Arrow/? claimform - M&S Chargecard changed to Credit card

[maureen1]

Trying to help out a family member with this M&S credit card ,I'll give a bit of history.

 

She got the card about 2000/early 2001 paid all the credit owed every month until she became unemployed and spent alot,

however the payments were paid every month but only the minimum so interest kept getting added on up to now its over £10000

and she really cannot afford to pay the minimum ,

 

The statement wants paying by 1st March and it is impossible to pay can anyone give me some advice on how to help her with this situation ?

 

Do you think a CCA request should be asked for 1st ?

 

thankyou Maureen

[harrassed senior]

Yes, given the date this account commenced, a CCA request would be a good starting point.

[Bazooka Boo]

Typical HS going in there guns blazing ( I'll never know how he got to live so long!)

 

A CCA is fine BUT!!!! Speak to them first, explain the circumstances and ask if they will accept a reduced payment regarding the circumstances.

Also if they will stop all interest and all late payment fees or charges, you might have to provide an I&E form to back up what you say (you can be read as family member)

IF they DO NOT agree to your offer of payment, OR they will not stop interest and charges then YES send them a CCA request as HS says.

But I think it is much better to start with the softly softly approach, after all, don't they always tell us that if we get into difficulty paying them to contact them ASAP?

 

If you do this, you MUST do EVERYTHING by letter, over the phone will carry zero weight in court, (unless you can record calls?) You do not have to send anything by recorded delivery,

just obtain proof of posting from your post office counter, this is all the legal proof you require to prove they received your letter.

[maureen1]

Just to add more info to this thread.

 

The CCA has come back today ( i have not see it yet )

but she has telephoned me and said it has her signature on and the date when she took out the card ,

 

what should i advise her to do now?

offer reduced payments ?

the thing is she has in the past 3 weeks had a heart attack so i dont want all this stress on her,

 

what would anyone in this situation do next?

 

thank you Maureen

[Bazooka Boo]

If you can scan & post up what she received then others will be able to look and give their advice, BUT, in the meantime to put her mind a little more at rest whilst she recuperates,

she will ONLY ever have to pay what SHE can afford, NOT what they say she has to pay, if her Income is less than her outgoings,

OR she is on benefits, then the maximum she will ever have to pay is £1 a month.

 

Whatever happens, her health is FAR more important than the trivial issue of money, they cannot force her to pay more than she can afford,

it is the consumer who is in the driving seat now, these fools have written off enough luxury cars in the years they have been driving,

now it is our turn.

[maureen1]

Thank you Bazooka Boo ,I'll get the cca scanned later on tonight when i go to her house,so do you think i should send them a letter saying she will be making monthly payments of £1 now?

is there a letter i could copy on here to offer them that amount ?

She was all in a panic today when she telephoned me thinking theyy were going to take her to court

-i had too calm her down and say of course thery not as your still going to be paying it just less than they say

[maureen1]

oh dear!

Edited March 17, 2011 by maureen1

[maureen1]

Oh dear i might of done that wrong ! how do i add them on here please ?

[cerberusalert]

Upload them to a hosting site such as tinypic and then copy& paste the

 

http://www.steveatkinsonart.com/comersus/store/catalog/JustLike.jpg' alt='JustLike.jpg'>

 

"Just Like That"

[maureen1]

Not sure if i have done that correctly? is this enforceable please thankyou

not sure if you can see but it looks like a application form for the m&s card? so is this a CCA?

Edited March 17, 2011 by cerberusalert
took them off as it's not showing up corectley

[cerberusalert]

Can you rescan the images at their normal size an re-upload them again, those are a little too small to read.

[cerberusalert]

I've uploaded your images.

[maureen1]

Thank you you've been a great help to me tonight

[harrassed senior]

Hi, just got your pm and replied, but see you have managed it - great.

 

Indeed this is the Application Form, but as they state this is probably enough to satisfy the CCA Request, however, it is debateable as to whether it is 'enforceable' in a Court of Law.

 

However, I do not think we should concentrate on that right now, more, we should be getting them all to 'hold off' due to your friends' health.

