M&S money Credit Card CCA Problems

[citizenB]

All you need do is say that you wish for all communication to be in writing ir order to protect yourself in the event of litigation. Anything they need to say to you is best put in writing in order for there to be no misunderstanding on either side. That in respect of personal security you have no intention of discussing your personal finances over an unsecure telephone with someone you do not know.

 

It is legally acceptable for you to communicate in writing and nowhere does it say they HAVE to phone you, or that you HAVE to respond to them if they do.

 

If it is their intention just to inflict stress and pressure, then that is against OFT guidelines.

[EOS-5D]

For those that have helped me and subbed to this thread, Thank you for your help and information.

 

I have another problem with M&S now and have started another thread, which can be found on the following link.

 

http://www.consumeractiongroup.co.uk/forum/m-cards/257093-m-ppi-help-please.html

 

I'll be very greatful if you could take a quick look and see if theres anything that I could do.

 

As always

 

Many Thanks In Advance.

 

E5D

[EOS-5D]

I've had another letter from M&S today.

 

I sent them a letter 2 weeks ago, advising them that in their previous correspondence to me, they over looked S61 (1)(a) in favour of S61 (2) to suit them.

 

They have replied by saying they have consulted with their legal dept, who say the alleged agreement is one document and "legally enforceable".

 

I have attached their letter below. Could anyone impart a piece or two of advice.

 

Thanks in advance

 

EOS-5D

M&S CCA REPLY AGAIN.pdf

[seriously fed up]

Two things

 

1. that is the main reason they have a legal dept - to tell them what they want to hear. Its a pretty pointless statement, since the responsibility of their legal dept is to M&S and not to you, its hardly neutral
   
2. its interesting that they have admitted in their second paragraph that they dont have the original - they have copied it on to microfiche in order to save space. I read what they say in their letter, but "common" practice (ie this happens elsewhere - is it what happens at M&S? Dunnoe) is to copy the sig part of the agreement but nothing else. So their problem in asserting that the prescribed terms are on the reverse is "prove it". Problem with a copy is that it can always be mucked about with. Some courts are happy enough, but not always.
   

Then, going back in your thread, is whether their assertion that "the T&Cs are on the back" is adequate. For instance is the front an application form? Does having the T&Cs on the back mean that they are contained (as the should be) or merely embodied. This is covered in BRW's posts on 26/2 - worth another look imo.

Remember the purpose of this letter is to get you to pay up - its not about truth.

[steven4064]

EOS

 

I had a quick look at the agreement. It seems that pages 2-3 are one document containing the prescribed terms and the pages 4-8 are another (page 4 seems to be a repeat of page 5 BTW). It is hard to see which of these page 1 belongs to. Since that is the page with the signature on, to be enforceable, it must belong to one or the other.

 

Perhaps their (independent) legal department could elucidate.

[EOS-5D]

Thanks for your reply Steven.

 

Are you saying that it looks like the agreement had been executed and therefore enforceable

 

 

Cheers

 

E5D

[seriously fed up]

the key part of Steven's post is this

" It is hard to see which of these page 1 belongs to" - I would agree and its consistent with Banker's posts at end February about M&S's "sales" strategy in store.

This is something that they (not just M&S) do - send the sig document with a set of T&Cs attached, asserting the latter belongs to the former.

The issue now is that if they want to push this further by taking court action they would have to PROVE that page 1 belongs to 2 and 3. If they cant then prescribed terms are missing and the usual consequences follow. Question for them is whether they want to take the chance of being able to prove that or not.

Couple of supplementaries

 

1. even if they could prove that 2 and 3 belong with 1, there is still the issue of whether the prescribed terms are contained within the sig document, or merely embodied. If they can show the three pages belong together then I would guess contained, but its another obstacle for them to get over
   
2. it nicely illustrates the unwisdom of you taking them to court for an order to declare the account uneforceable, as in that case the onus of proof to show 1 doesnt belong with 2/3 would be on YOU.
   

So, lacking an original (see their letter) they are going to struggle to show that 1 does belong with 2/3. What they might try is to produce a blank of what you signed with 1-3 as a single document and assert this is what you signed. On the other hand the court might not accept this, seeking an original

[EOS-5D]

Many thanks as always SFU, I now see things a little clearer.

 

Have a good weekend

 

E5D

[steven4064]

Thanks SFU for clarifying - spot on

[EOS-5D]

Hi Gang

 

Its me again.

 

Further to writing to our good friends at M&S, pointing out to them the areas where their alleged agreement fails to comply with the CCA 1974 ( as per BRW's post earlier in my thread), I have today received the attached response from them, telling me that the alleged agreement is enforceable and that their normal collection activities will continue.

