MS CCA Found

[IdaInFife]

because it shows that they do not want to 'take it any further' and hope that you don't know your rights

[SRR1972]

Hi all

 

Need advice again

 

Got a letter from a DCA today saying that given the M&S application for refers to the CCA act then it doesn't need to have the details on that actual form and that it is still regarding as 1 document. Is that right ?

Also my application form never had the bank details which it says is a requirment for this to be processed should I point out the fact that none of my details are there ?

 

Thanks in advance

 

S

[seriously fed up]

Round spherical objects mate. The most interesting bit of your post is this

"given the M&S application for refers to the CCA act then it doesn't need to have the details on that actual form and that it is still regarding as 1 document."

It is saying two things so. I will deal with the second, more sensible one before going on to the first, which is a total load of nonsense:

 

1. "it is still regarding as 1 document" is basically trying to say that the sig document and the T&Cs they will have sent to you are a single document. The 1974 Act requires that the prescribed terms are "contained" within the signature document. As you know the prescribed terms are NOT on that document that you have been sent. What they are trying to assert is that the sig document and the T&Cs are a single document ("in more than one part" is a phrase they use from time to time) and thus the prescribed terms are contained (as they can be found in the T&Cs) in the sig document, even if not on the sig document (if you follow what I mean). The problem that they (and I am talking here about lenders generally) is that its often very difficult to see how the T&Cs they are presenting COULD be - I mean physically - part of the same document. But the bigger problem that they have is that most lenders (including M&S) photocopied the sig document and then trashed the original (to save storage space), so the best they can often do is to produce a copy of a document with your signature on it, and either a blank application form where one of the pages looks like your sig document; OR just attach a set of T&Cs and say "that's them". Either way they are on shaky ground - certainly shakier than the absolute certainty I expect the letter you got from them implies
   
2. the better bit though is at the beginning - because it refers to the CCA it means that they dont have to have the prescribed terms. This almost beggars belief, even if only its because of the CCA that the prescribed terms do have to be there. I am beginning to find this kind of trash really quite hard to take. OK, write to us to remind us we owe you money, but please dont tell us lies. And what they have told you is a lie, unless this DCA is using kids on work experience to draft out letters. The OFT Guidance on Debt Collection says that it is an unfair practice (see 2.2) "leaving out or presenting information in such a way that it creates a false or misleading impression or exploits debtors' lack of knowledge" If what they have told you doesnt fall under that category, I dont know what does. I dont suppose it will make one bit of difference to your case, but if you raise a complaint to OFT about this, and we all do the same when they present us with this kind of bull, then between us it might start to make a difference.
   

I dont think your bank details will make much odds. In any case, a DCA that can make the kind of statement that we dont need the prescribed terms because we have referred to the CCA in the document, is so wandered that they dont really merit much consideration.

Send them a letter pointing out that the document they have sent doesnt fulfil the requirements of s61 1a, and thus can only be enforced by a court (s65). But as s61 1a has not been complied with, s127 (3) means the court cannot make an enforcement order.

As for the "single document in more than one part" argument, have a look here http://www.consumeractiongroup.co.uk/forum/mbna/227836-mbna-application-form-2.html and in particular post 30 where Vint has some good quotes to fight that one off.

[SRR1972]

Hi SFU

 

Could you post the link for the topic again pls - seems to have got lost

 

Regards

 

S

[seriously fed up]

I think its this one

http://www.consumeractiongroup.co.uk/forum/mbna/227836-mbna-application-form-2.html

and post 30 in particular

[SRR1972]

Hi All

 

Sent a letter to DCA stating I didn't believe that they had a enforcable agreement and used the information about as reason. Just got a reply which basically just says the same as the previous letter they sent.

So question

 

1. Is the common pratice that you go over the same ground again and again and ..... etc etc ?

2. Got to admit I am nervious about the prospect of court - is that a certainity to happen ?

3. They 1 new bit of info in the letter is that the evidence that the agreement is enforcable is because I have used it (which is true) - my view is over the years I have paid back the amount but how does that stand up in court ?

