M&S money Credit Card CCA Problems

[seriously fed up]

Ok lets go through their letter paragraph by paragraph

Paragraph 1 is basically to get you worried - an obvious interpretation is "the tame lawyer we keep in a box in a cupboard says that we have you by the short and curlies mate, so you either better get your legal eagle on the job (at whatever expense to you) or pay up like we said".

Paragraph 2 is we have fulfilled the requirements of s78 as that nice Judge Waksman said, by sending you out any old rubbish.

Paragraph 3 - pay up or we are going to keep phoning you

Paragraph 4, if you think you are hard enough (and stupid enough) get the OFT on to us.

Responses to these are quite straightforward

Paragraph 1, just ignore them - just threats

Paragraph 2 - Waksman distinguishes between the "information purpose" (s78) and the "proof purpose" (s61 and 1a in particular). Its interesting that when they refer to s61 its always to 1b which only requires terms to be embodied and not contained as 1a does. You might want to write back and ask them if the consider whether they feel that 1a would be satisfied by the documents they have sent you, or whether they think a court would accept what they have sent as 1a compliant (IainHL's suggested wording is very good imo). My guess is that they will ignore you and instead hide behind 1b or having fufilled their requirements under s78. But you have asked.

They wont let you see the original because all they have is a microfiched copy of the front page of your application. So in a sense they are right here - they have already let you see all they have, so going to their office to view it is a bit of a waste of time.

Paragraphy 3 - I tried using this one - doesnt always work, but it does sometimes -

"Secondly I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.

I now require all further correspondence from your company to be made in writing only.

I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

If you continue to harass me by telephone, you will also be in breach of the Wireless Telegraphy Act (1949) and I will report you to both Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

Be advised that any further telephone calls from your company will be recorded."

The last bit is particularly good, as even if you arent, they dont know that and have to work on the basis that you are. Btw, they will write back saying that they do not consider what they have done to be unlawful (and to be fair it might not be) but you arent concerned with the calls you have had so much as stopping them in the future and if it does this (or even reduces them) then it has achieved your purpose

 

Para 4 - your time is better spent watching the World Cup than contacting the OFT, unless M&S have come to your door, set fire to your house and sold your kids into slavery OFT wont want to know. They might get a warning, but M&S would say its embodied in the terms and conditions that they can do this, and point out that the OFT dont actually have the power to stop them. Seriously, I havent seen OFT side with anyone other than the banks, or say "nothing to do with us gov". Dont do it.

Edited July 2, 2010 by seriously fed up
add ref to ianhl's post

[seriously fed up]

she could call it the Turin Shroud for all the odds it would make. Just the same as it if waddles and quacks its probably a duck, if it says application form at the top its probably an application from.

This is the usual guff. You make an application and they look at and decide to send you a card, so by employing Paul Daniels to do the necessary it becomes an agreement.

For one thing, the application form is just that - its an application form - check it out - if its like any of the forms that i have seen it will have phrases in it such as "if my application is accepted". Thus, I would contend that s59 applies - "59.—(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.". At the time that you signed that form it was no more than prospective - filling it out didnt get you the card - the agreement with the bank at that point was no more than prospective (in any sense of prospective that I know) and thus it has to be void.

[seriously fed up]

go at this long enough and you will have them balancing on one leg

[seriously fed up]

[seriously fed up]

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

My guess is a DCA

[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.

[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?
   

[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.