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littleme33

Littleme V M&S Can someone please advise on these....document!!

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Hi all,

 

I have various credit card debt :( My M&S card has a balance of 9.5k, i have an arrangement with them to pay 25.00 per month and they have frozen the interest, i have had this arrangement for a year now,i have CCA'd them and im waiting, .....

 

I used to work for an M&S store and believe me we were not trained financial advisors and we were pestered all of the time to open &more cards for customers as there is big money to be made from HSBC for the store.

 

Its funny i seem to remember a mass training session on the &more and the importance of signing CCA's (3 copies of) in about 2006!!

 

I opened my &more acc. instore in 2003 so i know it wasnt just transferred from a chargecard account, and to my knowledge they up'd and double up'd my limit to £10k, which was my annual salary! (without telling me i must add)

 

What i want to know is after reading many threads and trying to be brave, if they get the hump with me for sending this first letter, will they cancel my arrangement and send me straight to a debt collecting agency???? I have paid this months 25.00, I am a single mum and although the payment arrangement is affordable the balance of account depresses me ALOT!!!!

 

All help appreciated

Thank-you :p

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Hi all, Me again!

 

I have various credit card debt :Cry: My M&S card has a balance of 9.5k, i have an arrangement with them to pay 25.00 per month and they have frozen the interest, i have had this arrangement for a year now,i have CCA'd them and im waiting, .....

 

I used to work for an M&S store and believe me we were not trained financial advisors and we were pestered all of the time to open &more cards for customers as there is big money to be made from HSBC for the store.

 

Its funny i seem to remember a mass training session on the &more and the importance of signing CCA's (3 copies of) in about 2006!!

 

I opened my &more acc. instore in 2003 so i know it wasnt just transferred from a chargecard account, and to my knowledge they up'd and double up'd my limit to £10k, which was my annual salary! (without telling me i must add)

 

What i want to know is after reading many threads and trying to be brave, if they get the hump with me for sending this first letter, will they cancel my arrangement and send me straight to a debt collecting agency???? I have paid this months 25.00, I am a single mum and although the payment arrangement is affordable the balance of account depresses me ALOT!!!!

 

All help appreciated

Thank-you :p

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You cca request is a statutory right to receive the information that is all you said in your letter I would think. They are only likely to get the hump if they haven't got the paperwork which would mean that 14 days after you post the letter - 1st class recorded, you can stop paying then unless and until they stump up compliant paperwork.

 

So, you should be hoping they do get the hump about it really:p.

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Hello littleme33. They really should not do anything to you for just requesting a copy of your agreement under CCA1974 s.78. Especially not if you keep paying the agreed amount under the DMP. If they did try anything funny you should go straight to the OFT with a complaint.

 

Of course, when you find they don't have a properly executed agreement and stop paying them it becomes a whole different ball game.

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Hello all,

 

Just a quick Question its now been 12+2 days since i CCA'd my creditors, and ive heard nothing!

But EGG and M&S have cashed the £1 stat.fee cheque is this right that they cash them anyway??Or am i being abit previous??

The other 2 creditors havent? (i got a family member to write the cheques)

 

Thanks all x :p

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Hello all,

 

Just a quick Question its now been 12+2 days since i CCA'd my creditors, and ive heard nothing!

But EGG and M&S have cashed the £1 stat.fee cheque is this right that they cash them anyway??Or am i being abit previous??

The other 2 creditors havent? (i got a family member to write the cheques)

 

Thanks all x :p

 

Remember its 12+2 working days for them to respond and yes they'll cash them... you know how brassic the banks are at the mo :-)

 

If you are withholding payments they'll procced with the normal collections process, if you are still paying then they'll respond if they have anything in due course.

 

After 12+2 days you are entitled to send the account in dispute letter and cease payment IF YOU WISH but it WILL affect your credit rating and they WILL chase for the money.

 

S.


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Hi,

 

1) No prescribed terms on the document

 

2) Document is actually an application form which, under section 59 of the Consumer Credit Act 1974) is not binding on the debtor in question

 

3) A properly executed agreement is required to enforce the account in court

 

4) There is no link to the terms and conditions - in other words how can they prove they were part of the agreement?

 

Just something to chew over there :-)

 

If this is all they have then they will struggle to gain an enforcement order in my opinion.

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Thanks for that i did doubt it when i saw it!