 

S

[seriously fed up]

1. yes

2. no - what the odds are and why/why not is a bit of a mystery. My own view is that the chances are reduced if it looks as if you know your rights, but that doesnt always work

3. nonsense. Issue isnt whether there was lending, but whether they have the documents to make the account enforceable - ie are the prescribed terms on a document that they can show you have signed (s61 1a), if not they the need to go to court (s65), but the court may not issue an order (s127 3) as the signing requirements havent been complied with. In court though, there are cases of judges who dont understand/know the legislation and/or take a moral stance - you borrowed the money now pay it back. But they shouldnt and its often reversed on appeal.

[UnmoderatetheNet]

You have to admire M&S if this is an ex chargecard account the facts of which I don't need to go into and you live in scotland then they are holding a bag of ****e, yet they stilll refuse to accept F&F.

 

It absolutely staggers me the arogance of such companies if I were in there position I would be biting the hand off anyone offering 10%

[SRR1972]

Hi all

 

Can I ask for some advice on the letter attached I plan to seed to Moorcroft was are chasing on behalf of M&S - bit narked cos yet again they ignore what I have said in a previously letter and given me 1 working day to respond - I have already told them I will only communicate in writting but feel they are presurising me to call them - which I aint gonna do.

Haven't run it through spell check and my grammer isnt great but does the letter make sense ?

 

S

 

PS Unmod - afraid its not an old chargecard account but still think I have a case

CAG versions for DCA.doc

[seriously fed up]

Blimey, that is a real blockbuster. Three pages!

First thing - they wont let up. You need to appreciate this and stop hitting the ceiling every time they send out a threatogram.

Second thing, there is much in your lettr,but it reads to me to be more than a bit emotional. Its not going anywhere before Monday, so I would put it away and have another look at it on Sunday night.

They are insisting that the document they have sent you is enforceable at court and would like you to believe that. The advice that you have had here is that at best a documents in more than one piece is at best dodgy for the lender. If you have time, go down your local M&S and lift a copy of their card application pack. Take a look at the application form. You will find that on one side they still ask for your biog details, but on the other side there are all the t&cs (including the prescribed terms) AND your signature. It would be difficult to argue that that is not compliant. The moral of this story is that they KNOW they have a problema and have acted to put it right. They KNOW their previous documentation was not what it should be. But they wont want you knowing that.

[SRR1972]

Thanks SFU - I have amended it a wee bit - I'll nip down to M&S and have a look at the current pack - it would be interesting to see what the new pack looks like

[seriously fed up]

I think you will find it educational - they will say its only "their policy of continuous improvement" - but an interesting improvement nonetheless

[banker_rhymes_with]

Hello SRR1972!

 

I'd re-do the letter, the Section that matters is s61(1), and the two bits you need to quote are s61(1)(a) and s61(1)(b).

 

The Consumer Credit Act 1974

 

Section 61(1)(a) is the important one, because that's the one that makes it clear the Prescribed Terms must be contained within the Agreement.

 

Section 61(1)(b) is the less important one, and simply allows General Terms to be embodied into the Agreement, such as Free M&S Vouchers every time there's a full moon, things like that!

 

The Application Form falls down on s61(1)(a), so cops it on s65 and comes to a complete halt because of s127(3).

 

However, one issue that I don't think has been mentioned yet, is that thing they are claiming is the Agreement, is actually one of their infamous in-store Application Forms.

 

These were bulk-printed, usually via Photocopier, and were used by M&S Financial Services plc employees to hard-sell to Customers as they staggered away from the Tills with bags of shopping...the more bags you had, the faster these reps would swarm around people trying to sell PPI, er, I mean their nasty Cards.

 

Note the bumf at the Top left...

 

...that's there for M&S Financial Services employees to complete, not you!

 

...note the In-Store tick box, ticked!

 

...note the Store Number, completed!

 

...note the Employee Number, completed!

 

So, this was done in-store, and probably completed by someone else while you stood there puffing and panting with several bags of shopping!

 

The rep was probably a temp of some sort, paid by commission for the number of applications they could harvest. I would hazard a guess that if you look closely, you may agree that the hand-writing suggests it was completed quickly.

