M&S money Credit Card CCA Problems

[seriously fed up]

[EOS-5D]

Hi All,

 

Just got a general question for you.

 

Can a creditor issue 2 default notices on the same account? It hasnt happened yet, but I just wondered what the implications are (if any) if it does?

 

Usually, the timescales on DN's are 14 days. Does this mean that they expire after 14 days and the creditor can then decide what to do next?

 

 

Many Thanks

 

 

Simon

[citizenB]

 

 

Simon,

 

Default notices are a statutory requirement (although some solicitors are trying to get round this)

 

They need to be accurate, ask only for arrears that are due at the time, be in the prescribed format and allow a clear 14 days to remedy. So penalty charges should not be included in the sum requested as they arent techinically sums due.

 

They must build into their timescale an allowance for mailing. 2 working days for 1st class and 4 working days for 2nd class post. Always, always keep the envelope.

 

So if say the date on a DN is a Friday or the Thursday before a Bank Holiday then the DN could NOT have been in the postal system. So you start counting from the Monday or Tuesday if it is a bank holiday.

 

If you remedy the Default notice within the remedy date, they can issue another DN. If you dont and at a later date they demand the full amount due, especially on the back of a faulty DN then no they cannot or should not be allowed to issue another one.

 

Once they have demanded the full amount, it is accepted that they no longer believe the agreement endures so how can they issue a default notice on something that doesnt exist ?

 

There are a couple of good DN threads,

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

There is a link to a further discussion in the one above. Also, seek out posts made by the following on the subject.

 

banker_rhymes_with

diddydicky

vint1954

 

All good stuff

[EOS-5D]

Hi Again one and all,

 

I did what SFU suggested and asked M&S what a judge would make of the agreement and inparticular the relationship between the agreement and S61(1)(a) & S59 of the CCA.

 

Of course they didnt answer these questions. In their reply (attached), they said they're NOT obliged to answer my letter point by point!!!!!!

 

I am not suprised but a little disapointed.

 

As Ive told them I am not going to answer any of their letters anymore, lets see what they do next.

 

 

Kind Regards

 

EOS-5D

M&S CCA REPLY 17.pdf

[seriously fed up]

equivalent of a little child stamping their foot imo. Yes lets see what they do next.

My guess is a DCA

[IainHL]

What an arrogant and useless letter.

 

If, as SFU reckons, they set various DCAs on you (for that seems to be their way) I suggest you should send a single letter, along with a copy of your last letter to M&S, telling them to refer the account back to M&S and that you will not respond to any further letters from them.

Edited July 19, 2010 by IainHL
"their" not "there"!

[citizenB]

Hi Again one and all,

 

I did what SFU suggested and asked M&S what a judge would make of the agreement and inparticular the relationship between the agreement and S61(1)(a) & S59 of the CCA.

 

Of course they didnt answer these questions. In their reply (attached), they said they're NOT obliged to answer my letter point by point!!!!!!

 

I am not suprised but a little disapointed.

 

As Ive told them I am not going to answer any of their letters anymore, lets see what they do next.

 

 

Kind Regards

 

EOS-5D

 

 

Oh dear, have they chucked their dummy out the pram ?

 

So they dont have to answer your letter (complaint) point by point dont they.

 

I wonder if that is the type of arrogant carp they will say to the DJ, should they carry out their threat of litigation.

[EOS-5D]

Thank you for your replies.

 

Im very ready if they go down the dca route, I've already drafted my letter to them.

 

If it goes as far as court I am equally as ready. Ive kept all of their mail as a good cagger should and there's some beauties in there. Such as the good Ms Ellett saying that M&S have never employed reps instore to sell their financial products, despite my alleged agreement form having a store number & employee number. ummmmmm

 

seriously fed up said:

equivalent of a little child stamping their foot imo. Yes lets see what they do next.

My guess is a DCA

 

Spot on SFU. Got my very 1st DCA letter this morning from Rockwell which of course is attached.

 

They are asking for the full balance owing. I havent had a DF and Termination notice yet, so shouldnt they be asking me for the arrears?

 

I'll get a letter off to them today as I dont really want them calling me.