 

Can anyone point me in the direction of a letter i can reply with please xx

 

:D

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Here's one I sent to Cabot... amend to suit

 

Thank you for your letter dated [insert date] which states you believe you that you have discharged your obligations under the Consumer Credit Act 1974 in particular section 78(1) by enclosing a copy of a credit agreement.

 

I feel I must point out what a consumer credit agreement is. Firstly, to comply with section 61 of the consumer credit act 1974 which by the way refers to the signing of an agreement a document must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed or enforced by a court. In addition this credit agreement will include specific terms relating to permission allowing the performance of any account being relayed to credit reference bureaus under the Data Protection Act 1998. More importantly, for a credit agreement to be in force it must adhere to the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). These regulations set out the form and content of agreements.

 

For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the SI1983/1553. Any document purporting to be a credit agreement without the prescribed terms does not conform to section 60(1) 1974 and therefore cannot be properly executed as described in section 61(1) CCA 1974. For your information, in case you are unsure, the prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: -

 

“A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

(a)Number of repayments;

(b)Amount of repayments;

©Frequency and timing of repayments;

(d)Dates of repayments;

(e)The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.”

 

 

This is justified in court as the correct format and there are plenty of instances in case law which I can draw your attention to which back up this fact. Therefore any document purporting to be a credit agreement must meet the prescribed terms to be valid.

 

Now, drawing your attention to the document you have provided to me, I must point out that nowhere on the form does it describe any prescribed term as mentioned above. In fact the document, despite being far from 100% readable, looks more like an application form for credit rather than a “credit agreement”. If you believe this is an enforceable credit agreement, which I have to believe you do as you think it fulfils your obligations under the Consumer Credit Act 1974, then I challenge you to take me to court to enforce it.

 

Since the document you have provided does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states:

 

127(3) “The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).”

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

I will not refer you to the Office of Fair Trading Debt Collection Practice Guidelines which states:

 

 

“2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment”

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40. Please note your membership with the Credit Services Association requires you to comply with the Office of Fair Trading at ALL times and there is significant basis for complaint should you choose to ignore the following:

 

Since the agreement is unenforceable and both the default notice and record with the credit reference agencies is, as a consequence, non compliant, it would be in everyone’s interest to consider the matter closed and for the debt to be removed. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages as I see fit.

 

I respectfully request a response to this letter in 14 days. I have already sent in a letter under section 10 of the Data Protection Act which you are already in default of. This complaint will be registered with the Information Commissioner with a claim for compensation if no satisfactory response is received within 14 days.

 

Yours faithfully,

 

 

[name]

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Thanks for that i will send in the morning, what was the outcome for you? or is it still ongoing?

 

Regards

Littleme:oops:

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Thanks for that i will send in the morning, what was the outcome for you? or is it still ongoing?

 

Regards

Littleme:oops:

 

They acknowledged the debt was unenforceable in court but still existed in principle and could therefor record data with the credit reference agencies. If they didn't have ANY signed agreement then this wouldn't apply... they would just have to remove the record full stop.

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Please see my last thread here for letter M&S have sent me can anyone help with a reply?? Thank-you xx

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best to post on that thread then or atleast post a link here..................

 

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Hello littleme33!

 

The document they sent you is an In-Store Application Form. Note the first section that says FOR OFFICE USE ONLY and note that the Store Number and Employee Number details have been completed!

 

I bet this was something a pushy Rep persuaded you to go for as you struggled away from the Check-Out Counter with several bags of shopping?

 

They would watch for people with, say, ten or twenty bags, and from that, deduce that you are ripe for the plucking. You can clearly afford one of their nasty Cards, so an In-Store Rep would slither up to you and tell you a load of bull about their nasty card!

 

I bet the Application Form was completed by them? i.e. with you standing next to them, and they asked you questions?

 

I bet the Application Form stayed stuck to their Clip-Board?

 

I bet the back was blank? Not that they offered you the chance to look?

 

I bet if they even mentioned Terms, they were 20 Application Forms down their Clip-Board, and you never even had a chance to look at them?

 

Yes?

 

Well, then this is just an Application Form, devoid of any Prescribed Terms, and utterly unenforceable because it is dated 2003, and so covered by The Consumer Credit Act 1974, meaning that s127(3) applies.

 

As vjohn82 says, this piece of nonsense is void as an Agreement via s59, because it can never become an Agreement if it does not already contain the Prescribed Terms before you signed it.

