M&S chargecard-changed to CCard - new CCA not reqd say M&S

[robinredbreast]

Ok ....

 

I've started a new thread for this so that it gets attention for others who may receive the docs I've recd today, which seems to be a new tack by M&S.

 

This acct has been in dispute for 18 mths .. due to M&S sending an application form for a store card (no prescribed terms etc).

 

Advised them that :-

a:- the CCA was for a chargecard and not the credit card in dispute

b:- Either way, the CCA provided does not contain any prescribed terms or reference to them, and is clearly a one page singular agreement

 

Well this has ping ponged for over 1 yr .... they started citing S61(b) as an excuse that the pres terms can be in any other document ...

 

They were corrected that S61(b) is for general terms, and that its S61(a) the part that they need to be worried about - states the pres terms must within the executed agreement itself ...

 

They have just ignored any comments I have made regarding the fact that a store card was replaced by an unsolicited credit card ... until now ...

 

Well their bods in complaince must have been a think tank trying to make up what they can send out to peeps who are up on what they can and cant do ...

 

Today, I have received a letter (by recorded delivery no less !!) from a totally new person dealing with my complaint in M&S, whereby they inform me that the agreement they have sent me is complaint with the CCA74....

 

Saying ....

 

"When M&S Money introduced the &More Credit Card a letter was sent to you giving you the choice whether to accept the crdit card or by using the free phone number provided to opt out .. I enclose a sample copy of the letter sent".

 

"Having decided to accept the new card it was posted toyou, the enclosed correspondence included the varied terms and conditions assosicated with it"

 

"This process was recommended to us by the Office of Fair Trading"

 

They then go on with the usual blurb of .....

 

"The agreement is a single document in more than one piece. However even if this were not so, Section 61(b) of the CCA74 requires that the signed documentembody all the terms of the agreement, other than implied terms".

 

They go to say they have complied with S78 of the The Act, and collection activity will continue.

 

Ignoring the fact that in the first place the CCA sent is a load of cr*p ... and why none of this has been put forward by M&S for over 12 mths ..

 

So what they are saying is that the issue of varied T&Cs covers the replacement of a store card by a credit card .. and as I didn't ring to refuse the card I accepted this.

 

Am I correct in thinking howver that they have not just "varied" the t&Cs, but changed the whole contractual basis of the card ... requiring a newly executed agreement .. not just a new set of T&Cs (which they say was cleared with the OFT!!)

 

e.g ... For one thing a credit card allows the withdrawal of monies for which their must be detailed the relevant interest rate etc, whilst a store card certainly doesn't - thats not a variation of T&Cs but a contractual change to my mind .....

 

• Either way the CCA is for a store card and unenforceable as no prescribed terms
  
• I also have a DN that doesn't give enough time for remedy (but in mind of the new Brandon case not relying on this for now)
  

Your thoughts ... ???

 

Robin x

[UnmoderatetheNet]

Pretty standard response.

 

I'd see what they say to this:

 

Dear Sirs,

 

I write in response to your letter dated XXXXX

 

Your letter is incorrect and frivolous, you are fully aware of legally valid reasons why no payment has been made on this account, namely that the agreement which underpins this account has not been supplied despite a perfectly valid request and furthermore, it is suggested that notwithstanding the failure to supply a copy, the agreement itself is improperly executed, devoid of all prescribed terms and deficient in respect of detail relating to APR, total charge for credit and statements of rights ,remedies and protections as required by schedules 1,2 and 6 Consumer Credit Agreements Regulations 1983

 

Therefore the agreement as outlined in section 65 (1) Consumer Credit Act must be laid before the court to be granted an enforcement order before any further action can be taken

 

It is my view that the court would not grant such an order due to the deficiencies that I have outlined within the agreement, further more this has already been raised with (names of previous DCA's / Bank here) yet I note they have still assigned the account over to yourselves and the absence of any documents disproving my points itself speaks volumes

 

Therefore, I would indeed welcome the opportunity to place this before the court. furthermore should you proceed with the threats to issue a statutory demand or a court claim I will make an immediate application to have it set aside for the grounds outlined above, also I shall refer the judge to this letter when the matter of costs falls due

 

I trust this outlines my position clearly enough for you

 

Yours faithfully...

[UnmoderatetheNet]

oops just re-read you letter not what you was asking.

 

to be fair they cite what ever makes the most sense to them.

 

They are doing what all OC do when faced with an unenfoceable agreement (especially a M&S store card), which is baffle with law.

 

The bottom line is none of what they say will stand up in court, none of it and thats what is really important, they know this.

 

You could argue for years you won't get anything out of them, they are robots stuck in non acceptance mode.

 

Do you have a letter from them stating that they do not have an orinigal agreement?

 

They will pass it round the usual suspects moorcroft, resolution, red castle are the M&S muppets, in which the case the letter might come in handy

[robinredbreast]

Heres a copy of the agreement they sent me ... all those months ago .... !!!

M&S app 1991.pdf

M&S reverse of app 1991.pdf

t&c m&s 1991.pdf

[robinredbreast]

Thanks for your letter and advice Unmoderatethenet ...

 

I think I'll just reply informaing them that in essence what they are promoting is a load of ballderdash .. and put up or shut up ...

[robinredbreast]

Back again ...

 

M&S have replied quoting the same load of balls, pres terms are allowed to be in the t&cs under 61(b) ... etc ..

 

They have now told me that they did not need to have a new agreement executed when they replaced a chargecard with a credit card, as the OFT told them all they needed to do was issue a variation of t&cs document ... can this be right ... surely not ? (even so what they have sent is a load of cr*p anyway ... so makes little difference)

 

Robinx

[cerberusalert]

I think the magic phrase is embodied at the top left hand corner of the 'application'.

[UnmoderatetheNet]

write and tell them if they feel that is enough you look forward to seeing them in court with an application form.

 

The reality is M&S will give up and farm out to a merry go round of DCA's (i'm on my fourth in two years) who will all try and scare you into the same thing.

[merlin100]

What always amazes me is how these firms usually manage to find the Application Form and yet always manage to lose the actual agreement. You would think they were hiding something!!