 

Regards

 

EOS-5D

Rockwell Threatogram1.pdf

[SRR1972]

Hi EOS and SFU

 

Just to say I am at the same place its just a cause of round and round the merry go round

 

Did get a werid one from Westcott today saying we need a payment plan you can afford and keep up - so 5p a week for the next 2000 years that ok?

 

S

[EOS-5D]

Hi Everyone,

 

After having a month or so break from hearing from M&S or Rockwell, I have had letters from both of them this morning.

 

The M&S one was a copy of my "application form/agreement" and a covering letter saying that they have also sent the same to Rockwell.

 

The Rockwell letter comprised of a copy of the M&S letter, a copy of the "application form/agreement" and a compliment slip saying if they dont hear from me within 10 days, "further revovery action will continue".

 

I'll send them another letter stating the alleged account does not comply with the CCA.

 

 

Do any of you think that there is anything else I should put in the letter.

 

 

Kind Regards

 

EOS-5D

[seriously fed up]

Same comment as i made at 1st August - a chargecard agreement for an &more account is about as much use as a chocolate fireguard.

**** and wind, I would suggest.

[citizenB]

SFU and EOS, I have moved prettyprincesscharlie to her own thread now which is

http://www.consumeractiongroup.co.uk/forum/showthread.php?274640-prettyprincesscharlie-and-M-S

[EOS-5D]

Hi Everyone,

 

Further to my lovely letter to Rockwell asking them to return the file to M&S ASAP, I have this morning recieved the attached letter from Debbie Hughes in the Customer Claims Team, saying that the alleged agreement is enforceable and that they can call us up to 4 times a day, as long as they only make contact once.

 

Yet again, M&S have mentioned S61(1)(b) and overlooked S61(1)(a) which could be a little harmful to them.

 

Could someone please have a look at the letter and see if they are talking bunkum or not.

 

Kind Regards

 

EOS-5D

M&S reply 12.pdf

M&S reply 12b.pdf

Edited September 20, 2010 by EOS-5D

[seriously fed up]

Its quite a skillful letter, as there isnt anything in it that is actually wrong. Their problem is that they dont tell the whole story. To see this, lets look at s61 in its entirety.

"61.—(1) A regulated agreement is not properly executed unless (a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and (b) the document embodies all the terms of the agreement, other than implied terms, and © the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible."

I dont think, from what I recall of your thread, have to bother too much with © and whether its legible. They say that according to s61 (b) that the signed agreement should embody all the terms of the agreement other than the implied ones. If you look at (b) you will see that this is broadly speaking true. But what they miss out on - quite deliberately I would guess - is section (a) which does not require the prescribed terms to be merely "embodied" but actually "contained" ON the sig page. There are a number of threads where this is the issue - for instance http://www.consumeractiongroup.co.uk/forum/showthread.php?179069-Stebiz-vs.-Cabot-***WON-ON-APPEAL-***/page4. To quote Peter Bard

" It seems a few creditors are using section 61(b) of the act to argue that the prescribed terms can be "embodied within" an agreement (ie elswhere, as long as expessly mentioned), in fact the prescribed terms are to be contained within the agreement as referred to in section 61(a), section 61(b) refers to other terms.

 

The term "contained" as in 61(a) and SI 1983/1553 refers to the terms as prescribed by section 60, and specifically to those as defined in schedule 6 of the SI.This means that means they should be within the document and cannot be in another one(even if experessly refferred to). This is the position taken by Goode and is generally accepted."

Another source would be HHJ Langan in BoS v Mitchell who says "The key words in section 61(1)(a) are the reference to a “document” “itself containing all the prescribed terms and conforming to the regulations under section 60(1)”. This language is clear and specific and ensures that mere reference

to terms contained in another document will not suffice. The document must contain the prescribed terms just as the signed document referred to in section 127(3), which might save the day, must however contain the prescribed terms."

In other words that they dont refer to 1a at all is, as you observe yourself revealing. What they are saying in their letter isnt so much wrong as just doesnt tell the whole story. They need a document with your sig on it that fulfils 1a and if they dont have that they are sunk.