 

Is it your own hand-writing? I suspect not...but it would depend on the employee. Some completed these for people, others may well have handed people a clipboard and pen.

 

The likelihood of any Prescribed Terms being anywhere nearby, let alone shown to you, would be remote.

 

These were bulk Applications, completed in-store, and invariably rushed.

 

It's also worth knowing that M&S Financial Services plc are owned by HSBC, not M&S, so whilst the logos look familiar, behind it all sits a bank.

 

Do also check the S-A-R and see if they have sent you anything interesting in that, such as Postal Application Terms and Conditions! That would be an interesting one, and a mistake they often make...i.e. they fail to realise it was in-store, and have been known to send people inapplicable Terms in the hope of convincing them the Agreement is enforceable.

 

Lastly, have they sent a s87(1) Default Notice? They are usually flawed. Likewise, have they demanded the full balance and Terminated the Agreement? If so, then you have the full set!

 

I hope this helps.

 

Cheers,

BRW

[SRR1972]

Hi guys

 

BRW - U r breakdown was pretty much how it happened - in fact scarily so.

How do I tell if its postal app t&c's ?

 

1 futher development is the DCA wrote to me on Saturday saying I hadn't contacted them to settle the debt they may recommend it goes to court (which obviously I know about) but then they offered me a monthly payment plan now up until now its been full amount only - so is this a positive sign that they know they are on dodgy grounds ? Or does this happen to everybody ?

 

Regards

 

S

[banker_rhymes_with]

Hello S!

 

How do I tell if its postal app t&c's ?

 

Just take a look at some of the other M&S Threads on CAG, and see what was sent to them, then compare it to what they have sent you.

 

But anything that says things like, after you have completed this Form, send it back to us, or a Heading that suggests it's a mailed Application, then these all give the game away.

 

The DCA should just be sent a bog off letter, such as a CCA Request and a curt note to say this AC is in dispute, do not visit, no not call, and do not write unless they have something new to say that concerns the issues in dispute with M&S.

 

A DCA seldom has anything to say that is worth taking seriously.

 

Cheers,

BRW

[SRR1972]

Hi all

 

Going to send this letter accepting my default and unlawful closure of my account. Can you read this for me and give your opinions please.

 

Regards

 

S

Marks and Spencer default CAG.doc

[UnmoderatetheNet]

personally I wouldn't, hey you wanted an opinion.

 

You are making this far harder for yourself and run the risk of not conveying the RIGHT message.

 

There are perfectly good letters that can be used from the template section, depending on what you want to achieve.

 

I'll post something inbetween the recess.

 

Moorcroft threaten court action but the reality is they do not have the stomach for it.

 

Simple as.

 

I can explain the M&S process for moorcroft but don't have time it sounds like you have one of the last letters they send before it goes to another DCA

[UnmoderatetheNet]

Dear Sir or Madam,

Your Ref xxxxxxxxxxxxxxxxxx

I do not acknowledge any debt to your company or to any company you claim to represent.

Thank you for your letter dated xxxxxxxxx; the content of which has been noted.

 

In particular, I note that you appear to have responded to my legal request under the Consumer Credit Act 1974/2006 by supplying a reconstructed copy of an unsigned Agreement.

 

Under section 77/78(1) of the Consumer Credit Act 1974/2006, you actually have a duty to provide a copy of the executed agreement (if any), any other document referred to in it and any further documents subsequently varying the agreement terms and conditions.

 

As I do not recognise the terms contained within the reconstructed and unsigned Agreement that you have supplied and as it also does not bear my signature, I am therefore unable to confirm it as a true copy of anything pertaining to myself.

 

If you maintain that the reconstruction that you have supplied is in fact a "true copy" of a properly executed Agreement that I am alleged to have signed, then I require you to state this fact in writing. I also require you to confirm in writing that the alleged “true copy” of this Agreement was taken directly from any properly executed original that you hold and if so, the reasons why you decided not to send a "true copy" of the alleged original, properly executed Agreement that you would have needed to create your reconstruction from in the first place.

