M&S Money/ Red Castle/ CCA?

[Mum2Four]

Hi

 

I don't know if anyone has had much experience with 'M&S Money'

. I applied for an M&S Chargecard in around 1996 (in store as they usually are!),

 

at that time my credit limit was £500 (I was a full-time Mum, husband was working).

 

I went back to work,

somewhere along the line the card was 'updated' to an M&S Credit Card and my limit gradually increased to around £10k!!

 

While working and paying for childcare I racked up lots of debt

- the M&S one being the hardest hit (due to large credit limit and my stupid belief that I could afford it!).

 

my debt caught up with me

, I realised it had got out of control and there was no way I could afford to repay it all.

 

Informed all the creditors,

sought advice from CAB/ Payplan.

 

I am now not working (couldn't afford childcare!) and paying all my creditors £1 a month - as recommended by Payplan.

 

Most have done the usual,

pass the debts from one DCA to another,

none producing a valid CCA.

 

M&S however have only just passed the debt on to a DCA, after 2 years?!

 

Out of the blue I received a letter from Red Castle Recoveries (Gothia),

the usual threat-o-gram.

 

I sent a letter explaining my circumstances along with an income & expenditure sheet and also another letter asking for the CCA.

 

I then received a letter from M&S Money with an application form (NOT a valid CCA) saying this was the CCA?

 

On Friday a recieved a letter from Gothia saying they can't accept £1 a month and have referred my case back to M&S Money?!

 

I can still only afford £1 a month (I have around £30,000 in unsecured debt accross around 13 companies, M&S being around £7000). I am not too sure what to do next.

 

I never speak to anyone on the phone as advised by this wonderful site - that really was stressing me out, but this is worrying me.

 

I know I can't pay anymore,

but I am wondering what their next step will be, Court maybe?

 

There was some woman outside our house in a car making notes the other day

- I wonder if their next step would be to try getting a 'charge' put on the house

. Has anyone had this happen?

 

I am in the process of selling my house so technically there's not an awful lot they can do

- and after the house sale I might be in position to make some F&F offers,

but won't be left with much after legal fees etc.

 

just didn't want a charge put on the house,

particularly as it's too small for us (family of 6, 3 bed house!)

- we will be better off privately renting.

 

Anyone had a similar experience with M&S Money that can give me some pointers? Thanks.......

[banker_rhymes_with]

Hello Mum2Four!

 

Firstly, please note that M&S in this case is Marks & Spencer Financial Services plc, owned by HSBC not M&S the Grocer!

 

So, behind this all lies HSBC.

 

M&S broke many rules when they bulk upgraded many Charge Cards to Credit Cards.

 

The two are not the same, and because they failed to secure the necessary properly executed Regulated Credit Card Agreement before sending people the nasty new M&S Credit Cards (Credit Tokens), they were told off about this at the time.

 

Didn't stop them, however, probably because, at the time, there was no CAG!

 

Anyway, get reading on CAG, and take a look at any and all M&S Threads you can find. There is now an M&S Forum, here:

 

M&S Cards - The Consumer Forums

 

Have a read about The Consumer Credit Act 1974 and take a good look at s51:

 

PART IV

SEEKING BUSINESS

 

Prohibition of unsolicited credit-tokens

51.

 

(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.

 

So, if you have not already done so, send Red Castle Recoveries (Gothia) a s78(1) Request along with the £1 fee.

 

They will be acting as Agents for M&S, so are under a duty because of s175 of the Act, to pass this back to M&S:

 

PART XII

SUPPLEMENTAL

 

Duty of persons deemed to be agents

 

175

 

Where under this Act a person is deemed to receive a notice or payment as agent of the creditor or owner under a regulated agreement, he shall be deemed to be under a contractual duty to the creditor or owner to transmit the notice, or remit the payment, to him forthwith.

 

Do also check the small print of the letters from Red Castle Recoveries (Gothia), because I think Red Castle is just the trading names of the following Company:

 

Gothia Limited

 

So, send the s78(1) Request to the Registered Office of that Company, addressed to The Company Secretary. You can look up the current Registered Office address for any Company, for free, here:

 

Companies House

 

Have M&S sent you a s87(1) Default Notice yet? Or has Gothia demanded full payment etc? Was there any PPI added, any charges etc?

 

In summary, start gathering the evidence against them, and run it past the people here to see how it all stacks up. I can say it is highly likely M&S do not have an Agreement. It is even doubful they have an Agreement for the Charge Card, i.e. an enforceable one, so the likelihood of them having one for the later Credit Card is pretty remote.

 

HTH

 

Cheers,

BRW

[UnmoderatetheNet]

What banker says is very much correct.

 

MS/HSBCWILL NEVER BE ABLE TO PRODUCE A ENFORCEBALE CCA FOR THE CHARGECARD TO CREDIT CARD because they messed up. A application form is all you will get and if they won't accept a £1 I'd stop paying them altogether, until they come to there sense and realise they are in such a weak position its not true.

 

I think I read somewhere that HSBS has effectively written off every single chargecard to credit card debt becuase they are unenforceable.