 

I would write a simple letter along the lines of:

 

We acknowledge no debt to you or any company you may represent.

 

Re: the account number and your friends' name.

 

As a courtesy I am writing to you on behalf of the above named who has signed below giving her authority for you to deal with me at present due to her health issues.

 

'name' has recently suffered a Myocardial Infarction (blind them with science, thats medi speak for heart attack) and is unable to handle any of these matters due to this ongoing, serious health problem.

 

As you will be aware, the OFT has a set of guidelines for you to follow in connectios with your dealings with vulunable people with health issues and we would expect those guidelines to be followed to the letter.

 

Should you require 'proof' of the above, upon payment of £10 from you to us we will arrange for a private medical certificate to be mailed to you.

 

In view of the serious nature of 'name''s health issues we would request that no further recovery action be taken by your company or the original creditor.

 

Sign it if you wish, but also get your friend to sign.

 

That has worked for me in the past.

[maureen1]

Thank you Harrassed senior .I'll post that off this morning and await their reply . Maureen

[Bazooka Boo]

Also that is an extremely poor copy of the agreement, it could also be disputed on those grounds forcing them to provide a legible copy of said agreement.

[Abby25]

Hi there,

 

Firstly, as it contains the correct heading regarding regulation under the CCA74 - it is treated and viable as a consumer credit agreement ... which is what they appear to be relying upon and is great, as what they have sent you is utter and total rubbish.

 

You see, what they have sent you is for a chargecard or storecard - these were all changed (without request and against OFT regs) to credit cards - without a renewed agreement signed by the cardholder. So in essence you have a credit card with no formal signed agreement - which although the debt exists - it is unenforceable in law.

 

Second to which, even if the law permitted the provided chargecard app to represent the credit card - it contains no prescribed terms - so is utter usless on that score too.

 

Now M&S if you use this argument, they will a) say OFT allowed them just to switch card types, and that a letter was sent to the cardholder asking them to ring and cancel if they didn't want their store card changed to a credit card (not true by the way), they will b) also quote s61(b) to you - that the prescribed terms may be included or emboided by ref in another doc i.e the t&cs - its utter crap and designed to blind you with science ....

 

Thirdly, the docs and T&Cs are largely illegible and blurred - which is against the terms under which you requested the docs - and the basis upon which they may be permitted as part of court proceedings.

 

I have been dealing with M&S over an ex store card now credit card myself - and have been in dispute with them for 2 yrs - they have given up the argument, knowing they are beaten - and slopped off .... so any help I can give please shout .. !!

 

As a PS - I have heard rumour that all the M&S chargecards changed over to unsolicited credit cards, have been written off by HSBC , due to the right royal legal cock up made by M&S relating to no new CCAs being signed .... just a thought to keep you warm !!!

 

Abs x:-)

[cerberusalert]

There is one more thing about those terms & conditions, they are not part of the signed document. They don't fit onto it because what you signed had to be posted back.... if you look along the bottom it says 'moisten & seal', then the two edges folded over.

[maureen1]

Hi Abby,thank you so much for coming on and helping my family member's situation.

 

i did think it looked fishy as it said storecard but what do i know that's why when HS said it could be used as a cca i took all those thought's out of my mind!

 

My Aunt has given me her permission to fight them over this if you people think its worth the fight?

 

So what should be my next step ? Any help will be appreciated thank you Maureen

[maureen1]

Also i would like to thank Bazooka Boo and cerberusalert for their input also

 

all help greatly appreciated and needed

 

Thank you Maureen

[Abby25]

You're right Cerbs ... I can confirm (from my own) that the back of the application was the M&S branding, with the return address for the app to be sent (Pre-paid post). Now they in the v beginning foolishly sent me this, along with the front and T&Cs, and when I challenged them re s60/61(a) - the thought they could just say ... ah the pres terms are in the t&cs on the reverse of your app - which we know is an outright lie - as they had already sent me the proof that this wasn't the case. (I have attached a copy of my own reverse, which is from 1991 - but will be similar if not the same to the reverse of your own).