 

Note that word contained. Lock in to that.

 

Take a look at the above link I have provided, and click on s61 and, when there, take a very good look at s61(1)(a). See if you can spot the difference between that and s61(1)(b)!

 

OK, now lets look at the latest nonsense from M&S...

 

Ah, what a surprise, which section do you think M&S are stating? Yep, s61(1)(b), the one that relates to general Terms, and says they can be embodied from somewhere else.

 

They can indeed.

 

However, what M&S are neglecting to mention, is the Prescribed Terms cannot be embodied into the Agreement from somewhere else, they must be contained. By that, it means contained within the four corners of the Agreement. At worst, on the back, but not to be found in another document, and most certainly not embodied into the Agreement from another document.

 

M&S are trying to be clever, and are hoping you will be fooled by this. What they say is true until they get to the bit where they say...

 

...believe that your agreement is legally enforceable...

 

At that point it all goes pear-shaped for them, and a wheel comes off!

 

s61(a)(b) and s189(4) of the Act does not help them to turn the Application Form into a properly executed Regulated Credit Card Agreement.

 

The absolute minimum they need is a piece of paper, signed by you, that contains the Prescribed Terms. Unless they have such a document, then they are stuffed.

 

The Application Form falls foul of s61(1)(a) because the Prescribed Terms are missing. In that case, s65 says it is improperly executed, and in that case, go straight to s127(3) which says a Court is precluded from making an enforcement order.

 

Game over if the In-Store Application Form is all they have.

 

I do hope this helps.

 

Cheers,

BRW

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hello, the document you have is an application compliant with sec 51, and therefore void under sec59, therefore there has never been an agreement, but further to that if at any point they have increased your credit limit and not sent you an agreement to sign then they are in breach of contract if they were to try and enforce, furthermore if they had increased your limit and then on the issue of your next card under sec 85 without supplying the original agreement they cannot enforce your agreement

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Hi,

And thank-you Banker and Newbloke, your advice is second to none thank-you :)

Just to pick your brains abit more do you think i should reply? if so can you tell me what to reply?...i am quite literate really;) but don't want to write the wrong thing you understand! or shall i just not do anything and wait for M&S to threaten and pass me over to the DCA??

Also shall i SAR them i seem to remember them ringing me and selling me PPI even though i didnt sign and return the form!

 

Thank-you x

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just write to them, tell them the alleged agreement was void from the moment you signed it as it purports to bind you to enter but leaves them the option of not doing so, subject to credit checks, also ask them for copies of all notices of variation to be supplied, and all modifying agreements, as far as dca goes, never speak on the phone never answer security questions, let me know what happens next.

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Hello and thank-you for your reply,

Can i be really cheeky and ask you to just wroughly draft something for me i could send? I just don't want to get it round my neck what i am trying to say!! Sorry to be sooo cheeky:-)

 

Thank-you for your time,

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dear sir/madam i write with reference to account no..........

i feel i need to inform you of several important fact relating to your response to my sec 78 request.

1. the document supplied was an application compliant with sec 51.

2. the aforementioned document was therefore void as an agreement under sec 59.

3 . should you insist on persuing me for this alleged debt then my defense will be the following, your companies total non compliance with the consumer credit act part 5 in its entirety.i.e. sec 55(duty to disclose information prior to making of an agreement,sec 60and 61 non existence of regulated agreement compliant with si 1983/1553, 62,failure to supply copy of unexecuted agreement,sec63 failure to supply copy of executed agreement,sec64 failure to supply cancellation rights,sec 78 failure to supply executed agreement compliant with si 1983/1553, sec 82 failure in your duty to modify the alleged agreement correctly, sec 85 failure to supply original agreement(had you got one) on issue of new card where alleged agreement modified as per si 1983/1557 sec 11(g).

fact non compliance sec 78... unenforceable at law

fact non compliance sec 85 ... unsenforceable at law.

cease and desist.

hope that helps, stick to your guns and dont back down.

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This may be worth drawing to M&S' attention!

 

BBC News - Lenders warned not to mislead customers over debts

 

They know s61(1)(b) will not cut the mustard, so they need to stop messing around by pretending it helps them out when they are otherwise wholly stuffed because of s61(1)(a), s65 and good old s127(3).

 

If parliament had any backbone, it would re-introduce s127(3) and give the 1974 Act its fangs and manhood back.

 

Cheers,

BRW

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