HSM v M&S Credit Card

[seriously fed up]

Still Surviving's is good advice Megan and I would take it.

IF M&S moved you to &more with a letter suggesting that you get spending and nothing more then they are pretty much stuffed. They issued court papers to me about 18 months ago, but it never got to court - they read the defence and agreed a motion of absolvitor. I wouldnt like to say that no one has had court papers since me (in fact I know some people have had this), but I havent heard anyone losing.

Basically their problem is that the Chargecard (even IF they could produce the original agreement and IF that was compliant) is SO different from &more (can be used anywhere, higher credit limit etc) that they really do need a whole new agreement to be signed. But they didnt bother. In fact it might even be argued that they have committed an offence by sending out credit tokens without being asked by the debtor.

You can find my thread at http://www.consumeractiongroup.co.uk/forum/showthread.php?199747-HELP-Court-Papers-from-M-amp-S/page2&highlight= - this is the middle page - the defence is at toward the bottom.

Just one thing - it was a Scottish case so if you are in England there might be procedural differences - but the logic will be exactly the same

[slick132]

Hi Megan,

 

Please feel free to start your own thread to discuss your case. This avoids hijacking and keeps different cases separate.

 

Hit the NEW THREAD button in the appropriate forum, chose a thread title...........and you're off !

 

[Still_surviving]

M&S (or rather Moorcrofts) have woken up for the first time in five months

 

Received a letter demanding payment proposals within 14 days, else they will be forced to litigate - they also enclosed a photocopy of the letter I received from M&S saying that everything they did regarding the Chargecard to Mastercard switch was fabulously tickety-boo, and only what the OFT told them to do.

 

Not sure if i will even waste a stamp on a reply, but I guess if they want to issue proceedings based on a chargecard application form, then so be it.

[Still_surviving]

Just a quick update - really to do with the PPI side of things I mentioned earlier.

 

After alll this time, they have finally written to confirm that they are upholding my complaint - somewhat hard not to when the application form had self-employed printed on it by them.

 

Whats really miffing me is that they have said 'we will write to you within five weeks telling you how this matter will be settled". FIVE WEEKS! After all the delays thus far. Im really tempted now to insist that this refund be paid back by separate cheque now, and not offset against a credit card debt that is most likely unenforceable.

[Still_surviving]

Well I received an offer of just over £1200 for the PPI (bit short of what I wanted but going to accept it) together with a letter inviting me to offset this refund against the credit card account that is in default.

 

Naturally I said I did not concur with this and want the refund sent to me direct - I await developments

 

I know they will wriggle like mad, but when you think about it, they have admitted being in the wrong, so why should they have any say in how the refund is processed? I realise its not as straight forward as that, but when you think about it, would someone caught at fraud have any say in how any funds were confiscated and repaid?

[slick132]

Hi SS,

 

Out of interest, does the FOS give any guidance on how any agreed refund should be applied.

 

[Still_surviving]

Well...needless to say they are refusing to send me a cheque - saying it is 'their policy' to offset any refunds against other debts.

 

Quite honestly I dont care what their policy is, I need to know what my legal position is. They have admitted to mis-selling and now want to choose how they refund me the money.

 

Slick...were you hinting there was something in the FOS guidelines i should look for? Just wondered about the smiley....

[slick132]

Hi SS,

 

No, there was no secret msg. I use Smileys all the time, often quite randomly.

 

No court action here, so you cannot insist on a direct refund.

 

And no real grounds to take any court action at this stage as they've already agreed to refund an amount you find acceptable. If you took court action, it would hinge solely on the banks refusal to repay direct and a court may find you have insufficient grounds to prove the debt unenforceable.

 

You could therefore end up with no direct refund and costs against you.

 

Have you looked for advice on this in the PPI forum. It may be worth starting a thread to discuss the question of seeking a refund and avoiding the set-off.

 

[Still_surviving]

Thought I would give an update on how things stand with my M&S affairs currently.

 

Firstly I actually WON my battle to get my PPI rebate sent to me directly, by no means other than sending them a copy of my self-assessment tax bill that was due in January. This apparently counts as a priority debt and they were obliged to issue the refund to me

 

Secondly, M&S 'have now asked Credit Security Ltd to take responsibility for your account' and I had a couple of the usual threatograms. Today I received the enclosed letter which has lots of nice upper case, bold type emphasis, which I shall also use when composing my reply to them.

 

 

http://i816.photobucket.com/albums/zz90/Still_surviving/CreditSec230312.jpg

 

As far as Im concerned, nothing has changed insofar as they have only ever sent me an application form copy relating to a priior chargecard, and not the paperwork relating to the mastercard they are claiming is due. Owing to the fact they mention possible legal action, I will also be sending a formal CPUTR 2008 letter.

 

I did Google the recent Santander v Mayhew judgement and it does make interesting reading.

 

SS

[seriously fed up]

sounds like you are on top of this SS. About the only thing I would add is to draw their attention specifically to paragraph 12 of Mayhew which makes crystal clear that if you send someone an unrestricted use credit card you had better send them a new agreement - Regulation 7 of the Consumer Credit (Agreements) Regs 1983 says so. GE never bothered and Santander lost as a result. I cant see any difference between Mayhew and your own case. Even if the other reasons for Santander losing dont apply to you (even the chargecard agreement was defective and they got the default notice wrong) - any one of these would be enough for them to lose. Dont imagine the goons they have set upon you will know about Mayhew (or even if they did that they would care) - but it would be another stick to beat them with if you did point it out to them.

[slick132]

Hi SS and thanks for the update.

 

Well done on getting the direct refund - using the tax liability angle worked well and I'll bear this in mind for other cases.

 

[Abby25]

Just to chip in on this, firstly well done for getting the PPI refunded directly, your angle was clever and well thought out .. well done !!