You need to remember two things

 

1. they wont ever admit that they are wrong - even if all they had was a shopping list they would say its enforceable. When you are at the wrong end of one of these damned letters it can be hard to remember that, but if they dont have a document with the prescribed terms and your sig then they have had it
   
2. they wont always let up. The above argument means ONLY that the account cannot be enforced via the Courts - it doesnt mean that it has disappeared in some sense. However, it would be interesting if someone could find out what the regs on phoning people are. I had one lot of monkeys phoning me last week and their take was "three times" with no requirement that they give up once they speak to me. I strongly suspect they make it up. What might make them give up in due course is the slow realisation/ acceptance that you arent going to pay up. I am looking for a F&F with the mob that phoned me last week (its a post 2007 account so 127 - 3 doesnt apply any more) and tbh we are about £60 apart. I just wonder how much their phone calls have eaten into that?
   

[EOS-5D]

SFU

 

Thank you so much. You are a legend.

 

Take Care

 

EOS-5D

[citizenB]

I think you need to ask them to provide you with either a copy of the law/regulations that allows them to telephone in the manner they are advising,alternatively to provide you with the details of that law/regulation in order for you to confirm for yourself.

[EOS-5D]

Thank you CB, you too are a true legend.

 

I'll get cracking on my reply ASAP

 

Best

 

EOS-5D

[EOS-5D]

Good Morning All,

 

I received a recorded delivery letter from M&S this morning and it was a carbon copy of the previous letter they sent me, except they've added that "I can consider this as M&S' final response on the matter".

Needless to say they havent provided proof (which Ive asked for) that they can call me 4 times a day but only make contact once and they still havent answered my question on why section 61(1)(a) has no bearing on this alleged agreement.

 

Cheers

 

EOS 5D

[EOS-5D]

Hello All,

 

Long time no speak!!

 

I recdeived a letter from DLC on Saturday, asking me to contact them regarding the alleged debt to M&S. I sent them an email telling them that the alleged agreement is un-enforceable and for them to return the file back to M&S.

 

My question to you is, has anyone had any dealings with DLC, as they have now called me several times since Saturday and its getting a bit boring now.

 

Hope youre all well

 

Regards

 

EOS-5D

[seriously fed up]

Had dealings with them a year or so ago (dont think it was re M&S though) - from memory the rule is "just say no". Problem is always the telephone calls - caller id is often a good idea.

[EOS-5D]

Hello All,

 

Hope you're all well.

 

Well, after over a year of not hearing anything from M&S or any DCAs on their behalf, we've had a letter this morning advising us that they've sold the account and any sums owing on the account, to Marlin Europe I. Has anyone had any dealings with Marlin, and what would be the best way to deal with this?

 

Kind Regards,

 

EOS-5D

[IainHL]

Hello EOS-5D. See the responses in Still_surviving's thread http://www.consumeractiongroup.co.uk/forum/showthread.php?224659-HSM-v-M-amp-S-Credit-Card&p=4170001#post4170001.

[EOS-5D]

Hi All,

 

I CCA'd M&S money last week with a template letter from this site. Of course I didnt sign the letter, I used block capitals as advised.

 

I recieved a reply from them this morning which had 2 pages in it.

 

The 1st page was a letter saying that under the consumer credit act, before they can provide a copy of this info, they need my "signature of authority", and that I had to allow 12 days for them to process this info and the 2nd page was a form which I had to fill out with my personal details.

 

My questions are:-

 

1) Do I need to provide them with a "signature of authority" and further personal details before they release any info to me?

 

2) Is this just a delaying tactic by them, because they dont have or cant find my agreement?

 

3) What is my next move? Is there a template for a reply to them?

 

 

Thanks in advance for any advice.

 

Cheers

 

EOS5D

 

OK

 

I received my CCA information back from M&S yesterday. Could someone please have a look to see if there are any "holes" in it. I dont know if this will have a bearing on things but I thought I should mention it. A member of M&S staff filled this form out for me instore, as I didnt really want the card but she was really pushy.

 

For some reason Ive created 10 single PDFs, so Ive spread the CCA Info over 2 posts, Sorry.

 

Cheers

 

EOS-5D

 

Part 2, PDFs 6-10

 

ta

 

 

 

 

 

 

 

 

 

 

CCA return.pdf