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Help! - Marks & Spencer Financial Services Court Claim Received


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Hi

 

I have received a court claim from Marks & Spencer Financial Services (by way of DG Solicitors) for a balance relating to a Marks & Spencer Money credit card.

 

This was issued on 03 FEB 2010

 

Particulars of Claim are:

The Claimant's claim is for the balance outstanding under a credit card agreement dated 10/07/2000 and numbered XXXXXXXXXXXXXXXX regulated by the Consumer Credit Act 1974. The Defendant has failed to make payment of the arrears of instalments as required by the Statutory Default Notice served by the Claimant dated 11/11/2009. The Defendant has failed to pay the sum due.

 

AND the Claimant claims:-

1. # XXXX.XX

2. Interest pursuant to Section 69 of the County Court Act 1984 at a rate of 8.000 % per annum from the date hereof at a daily rate of # 1.40 to the date of Judgement or sooner payment.

 

The claim is signed by DG SOLICITORS (well printed actually)

 

--------

 

History of communications:

 

On 01/07/2009 I sent a CCA request

On 22/07/2009 I sent a Notice of Non-Compliance to the above CCA request

On 22/07/2009 I sent a Notice of Dispute putting the account in dispute due to the lack of a credit agreement

On 01/08/2009 M&S Money sent letter appologising for the delay and enclosed a copy of the original application form with my signature (Marks and Spencer Store Card) which was barely legible and impossible to read which did not contain pre-scribed terms along with a copy of some terms and conditions dated 24/09/08.

 

From there we have sent letters back and forth regarding the enforceability of the supplied application form and M&S Money kept saying the account was not in dispute. I kept putting the account in dispute and told them that I did not acknowledge any debt unless they could provide a true copy of an agreement for the credit card and not an application for a store card, which also contained all of the prescribed terms under the CCA.

 

Needless to say they were not interested and pushed for payments and continued with the collection of the account.

 

A Default Notice was issued on 11/08/2009 by M&S

A Final Demand was issued on 26/08/2009 by M&S

 

On 28/08/2009 I sent a SAR under the Data Protection Act.

 

I received back the same application form under the SAR which again was not legible and did not contain any of the prescribed terms. (Please see the attached document)

 

I am looking at some advice on CPR and on how I should deal with the Court Claim, Should I dispute jurisdiction, defend, counter claim.

 

Any advice or similar experience would be greatly appreciated.

 

Much love

MandS Applcation Form.pdf

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Hi

 

I have received a court claim from Marks & Spencer Financial Services (by way of DG Solicitors) for a balance relating to a Marks & Spencer Money credit card.

 

This was issued on 03 FEB 2010

 

Service is then deemed +5 days so 8th Feb

You then have a further 14 days to acknowledge the claim, stating that you will defend all, if that is what you want to do. You then have a further 14 days to issue your defence.

I take it that the claim was issued through northampton. If so you can acknowledge and lodge defence online.

 

Particulars of Claim are:

The Claimant's claim is for the balance outstanding under a credit card agreement dated 10/07/2000 and numbered XXXXXXXXXXXXXXXX regulated by the Consumer Credit Act 1974. The Defendant has failed to make payment of the arrears of instalments as required by the Statutory Default Notice served by the Claimant dated 11/11/2009. The Defendant has failed to pay the sum due.

 

Your application form is totally illegible.

What are the dates on the DN?

Date of issue.

Date for rectifying the default.

Was the sum mentioned in the DN just arrears or full ballance.

 

AND the Claimant claims:-

1. # XXXX.XX

2. Interest pursuant to Section 69 of the County Court Act 1984 at a rate of 8.000 % per annum from the date hereof at a daily rate of # 1.40 to the date of Judgement or sooner payment.

 

They are not entitled to interest on a regulated agreement.

 

The claim is signed by DG SOLICITORS (well printed actually)

 

--------

 

History of communications:

 

On 01/07/2009 I sent a CCA request

On 22/07/2009 I sent a Notice of Non-Compliance to the above CCA request

On 22/07/2009 I sent a Notice of Dispute putting the account in dispute due to the lack of a credit agreement

On 01/08/2009 M&S Money sent letter appologising for the delay and enclosed a copy of the original application form with my signature (Marks and Spencer Store Card) which was barely legible and impossible to read which did not contain pre-scribed terms along with a copy of some terms and conditions dated 24/09/08.