 

Would someone please have a quick look at their response, as it just looks like a load of waffle to me.

 

Thanking you in advance

 

E5D

M&S RESPONSE 190510A.pdf

M&S RESPONSE 190510B.pdf

[IainHL]

Hello EOS-5D, I see you are currently with Jayne Ellett. Have you had any letters from Graham Officer at all? His name always makes me chuckle.

 

Anyway these letters are just the standard posturing by M&S. They will not admit that they haven't got any legs to stand on, so the only recourse open to you really is to stop paying and bat away the DCAs, as long as you can take the hit on your credit file.

 

I am one year into this process with M&S, and am prepared to wait for six years if need be. I have basically told them to put up and take me to court, so far they appear to be reluctant to do so. I posted the form of words I used on another thread earlier this week. It also had an interesting statement about how internally they have written off all chargecard to credit card conversions (I can't recall if your is one of these?). I will see if I can find it and post a link.

 

I do notice from your posts that you had a default notice with the use of "14 days". That makes it defective, the regulations state that the default notice must contain a date.

 

EOS-5D, here is the link to that thread I referred to above: http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/259892-m-money-gothia-now.html.

[banker_rhymes_with]

Hello EOS-5D!

 

Tell M&S to bog off and stop messing around.

 

s61(1)(b) won't cut the mustard.

 

It's s61(1)(a) that they need to comply with...

 

That being a document that has your Signature and the Prescribed Terms contained within the four corners of the Agreement.

 

The word embody is what gives it away for them, the word they are looking for is contained, and that is nowhere to be seen in s61(1)(b).

 

They can embody anything they like from another document into the Agreement, free fluffy bunnies at Easter, public bank worshipping whenever a month has 32 days in it, you name it, they can embody it into the Agreement...

 

...but that won't make it enforceable!

 

Cheers,

BRW

[seriously fed up]

you are quite right EOS-5D, "a load of waffle", and as the banker points out, the relevant section of the Act aint 61(b) but 61 (a) which requires your sig and the prescribed terms. They have practically admitted in their last letter (not the most recent, but the one before that) that they dont have this so they are just trying it on.

There is though a wider issue here. How likely is that M&S dont know that what they need to satisfy is s61 (a) and that s61(b) as the banker points out in such an interesting way is a side-show. The problem with this is not just that it is wrong and thus misleading, but that it is deliberately and premeditadedly misleading, which brings it up against the OFT guidlines on debt collection which specifically mentions "leaving out or presenting information in such a way that it creates a false or misleading impression or exploits debtors' lack of knowledge" (2.2.b)" as an unfair practice. Perhaps a complaint to OFT might be in order for such assertions in letters from DCAs. A single complaint will make little difference but if we all complain then perhaps we might exert some influence

[EOS-5D]

As always guys, THANK YOU so much for your feedback.

 

Iain, this wasn't a chargecard conversion and thank you for your posts, i'll take a peak now.

 

I'll prepare yet another letter for them as my return volley in this game of letter ping pong.

 

Mentioning DEFAULT NOTICES, I had the pleasure of receiving a phone call last week from the collections dept (despite withdrawing my permission for them to contact me by phone). In that conversation the lovely lady said that as I am 3 months behind with my payments, M&S will issue a "default notice" any time now. I didnt have the heart to tell her that I already have one of those for my scrap book. But, can they issue as many "default notices" as they like, what is the score there then? because the "default notice" I already have from them says that I have 14 days to pay the balance or they will issue an "account termination notice"

 

Once again, cheers guys and have yourselves a great weekend

 

E5D

[EOS-5D]

Hi Again

 

Well Ive had my weekly letter from M&S which is attached.

 

This time it's from Pre Legal Recoveries using M&S's address, so it's obviously an in house thing. They are threatening to send an agent to my home address. I know that once they are here they have no more authority than the milky or postie, but still unpleasent I suppose.

 

What concerns me and I wonder how legally they are behaving because it's obviously M&S themselves and not a 3rd party debt collector, so why not just send a letter from M&S collections department? Why pretend they the letter is from someone else? They've even tried to make it look slightly more official by having a tiny little logo of a port cullis.

 

I will send them a very strongly worded letter but is there anything that you guys think I should mention or any points from their letter where they have broken or very close to breaking the law.

 

 

As always, thanks in advance

 

 

E5D

M&S PLR.pdf

[seriously fed up]

Just another threat imo. Of course there is the possibility that they just might do it, but note the use of "I am planning to ..." - not "I am going to ..."

I would suggest having a read at this http://www.consumerforums.com/resources/templates-library/86-debt-collectors/590-letter-used-when-a-dca-threatens-a-doorstep-visit- and adapt to your own purposes. Just i case have a read at this as well http://www.consumerforums.com/resources/templates-library/86-debt-collectors/528-dealing-with-doorstep-visits.