 

Please note that I will not enter into any further dialogue with your company until such times as the content of this letter has been actioned. I would also advise you that your continued persistance with this matter in the absence of the aforementioned documentation will be vigorously defended and any legal proceedings you may be contemplating will be treated as both unlawful and vexatious.

Yours faithfully,

[SRR1972]

Thanks UnM

[SRR1972]

Hi SFU

 

Just to let you know I've had a look at the new MS application pack and you are right it is completely different - in the new one there is interest rate - schedules etc etc - So it does look like they seen an issue and resolved it as you say sure they'll use some kind of improvement process to justify it. Interesting though

 

S

[SRR1972]

Hi

 

A wee bit advice please

 

Moorcroft have given up and now have a company call Gothia chasing me for the debt. Situation is still haven't seen hide nor hare of my CCA.

 

Gothia have offered me terms and I am tempted just to make this go away but have some questions if somebody can help.

 

1. If I enter into a payment plan does this default remain on my file for the period of time the debt is active or is it like points on your driving licence only there for a set time ?

2. If the account has been default by the OC can a DCA add interest to it ?

3. Has anybody hear of M&S taking this as far as court ?

 

Cheers in advance

 

S

[IdaInFife]

1. default remains there for 6 years from the date of default

2. generally no but it can be if on the original agreement

3 yes there are few on cag

 

but you can use the above to come to an agreement like if they have made you an offer you can accept on the terms the default removed or satisfied etc and no fuirther charges etc

[SRR1972]

Hi folksWee bit advice please I have a new DCA chasing me I sent them then dispute letter and please show me the CCA they have reply asking if I acknowledge the debt and that if I borrowed the money then I should pay back.Daft question but do I write back and say I do acknowledge the debt or not ? RegardsS

[seriously fed up]

I had a phone call to that effect - I broke my own "never speak to them on the phone" rule - where, having told her, "look you dont have an enforceable agreement", I got harangued about taking the money etc.

I didnt go into this with her - I reverted to my never speak to them on the phone rule and then wrote them a letter to say they dont have an enforceable agreement - but essentially when they say this, their argument is based on morality rather than law. It can be influential, if you let it, but the thing to remember is that this is a bank, a commercial organization, you are dealing with. Suppose you had taken out health insurance before going on holiday and unfortunately fell ill. Your illness was a "pre-existing condition" (or perhaps more interestingly a development of this), so would your insurer (which is possibly a bank or a subsidiary) refuse to pay (since you didn't inform them of the pre-existing condition)? You bet they would. A well-known health insurer, once tried to refuse my late sister in law access to treatment for cancer under one of their policies on the grounds that she had MS and it was, therefore, a pre-existing condition.

The morale of this story is that you are dealing with organizations that will manipulate the law to make use of any legal get out they can. Why should you or I be any different? Remember too Bennion's quote (he wrote the CCA 1974) that if the banks couldnt get the basics right - what was being loaned (the credit limit) the cost (rate of interest) and repayment arrangements, and signed by you - then they didnt deserve to get their money back.

So, head your letter "I do not acknowledge any debt to your company", point out that if they cant come up with an enforceable agreement then the account is in dispute (they will never agree to that - but its your position and they cant dictate to you, though they will try).

Btw, they tried to take me to court a couple of years ago and then ran away (if you find my posts, you will find it all there)

Edited July 26, 2011 by seriously fed up

[SRR1972]

Hi all,

 

Hope everybody is good - need more advice pls. The issue with my M&S card keeps rumbling on I keep asking for my CCA they keep passing it on to various DCA's it just goes round and round however I have just had a response to say they would accept a reduced figure of around 30% of the claimed outstanding balance.

If I decide to accept (and I am thinking of it just to get rid of the hassle)

 

1. Can they say you've accepted liability for 30% so therefore you must be accountable for the other 70% ?

2. The letter says "accept partial payment in full and final settlement" so do you think that means they won't sell off the remains to somebody else ?

 

Any thought or views greatfuly recieved

 

S

 

ps Can on of the site team tell me how to donate please (got some PPI claims back and really should pay my dues)