 

Terms also illegible.

 

From there we have sent letters back and forth regarding the enforceability of the supplied application form and M&S Money kept saying the account was not in dispute. I kept putting the account in dispute and told them that I did not acknowledge any debt unless they could provide a true copy of an agreement for the credit card and not an application for a store card, which also contained all of the prescribed terms under the CCA.

 

Needless to say they were not interested and pushed for payments and continued with the collection of the account.

 

A Default Notice was issued on 11/08/2009 by M&S

A Final Demand was issued on 26/08/2009 by M&S

 

On 28/08/2009 I sent a SAR under the Data Protection Act.

 

I received back the same application form under the SAR which again was not legible and did not contain any of the prescribed terms. (Please see the attached document)

 

I am looking at some advice on CPR and on how I should deal with the Court Claim, Should I dispute jurisdiction, defend, counter claim.

 

You will need to send a CPR 31.14 letter, but best if you can answer questions above first.

 

Any advice or similar experience would be greatly appreciated.

 

Much love

Vint

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Hi Vint,

 

Thanks for reading my thread and posting back so quickly.

 

Yes the letter was sent via Northampton County Court (CCBC)

 

Default Notice was Dated 11-08-2009, see attached file, it involved arrears and was 14 days from date of letter.

 

What I dont understand is that in the particulars of claim they are stating that they formally demanded the repayment of the sums due on the 11/11/2009, yet I have a FINAL DEMAND (also attached) letter dated 26/08/2009 and cannot seem to find any letter from them on 11/11/2009.

 

Also am I right in thinking that because the documents they have supplied are not legible and I have stated that to them on numberous occassions and now the statutory time has elapsed to produce these documents I have requested and it has continued for several months that they are actually in default under the CCA for failing to supply a reasonable copy of the agreement?

 

Obviously, I want to take the best course of action I can but I am not sure if I am best contesting jurisdiction, defending the claim and or counter claiming.

 

I will more than likely respond online and with definitely want to see what cards M&S hold by way of a CPR I just need to know which avenue I am best pursuing.

 

Thanks in advance

 

Lee

M&S Default 11-08-2009.pdf

M&S Final Demand 26-08-2009.pdf

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Hi Vint,

 

Thanks for reading my thread and posting back so quickly.

 

Yes the letter was sent via Northampton County Court (CCBC)

 

Default Notice was Dated 11-08-2009, see attached file, it involved arrears and was 14 days from date of letter.

 

The DN is totally defective. Giving 14 days from this notice, is a big no no. They must give you 14 clear days from date of service. Service is + 2 working days for 1st class and + 4 working days for second class. So that stuffs them. Suggest it was second class, put them to strict proof that it was 1st class and that it was indeed posted on that date.

 

What I dont understand is that in the particulars of claim they are stating that they formally demanded the repayment of the sums due on the 11/11/2009, yet I have a FINAL DEMAND (also attached) letter dated 26/08/2009 and cannot seem to find any letter from them on 11/11/2009.

 

Could be accrued interest between the 2 dates, if not then the amount of the claim is overstated.

 

Also am I right in thinking that because the documents they have supplied are not legible and I have stated that to them on numberous occassions and now the statutory time has elapsed to produce these documents I have requested and it has continued for several months that they are actually in default under the CCA for failing to supply a reasonable copy of the agreement?

 

Yes, they additionally are in breach of s78 CCA 1974, that is a full defence in itself, but I would go on both lines.

 

Obviously, I want to take the best course of action I can but I am not sure if I am best contesting jurisdiction, defending the claim and or counter claiming.

 

At this stage, you do not contest Juristiction. This is just if you think that the case warrents a higher court anbove county.

You will be defending the claim in FULL.

Don't wory about counter claiming.

 

I will more than likely respond online and with definitely want to see what cards M&S hold by way of a CPR I just need to know which avenue I am best pursuing.

 

Thanks in advance

 

Lee

Your main defence is unlawful default notice and illegible agreement.

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Vint,

 

The DN and FD letters were sent by mailsort not as 1st or 2nd class I think. Anyway I have proof of when both letters were received as I sent a letter to M&S on 30-08-2009 acknowledging their letters.