 

Futhermore, pres terms are not permitted to be contained within the t&cs - they must be clear and transparent, and within the agreement itself - which means between page 1 and the final page of signature. Nevertheless, if they are to be found elsewhere, there must be clear reference to this within the agreement doc - but under s61(a) - it really isn't permissible - the pres terms MUST be located within the agreement (which can run to just 1 or be several pages long).

 

So you have some kind of idea of how M&S like to work - their motto is "treat them like mushrooms .. .keep them in the dark and feed them s**t" - unfortunately CAG and the help I have both greatly recd, and been able to give, makes a total mockery of this type of cavalier attitude, and lets them know they are no longer able to get away with such tactics.

 

Moving to your dilemma, the first thing to do is send the in-dispute letter - there is a template in the letters library (I think)- basically challenging them on the document that has been sent - at this time I wouldn't go into to much depth (don't forget the longer it goes on, the nearer you are to statue barred - when it really is game over). Your letter MUST be headed "I DO NOT ACKNOWLEDGE ANY DEBT" - THIS IS ESSENTIAL.

 

Your in dispute letter to them, in a nutshell, simply lets them knows that the document they have sent (alleged as a CCA agreement) is primarily an application form, and futhter fails in its compliance to s60(1) of the CCA74 - and until they send you a complaint agreement then the ALLEGED account WILL remain in serious dispute.

 

A debt can not be pursed whilst in dispute, and whilst there is no enforceable agreement s127 of the CCA74 strictly prohibits and prevents any judicial action being brought.

 

When they reply with their standard cut and paste template paragraphs, come back (if you need help), and I will give as much assistance as I can.

 

Just remember - what they have sent is utter tosh ... they know they have nothing to go anywhere near a court with - but they WILL try and bluff otherwise, hoping that you don't know Consumer Law - and haven't head of CAG .... unfortunately for them .. they're very wrong on both counts ..

 

Abs x 8)

 

PS - don't forget to also look at any default/termination notice sent - if this is defective too - we have a full hand to play with ... scan up for peeps to have a browse over !!!

Edited March 19, 2011 by Abby25
add info

[cerberusalert]

http://www.consumeractiongroup.co.uk/forum/content.php?415-POSSIBLE-Letter-when-a-questionable-agreement-application-is-sent.

[maureen1]

Thanks so much ..letter printed and will be posted Monday .Should i still post recorded or normal post now?

[Bazooka Boo]

You can send that normal post, 2nd class, BUT you MUST get 'proof of posting' from the post office counter for your records, this is the only evidence you will require to prove that they have received your letter.

[maureen1]

Back for some more advice please.

My Aunt has received 2 letter's from M&S today i'll type them out as i have problems showing them on here (they always too small)

dear .........

I write in relation to your letter dated 21st March 2011,the contents of which have been noted.

 

Our agreement is compliant with the consumer credit act 1974.

 

the agreement is a single document in more than one piece.However,even if this were not so,section 61(1)(b)of the consumer credit act 1974requires that the signed document embody all the terms of the agreement,other than implied terms.

 

Section 189(4) of the act provides that a document embodies terms if they are set out in that document or are in another document referred to in it.either way,the agreement you signed conformed to the requirements of the act.

 

Please note that the application and agreement forms are one and the same.Above your signature on the form returned to us ,a statement reads"credit agreement regulated by cca 1974.Sign only if you want to be bound by it's terms.

 

Legislation requiring the form to carry the title referring to "Credit Card or Fixed Sum Loan" was enacted in 2005

 

 

Your comment relation to telephone calls has been noted( I SENT THE TELEPHONE HARASSMENT LETTER OFF AT THE SAME TIME)

However in line with the regulations governing telephone calls M&S Money is compliant under the law to call from 8am in the morning to 9pm in the evening if payment on the account has not been made.We can attempt to call you four times during the day but can only actually make contact once.We are also able to contact customers on Sundays and Bank holidays.

 

As the requested documents have been provided ,our normal collections action will continue.

 

M&S Money believe that your agreement is legally enforceable and as such refute your allegations.

I trust that i have answered your query to your satisfaction.

 

 

 

Any help what to do now? The telephone calls she has told me are calling 10-15 times a day on both house and mobile number ...

Maureen