I wouldnt worry about it too much. While they do do this, I would reckon that the proportion of cases where they go ahead with the visit as a proportion of the threats made is pretty small.

Have a good weekend.

SFU:)

[EOS-5D]

Many thanks for the swift reply SFU.

 

Could you shed any light on the other points of my post, regarding M&S writing a letter in such a format.

 

Have a good weekend yourself

 

E5D

[seriously fed up]

This is fairly obvsiously "another desk" at M&S. They (most OCs) play these kind of games. Pre Legal Recoveries is an interesting name dont you think? Kind of implies "well we are going to try to get our money without having to go to court", which is nice of them. Its just a game they play with little significance imo. Just more smoke and mirrors.

You get your letter off to Mr Offley on Tuesday (I would send it "proof of delivery" and as quick as possible just to be on the safe side).

Fwiw, I still think the chances are that this is just anothe scare tactic and nothing will happen - but as I said, better safe than sorry.

It is a bit of blow when you get this kind of letter - even if it means nothing, is of no significance and is of no practical consequence (I think we have identified already that if the best they have is what they have sent, they are really in bother with this one) - it does make you feel bad (I know it does when i get them). My advice - get your letter written and ready to send when the PO opens next week, and in between have a nice weekend.

[EOS-5D]

I had a phone call from PLR this evening. The person wanted to take payment to clear the account. They were a bit surprised when I said no and that the alleged agreement was unenforceable. They said it was, I said it's wasn't for a few minutes then they said they are going to recomend that the file is passed to M&S' lawyers.

 

I thanked them and hung up.

 

Looks like things are going to heat up soon.

 

E5D

[seriously fed up]

I wouldnt be all that sure.

First of all what do you expect the drone at the other end of the phone to say - "oh yes, you're right"? Sorry, but I dont think you will ever hear that.

Secondly, what do you think their legal qualifications are? Or even their knowledge of the relevant legislation? This could well just be something like "we may recommend ...."

You already have a pretty good handle on the "limitations" of what they have sent you. Just stay with them

[EOS-5D]

Hi Again,

 

Looks like PLR have taken a short break for Whitsun, so, we're back with J Ellett for the time being.

 

As always, Ive attached her letter which says that their alleged agreement is enforceable because it complies with S61(1)(b) & S198(4).

 

Yet again, they seem to be ignoring S61(1)(a).

 

Am I right in thinking that this alleged agreement isnt enforceable because there are no prescribed terms within the page that cointains the signature, despite them insisting that embodied terms are suffient.

 

Many Thanks & Kind Regards

 

E5D

M&S CCA REPLY 11.pdf

[seriously fed up]

The fact that they havent made mention of 61 1a is telling as that is the one that contains (from their point of view) "the poison pill", leading as it does to s65 and thence to s127 (3).

The argument would be that the prescribed terms should be on the same page as the signature. The problem is - and this is covered by Waksman - is what constitutes a "document in more than one part"? Would the prescribed terms being on the other side of the page be ok? It could be argued that being within the sig document (not page) that the prescribed terms are indeed "contained". That could be argued - though precedent would suggest it wouldnt work. It would certainly be taking a chance on their part and I would continue to assert as you have done. The fact that they miss out any reference to 1a suggests that they are aware of the problem they face.

Just out of interest when I was in my local M&S this week, I lifted a copy of their application pack purely for research purposes - not going there again! Interestingly their application remains on two sides of a single page, BUT, while in the old forms one would fill out one's biog details (address, bank, employment etc) and sign THAT page, the sig box is now on the other side. So page 1, if you like is to be filled out by the applicant with name, address etc. But then you have to proceed on to the other side where the sig box is practically at the bottom of the second column, after all the prescribed and other terms. It seems they have learned.

[EOS-5D]

Hi SFU,

 

Thanks for swift reply.

 

I'm going to reply to them, asserting my position and I will also ask them to comment on S61(1)(a) and why they think it has no bearing in this instance.

 

Should be interesting!! What do you think?

 

Once again, Ta and enjoy what's left of this rainy Sunday

 

E5D

[seriously fed up]

I think that sounds like a decent course of action EOS. Just dont expect too much - ie that they will agree. The only thing they will find agreeable is "here's the money". Silence is a win imo.

[EOS-5D]

I haven't heard anything from them for over a week now.

 

No letters or Phone calls. I'm getting worried. I don't think I miss them or getting jealous that thery're talking to someone else.

 

Just think it could be the calm before the storm!!

 

If thats the case, I'm ready.

 

Take Care

 

E5D