 

Please see the attached document, I have higlihted the important part in red.

 

Thanks

 

Lee

M&S Letter to David Terrance 30-08-2009.pdf

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Hi Vint,

 

I forgot to mention that the balance claimed is more than £5000.

does that have any impact on the CPR letter i send and if so which letter am I best sending?

 

Thanks

 

Lee

No, at present it is multi track, so track has not been allocated.

 

The general rule of thumb is that you use a letter under CPR 31.14 to require disclosure of documents. You can then move on to 31.15 to insist on physical inspection if their documents are illegible or not forthcoming. CPR 18 is then used for disclosure of documents not listed in the POC.

 

Have a look here:

http://www.consumeractiongroup.co.uk/forum/

 

There are libraries that should help. Also read pt's thread here:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

 

Vint

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goodie,

 

You can adjust this one to send to the Claimants Solicitors.

 

Dear Sir,

 

Re: xxxxxxxxxxxxxxxxxxxxx Case No: xxxxxxxxxxxxx

CPR 31.14 Request

 

On xxxxxxxxxxxxx 2009, I received the Claim Form in this case issued by you out of the Northampton ( CCBC ) County Court.

 

I confirm that I am in the process or returning my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored, supplying only inadequate, reconstructed and illegible documents.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim:

 

1 The agreement, a true copy of both sides of the original executed agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the originals should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 The default notice

 

Cont:

3 The termination notice

4 Any other documents mentioned in the Particulars of Claim

 

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy.

Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any versions to include an obligation to recover and preserve such versions, which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully

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Vint,

 

The DN and FD letters were sent by mailsort not as 1st or 2nd class I think. Anyway I have proof of when both letters were received as I sent a letter to M&S on 30-08-2009 acknowledging their letters.

 

Please see the attached document, I have higlihted the important part in red.

 

Thanks

 

Lee

Anything sent other than Royal Mail, first class, is deemed second class mail. It was probably ukmail, which is deemed second class.

 

so for example, if the letter is dated 1st, then it is deemed served on the 5th, in which the date to rectify the default would be COB 19th.

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Vint,

 

The DN and FD letters were sent by mailsort not as 1st or 2nd class I think. Anyway I have proof of when both letters were received as I sent a letter to M&S on 30-08-2009 acknowledging their letters.

 

Please see the attached document, I have higlihted the important part in red.

 

Thanks

 

Lee

Thats fine. Your response shows that it was sent second class. They are stuffed, however you will need to point that out in your defence.

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Hi Vint,

 

Thanks for all your help so far!

 

Just to update:-

 

AOS submitted @ around 10pm online last night (08/02/2010) so the court should have processed first thing this morning (09/02/2010).

 

CPR 31.14 letter sent today (09/02/2010) to DG Solicitors via Special Delivery so they will receive it guaranteed by 1.30pm tomorrow (10/02/2010).

 

Is my defence due 28 days from AOS or is it due 28 days from DOS?

 

Thanks

 

Lee

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Just start a callender going.

 

1. claim received

 

2. claim acknowledged

 

3. defence due

 

4. cpr 31.14 letter sent.

 

etc.

 

at + 7days from sending the CPR 31.14 letter we will need to send a follow up.

 

Hi Vint,

 

I have received no response so far regarding the CPR 31.14 letter an the 7 days expires this week.

 

What is the next letter (follow up) to be sent and also when or do I need to issue a CPR 18 letter?

 

Cheers

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The default notice is incorrect anyway as it states that you only have 14 days from the date of the notice to remedy and makes no allowance for postal delivery.

 

The formatting of the notice isn't correct, as I understand it. Have a quick read through my M&S thread and there's information on there about the formatting.

 

http://www.consumeractiongroup.co.uk/forum/m-cards/192779-m-default-following-cca-2.html#post2084005

 

Best of luck...they must be getting desperate if they're taking a crappy agreement such as this to court!!

If you feel I've helped then by all means click my star to the left...a simple "thank you" costs nothing! ;)

 

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Give it a couple more days, then send this:

 

Dear Sir,

 

Re: xxxxxxxx v xxxxxxxxxxxxxx Case No: xxxxxxxxxxxxxxxxx

CPR 31.14 Request/Reminder

 

 

Further to my CPR 31.14 request, I note that you have failed to disclose the vital documents mentioned in your POC and required by myself by letter dated xxxxxxxxxxxxxxxx. I have enclosed a copy of my original disclosure request

Again, you should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within no more than 5 days of receiving this letter.

