APR, which should then be rounded to 25.8%. While I still think this is understated as I'm sure the real rate was more than this and am waiting for my copy statements to check this, if the rate is supposed to read 25.7% would that be OK, or would they have had to round it up as is mathematically correct?

 

The norm on APRs seems to be truncation rather then proper rounding. I understand (though not sure exactly where in the regulations it is stated) that the margin of error they are allowed between the real APR and the stated APR is -0.1% to +1.0%, so technically what you have deduced from the agreement is within tolerances.

[manxcat2206]

Well, they've said that if I want to take it further, I need to contact the FOS so I guess it is their final response. They also said they'd included an FOS leaflet, but didn't. Fortunately, I already know how to make a complaint to the FOS.

 

Am going to go back to them one more time anyway explaining, again, why an illegible copy isn't good enough. I mean, seriously, if I've had to assume what the APR says because that's how it calculates, then it's just not legible enough as I can't really be sure that I'm matching back to the APR that was listed. And that was one of the more legible areas of the T&C document. Am also going to tell them that I'll be adding a note to my own credit files explaining exactly why they shouldn't be adding anything themselves and why the payments haven't been made. I was going to wait to do this in case I didn't need to in the end, but reckon I might as well just get it done while I'm in letter writing mode.

 

I really don't expect to get a positive response, but when I don't, I'll just sit back and wait for them to either offer me a F&F or try to take it through court. Don't see why I should have to pay fees to take them to court when I can just wait for them to proceed (unless anyone knows a reason why I should make the first move).

 

Can someone confirm for me please what Act they're in breach of if they continue to process personal data when they shouldn't. Is it Data Protection or Consumer Credit or both?

[citizenB]

Manxcat, there is little point making a complaint to the FOS as they have no remit to ajudicate on the enforceability or not of a CCA. That is for the courts to decide.

 

If you are being harrassed by a DCA or creditor where there is an illegible agreement or no agreement at all, then make a complaint to the OFT

 

They will advise that they are unable to intervene on behalf of an individual but they will record your complaint and when there are sufficient in respect of one particular company they will act.

 

You will find a complaint letter you can use... HERE

[manxcat2206]

Well, yes I agree with you there. The FOS don't appear to have been of much help to others on here and, although these companies seem to be keen on us all using the FOS to complain, I hadn't thought it was really within their remit - it's not technically a mis-sale or poor financial advice and is really a legal issue. But I did find it amusing that they couldn't even manage to enclose the leaflet!

 

I will definitely be sending the OFT letter though - thanks for the template link. And I'm going back to M&S anyway to explain that I don't accept their 'belief' that the document is enough because legal fact states that it must be legible. I'm planning to tell them to either send me something legible if they've got it or to go ahead and take it through court if they think they can succeed. Maybe I'm pushing their hand a bit early, but I'm a bit bored with their template letters and having to think of a way of explaining to them using words of only one syllable that they might understand:roll: - a bit difficult when the most important word is agreement. Then I'll sit back and refuse to answer any more correspondence unless they actually come up with anything of any value.

[ajs444]

They will keep on saying that the Agreement they sent is legal?????

FOS are not going to get involved, been that route already.

My papers are now with Collect Direct, so holding them off, but they are too thick to understand what is going on.

Will update my post when further news arrives.

[manxcat2206]

Well they can claim what they want really. When they do finally take it to court - I can see already that this is where it's going as we're now at complete deadlock, I will produce the documents they sent me to prove that they are illegible. And then I'll get to see what they actually hold. Still waiting for my SAR request to be fulfilled too - they've only another few days on that as I know there'll be charges etc going back over a few years as I had this account when hubby was out of work for a bit and did incur quite a few charges at their old higher rate, and the balance isn't that big on this one anyway so charges + interest will bring it right down even if they have got a better copy of the agreement (and assuming it's enforceable).

[IainHL]

Am going to go back to them one more time anyway explaining, again, why an illegible copy isn't good enough.

Oh, someone like me who likes writing back to these organisations after their "final response".

 

I really don't expect to get a positive response, but when I don't, I'll just sit back and wait for them to either offer me a F&F or try to take it through court. Don't see why I should have to pay fees to take them to court when I can just wait for them to proceed (unless anyone knows a reason why I should make the first move).

I would agree with you there. I certainly intend to wait until my various organisations take me to court and then vigourously defend the action, rather than starting the action myself. (With possibly one exception where I might apply for a disclosure order because I think NatWest credit cards don't have an agreement, but I can't get them to say so.) You just have to put up with batting away the DCAs until they decide to come to their senses.

 

On this point does anyone know what has happened to the referral of a select few of the unenforceability claims being referred to the Mercantile(?) Court as a sort of "test case"?

 

Can someone confirm for me please what Act they're in breach of if they continue to process personal data when they shouldn't. Is it Data Protection or Consumer Credit or both?

As far as I am aware it is the Data Protection Act, possibly section 7 or section 10. I would have to go on a hunt through the forum to find the detail on that though. The clue would be in a full "I do not acknowledge any debt to your company" letter.

[manxcat2206]

Thanks for the info. I know what to look for now.

 

I do, indeed, enjoy forcing them to reply again after they've said they've sent their final response. Well, if they're going to keep annoying me with phone calls and letters, then I want to be just as difficult right back. To be honest, I can wait them out quite easily - they and their pet DCA's are an irritation, but I don't find them particularly worrying. Certainly not irritating enough for me to spend money on taking them to court! My mobile phone book now has some very interesting names in it, so I know exactly when they're calling me to ignore them completely if I can't be bothered winding them up.

 

The thing that's really making me laugh with these guys is that they could've avoided all of this. When they wanted to switch everyone onto their credit card, they asked me to switch. I didn't want another credit card at the time, so refused.

 

They asked me every month after that to think about switching so eventually earlier this year, I filled in the credit card app asking for it to be a transfer from the old store card. Now, I'm quite sure that this would have ended up an enforceable agreement.

 

A couple of weeks later, they wrote to me stating that I couldn't have one of their credit cards because they didn't want to extend me any more credit at that time (I didn't want any more credit, I just wanted the slightly better interest rate on the credit card). Two weeks after that, they increased the limit on my store card by another £650!

 

So, the lack of consistency really wound me up. What they seemed to really be saying was I could have more credit, but what I couldn't have was the better terms from the credit card

 

As a result, although I've also now taken on my other card providers, M&S finished up first in the firing line simply because I thought what they were doing was rather unfair business practice given that I'd always paid them (the late payments were years and years ago and were always made, just sometimes a week late - and I'd had a number of limit raises since then) and had been a good customer for about 10 years. And now it's looking more and more likely that they've shot themselves in the foot on this one as at the very least they're going to have to refund every single charge that's been applied to the account - with interest!

[manxcat2206]

Well, it seems that M&S have got themselves well and truly confused over the last few weeks. I have had, in various order, letters stating that:-

 

 

• they've sent everything they've got
  
• they're investigating my complaint
  
• my account is in arrears
  
• they're investigating my complaint
  

 

• AND - the final two, both received on the same day: If I want a copy of my CCA, I must send them £1 and a default notice
  

Have pointed out to them that they had my £1 back in June and that the same person who's now saying they need me to send £1 has been in correspondence with me since July about the useless information they've sent.

 

Also, their default notice said they wouldn't contact me again after 2nd November but, guess what, I'm still getting phone calls!! Not that I'm answering them. And I thought they might actually stop phoning and take whatever action comes next at this point

 

Reckon I've confused them so much with what was, originally, a very simple request for information that they simply don't know now what they need to do next.