 

Expect bulk debt buying folkls for anyone DCA stupid enough

[Mum2Four]

Thanks for your quick response,

I am evidence gathering as I speak/ type!

(just as well I have plenty of time on my hands )

 

. I have CCA'd everyone,

I actually CCA'd Red Castle (Gothia) but then the ''CCA'' (application form) came from M&S Money,

 

apart from that not heard from M&S Money themselves since February 2009,

when they sent a threat-o-gram..

.. and I replied with my income & expenditure and 'I can only pay £1 a month' letter.

 

Not too sure I have ever had a default notice,

I will investigate my mountain of paperwork!

[banker_rhymes_with]

Hello Mum2Four!

 

Two key things to search for:

 

• s87(1) Default Notice and the Envelope if you have kept it.
  

 

• A demand for payment of sums not yet due, such as a Full Balance if it is made up of Arrears and the remaining Balance not yet due.
  

For example, if you had an Account with a £4,000 Balance and Arrears of, say, £200, then while the Agreement is still live, all they can demand from you is the £200 that is due. The remaining £3,800 is not due, because the Agreement allows you time to pay that off over time, in line with the Prescribed Terms (or as varied if the Agreement allows them to vary them).

 

Clearly, all bets are off for them if there is no properly executed Regulated Credit Card Agreement. That being a document with at least your Signature and the Prescribed Terms (Credit Limit or how it will be set, Interest Rate, and Monthly Payments or how they will be calculated).

 

Forgetting that key issue for now!

 

If you don't pay them, and run up Arrears, then the Act protects you via s87 and s88, to allow you a Carrot and Stick Warning in the form of a s87(1) Default Notice. In that, the Lender must set out, in the Prescribed Way, what you have done wrong, and what you must do to remedy the default.

 

Thus, if your Arrears are £200, then they would say that, and give you the Statutory Time to remedy that default. Depending on when they issued the Notice, that would be 7 clear days or 14 clear days, after Service! So, they have to allow time for Post, then 7/14 clear days, before they can demand the Full Balance of £4,000.

 

The Carrot is the fact that you can remedy the default within the time allowed, after which you can go back to how things were beforehand.

 

But if you don't pay, and they get the Notice right, then the Stick kicks in, and they earn what is known as s87 Rights, such as the Right to Terminate the Agreement and to demand early payment of sums not yet due, such as the £3,800 I mentioned as an example.

 

But if they blunder in and, without having secured s87 benefits, demand the full Balance (£4,000 in this example), then that is only something they can only do if they have s87 in the bag. If not, then they are guilty of doing something that the Agreement does not allow, so they are banging out without s87 benefits.

 

Sums not yet due (£3,800 in this example) are lost forever, and all they can expect to get at that stage would be sums already due (the £200 in this example). That's because they have blown s87.

 

Now, going back to the Agreement!

 

No Agreement, and not even the Arrears are due.

 

I suspect you may soon wish to stop paying them the £1 once the facts all become clear.

 

Cheers,

BRW

Edited May 20, 2010 by banker_rhymes_with
Typo

[Mum2Four]

I have found the only 'default notice' I had

- which was sent to me after I first offered them £1 a month and they refused saying I could 'afford £60

 

I referred them to my income and expenditure sheet (again!) and said I could not increase my payments as it would be unfair to my other creditors (they are one of many!).

 

Further to my thread on the debt collection industry forum http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/259892-m-money-gothia-now.html ,

 

this is what M&S Money claim is my CCA, is it?

It looks like an application form to me plus this is for the chargecard NOT the &More Credit Card!

 

It DOES have my signature (blanked out) and there's a separate printed sheet with some terms and conditions.

[IainHL]

A lovely non-compliant Default Notice! Now, subsequent to that have they ever demanded the full balance outstanding in any way?

[IainHL]

What banker says is very much correct.

 

MS/HSBCWILL NEVER BE ABLE TO PRODUCE A ENFORCEBALE CCA FOR THE CHARGECARD TO CREDIT CARD because they messed up. A application form is all you will get and if they won't accept a £1 I'd stop paying them altogether, until they come to there sense and realise they are in such a weak position its not true.

 

Mum2Four, what UtN says is quite true. Unfortunately it will not stop them trying everything they can to convince you that they _do_ have an enforceable agreement, have "consulted their legal team", etc. Do not believe them.

 

Unfortunately this is one where you will have to be prepared for the long haul, maybe even having to wait up till the 6 years until it is statue barred (which behoves you to stop making payments and send them an "I do not acknowledge any debt to your company" letter).

 

I am one year down the line on this, and many letters have gone back and forth to M&SFS and the two DCAs they have tried so far.

 

You may wish to consider putting this in one of your letters to M&SFS and/or Gothia:

 

Regarding the alleged debt Marks & Spencer Financial Services believe that what they have supplied to me is a legally enforceable document. I do not believe that it is. If they truly believe that it is then no doubt they will take this matter to court. That is their prerogative, but I will vigorously defend any such action. You may consider this to be my final response on the matter, and any future letters from yourself will be filed, but not responded to.

 

I think I read somewhere that HSBC has effectively written off every single chargecard to credit card debt becuase they are unenforceable.

That is a very interesting statement UtN, are you able to point to its source?