I would remind you that Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy.

Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

Again, if you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully

 

Your CPR18 request is only if you require other documents not mentioned in the POC and therefore your CPR 31.14 letter.

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Hi Vint,

 

 

Is my defence due 28 days from AOS or is it due 28 days from DOS?

 

Thanks

 

Lee

Sorry, Missed this bit Lee. Your defence needs to be in before service + 28 days, so 33 days from the date on the claim form.

 

Keep an eye on the dates and responses from DG. You may have to submit an embarrassed defence if DG do not respond, but you must submit something or they may get judgement by default.

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The default notice is incorrect anyway as it states that you only have 14 days from the date of the notice to remedy and makes no allowance for postal delivery.

 

The formatting of the notice isn't correct, as I understand it. Have a quick read through my M&S thread and there's information on there about the formatting.

 

http://www.consumeractiongroup.co.uk/forum/m-cards/192779-m-default-following-cca-2.html#post2084005

 

Best of luck...they must be getting desperate if they're taking a crappy agreement such as this to court!!

 

Hi WelshMam2009,

 

Thanks for reading my thread. I will have a look at your thread on the format of DN's.

 

I am hoping that they are getting desperate and pull out at the 11th hour.

 

I clearly never signed up for a credit card and all they have is an application for a store card (which wasn't even filled out by myself) which has completely different terms in itself i.e can only be used in store etc but no agreement was actually sent so no contract was made.

 

Somewhere along the line they have converted it into a credit card and are trying to enforce an application form as proof of an agreement, how ridiculous.

 

There is a piece of ligislation under the Goods/Services Act which states that anything posted to someone which they did not request can be treated as a gift and that the sender can then not try and force the receiver to pay for such Goods/Services

 

Hopefully I will have lots of options to choose for my defence!

 

Thanks for your support.

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I clearly never signed up for a credit card and all they have is an application for a store card (which wasn't even filled out by myself) which has completely different terms in itself i.e can only be used in store etc but no agreement was actually sent so no contract was made.

 

Somewhere along the line they have converted it into a credit card and are trying to enforce an application form as proof of an agreement, how ridiculous.

 

That's potentially a big flaw for M&S if it’s deemed they have breached s51 of the CCA 74.

 

51. Prohibition of unsolicited credit-tokens

 

(1) It is an offence to give a person a credit-token if he has not asked for it.

 

(2) To comply with subsection (1) a request must be contained in a document signed by the person making the request, unless the credit-token agreement is a small debtor-creditor-supplier agreement.

 

(3) Subsection (1) does not apply to the giving of a credit-token to a person

(a) for use under a credit-token agreement already made, or

(b) in renewal or replacement of a credit-token previously accepted by him under a credit-token agreement which continues in force, whether or not varied.

I think this was added way back near 1974 to make sure Credit Card bankers didn't just give these out like confetti or, if they already had, then to fall into line with the new CCA 1974 Act, they had to get people to sign up to an Agreement if they wished to avoid falling out with the new Act.

Here are a few links to some articles (and some extracts) I discovered when researching this point last year and hope they are of some use to you.

 

From OFT website...

 

The Office of Fair Trading: Clearer card choice for consumers

 

Clearer card choice for consumers

 

M&S agrees to amend conversion of store cards to credit cards

PN 128/03 8 October 2003

Marks and Spencer Financial Services plc (MSFS) has changed the way it will offer to replace its store cards by the &More credit card after action by the OFT.

 

MSFS had sent out letters to many card holders saying that its store card would automatically be replaced by the &More credit card unless card holders objected. Under section 51 of the Consumer Credit Act 1974 it is an offence to send a credit token to a consumer unless it has been requested in writing.

 

MSFS considers that it was not contravening the law because it was not supplying a new credit token but sending a replacement card as a result of a variation to the existing store card agreement. The OFT view was that MSFS did not have the right to change one type of card into another in this way.

 

MSFS has agreed to make changes to its plans. All store card holders being sent the new &More card will now be told that, if they wish to keep their store card, they need take no action. If they wish to replace the store card with the new credit card, consumers must take positive action to activate it. This reduces the element of inertia selling.