 

I too am in the store card to credit card club .... they tried all the routes they appear to with yourself ... apart from no pres terms in the store card app sent as a CCA (which they said, the pres terms may be in any sep document they choose (interesting interpretation of the CCA74 I thought !) .)

 

. When questioned why they had sent a (non-compliant) CCA for a store card, when they were attempting to enforce collection on a credit card, they told me the store card was switched to a credit card, and no new CCA was reqd because the OFT told them they didn't need to ..... really .... well thats not quite true as its all over the free press that the OFT publicly flogged them for this action, and made them sent all new transfers on a new CCA ... of course the ones that pre-dated this never ever recd a new CCA for the credit card ...... which was their undoing ...

 

When I raised this in my response letters to them, and again asked for them to direct me to the pres terms within the 4 corners of the agreement, they told me they "were not prepared to answer any questions, and if I was unhappy go to FOS ....... a victory in my eyes (and thats without a bogus DN to fall back on on in court & the new Santander judgement) ..... so I have to agree with whats been said, if you are one of the store to credit card transferees, with no new CCA - Marks know they are stuffed, and once you advise them, that you also know they are stuffed, you'll find the letters and threats very quickly dry up ... and then they will sell the debt on to a poor unsuspecting DCA ... I'm way, way down the line with this (my account sold to Sigma .... poor sods), so if anyone needs any help or comments on what I've expereinced with them, and how I've dealt with it, I'm happy to help ...

 

Abs x

ps - APOLGS FOR NO SPEECH MARKS/BOLD/ICONS .. ETC ... AS FOR SOME REASON IT WON'T LET ME INSERT ANY, AND I ALSO HAVE TO INSERT PARA SPACES MANUALLY ... COULD ONE OF THE MODS CHECK THIS OUT FOR ME, I HAVE REPORTED BEFORE, BUT NO REPLY/REMEDY. AS ITS PRETTY FRUSTRATING WHEN POSTING ....

Edited April 10, 2012 by Abby25

[Still_surviving]

Hi all

 

Just a quick update to mention that I had in the post today a Notice of Assignment saying that my debt had been sold to "Marlin Europe 1 Ltd"

 

Anyone had dealings with these people? A quick google search throws up cases where theyve issued court claims. Perhaps a quick hello letter might be in order, if only to highlight M&S's failure to supply a CCA for my Chargecard etc etc...

[slick132]

Hi SS and how are you doing these days.

 

If you look in the BC forum, you'll see that Marlin have bought a load of a/c's which BC took over from Egg a while back.

 

Another CCA to Marlin may be worth the £1 fee.

 

[fletch70]

A quick letter saying the account is in dispute and mention santander v mayhew

[IainHL]

Hello SS. It seems that M&S (HSBC) have an annual new year sale of old debts! Mine was sold to Lowell about this time last year. Presuming the letter you have is from Marlin and they are inviting you to contact them to come to some arrangement to pay then a letter to them as suggested by Fletch70.

 

You may wish to add a CCA request to that, but the account is already in dispute. I didn't use CCA but instead used the UTCCR question "do you or the OC have a the original signed agreement in your possession?".

[Still_surviving]

Just a quick update and question....

 

I received the latest threatogram from Marlin recently and was interested in their potential use of an unlicensed debt collection agency (see attached link)

 

http://i816.photobucket.com/albums/zz90/Still_surviving/IMG.jpg

 

 

Is this supposed to be some kind of veiled threat, and are they allowed to use such people?

[BRIGADIER2JCS]

Attachment is too small to read!

[seriously fed up]

Looks to me as if there are two things here

 

1. I assume you are in the situation that I was in - you signed up for a Chargecard which you used for some time, and then (2003?) they sent you a Mastercard with nothing to sign for it. Santander v Mayhew simply formalises that this was madness on their part, with a total failure to recognise the requirements of the CCA and what the consequences would be. However, this all only makes the account not enforceable by a court - it doesnt make it go away. But, if they know you are well aware of its unenforceability and that they can huff and puff as much as they want, wouldnt you think they would go bully someone else who might not be quite as well informed as you are? They will try for a bit though
   
2. the threat of an agent calling on you. Easiest way of dealing with this is to send them a letter telling them not to bother, pointing to law of trespass etc. Not sure that they are saying that the alternative agency would be unregistered - just another one along to harass you on something that they wont be able to collect on.
   

If you havent already done it, I would follow fletch70's advice

[Still_surviving]

sfu

 

Hi...yes Ive already sent a letter along those lines a while back. Ive also sent the UTCCR letter separately and await their response...

 

Im really not fussed about them threatening a debt collection visit, or even if one turns up - i was just surprised at the wording of their letter. Guess I was seeing things that werent there.

[fletch70]

I can see no suggestion of an unlicensed collector. If this is a chargecard turned credit just write back referring them to santander v mayhew. Then suggest that you will sue for harassment

[slick132]

The letters makes no unusual or unreasonable threats.

 

See here about doorstep visits - http://www.consumeractiongroup.co.uk/forum/content.php?441-If-you-do-receive-a-doorstep-visit-we-give-these-suggestions-to-Members

 

[Still_surviving]

Very swift response from Marlin confirming they dont hold any information on me and are writing to the original creditor for the documentation.

 

Here we go again, they will send me the same stuff about the old chargecard, and I will write back with the same dispute. Amazing how they can make all their debt collection threats without any actual hard evidence of the debt.

 

Ho hum....await developments I guess

[Old Cogger]

google "Mayhew" court case!

[Still_surviving]

Its okay....im up to speed on that case, and mentioned it in my letter to Marlin

 

I just have little faith that they will take any notice lol. Thank you for the heads-up though.