 

In addition, the OFT has challenged a standard term in the MSFS store card agreement that purports to give MSFS an unrestricted unilateral right to change the terms of the agreement. The OFT considers that this term was legally unfair. MSFS has, without accepting the OFT's view, given the OFT an undertaking that it will amend the challenged term to limit its applicability.

OFT shows M&S the yellow card - Telegraph

 

Marks & Spencer suffered an embarrassing blow yesterday when the Office of Fair Trading (OFT) accused the retailing giant of employing unfair tactics to get customers to switch to its new combined credit and loyalty card.

M&S had written to more than a million people, saying that their M&S charge card would be automatically replaced with its new "&more" credit and loyalty card.

 

Under section 51 of the Consumer Credit Act 1974, the OFT successfully argued that it is an offence to send a "credit token" to a consumer unless it has been requested in writing.

M&S, which launched "&more" on Monday, stronglyrejected the OFT's claims. "We do not believe that we acted irresponsibly," said an M&S spokesman, adding: "Our roll-out of the card is unaffected."

 

The retailer believed that it was not contravening the law because it was not supplying a "credit token", but sending a replacement card under the terms of an existing store card agreement.

 

However, M&S has now agreed that all charge card customers being sent an "&more" credit card would have to "activate" it before use.

M&S has 5m charge card holders in total. Some 2.6m were selected to have their cards replaced with the "&more" card, and of these 1m had their card automatically replaced. The remainder had to "activate" their new cards.

This article relates to the Debenhams Card but also makes a brief reference to the M&S situation

 

OFT demands credit card retreat from GE Capital - Times Online

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Also, check out this post/thread for inspiration and confidence. M&S withdrew their case...

 

http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/199747-help-court-papers-m-3.html#post2333083

 

and this one...another Scottish one but CCA 74 still applicable, just different court process.

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/195822-m-more-court-papers.html#post2121523

Edited by WelshMam2009
Second link added

If you feel I've helped then by all means click my star to the left...a simple "thank you" costs nothing! ;)

 

Restons MBNA -v- WelshMam

 

MBNA Cards

 

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Hi WelshMam2009,

 

Thanks for taking the time to provide those resources.

 

I will certainly give them a thorough looking over.

 

DG Solicitors have not responded to my CPR 31.14 request so I am sending out a reminder today, fingers crossed they are thinking that they might not have a case.

 

Only time will tell!!!

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Hello googie000!

 

DG Solicitors have not responded to my CPR 31.14 request so I am sending out a reminder today, fingers crossed they are thinking that they might not have a case.
Don't cut them any slack, I'd remind them by way of an N244 Application asking the Court to Order that they comply with your CPR 31.14 Request...

 

...and make sure you are allowed to visit their Offices to inspect it, do not accept a crabby copy via Post. You want to go and see the real thing, put your rubber gloves on (so that you won't add any finger prints or DNA to it if it's a recent forgery) then pick it up and inspect it with a magnifying glass!

 

Take a camera, and take images of it. Better still, see if you can get a small portable digital magnifying glass that can capture a close up of some of the document, especially your signature.

 

This may prove it's a copy, by the way the mark making has been made on the paper (Laser Colour Toner, Black & White Laser or Photocopier Toner, type of print method used, all will be revealed via a close up of the document).

 

Nail the originality of the Agreement before it gets to Court. Knowing DoG Solicitors and Sparks & Mencers as we all do, they will be busting a gut not to fess up to the likely fact that they do not actually have an original copy of a properly executed Regulated Credit Card Agreement.

 

If it's a copy of a Store Card Application, even better.

 

No prisoners.

 

Cheers,

BRW

Edited by banker_rhymes_with
It's Friday...too many Cheers! Was thinking of Beer later this evening!
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I had the same problem with a Debenhams Storecard that was "Upgraded" to a credit card. I never signed a new agreement. I used the OFT's judgement against GE, a Storecard is not a credit card, to defend the claim. They discontiued at the last minute.

Ge provided a storecard application, but couldn't use it to enforce the claim. The account reference number on it, was different to the one on the claim, it also didn't have a clause 7 that again they refer to, & the interest rate was different.

Your case is exactly the same.

Good Luck

 

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