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

[maureen1]

Bump any one help ?

[Abby25]

Hi,

 

If the agreement is in more than one piece i.e more than one page (as they infer) then clear reference must be given to that in the signed agreement, i.e a clear association with all pages, numbered etc.

 

If pres terms are to found anywhere outside of the signed agreement, the agreement must make ref to them (even then its doubtful it would be construed and allowed as a correctly executed agreement).

 

In your case, neither applies - the CCA provided appears self contained, inc the signature at the bottom - there appears to be no refe to any other document either.

 

61(b) they quote to support their claim is only relevant to GENERAL terms which may be emboided in another doc - NOT prescribed terms

 

61(a) (which they obviously don't quote) dictates where prescribed terms must be located, which is within the 4 corners of the agreement, which can be 1 page (in this case) or run to several pages. If the agreement consists of more than 1 page, then clear ref must be made to such and a clear relationship between all the pages i.e page number, ref etc.

 

They also, have you noticed, not told you WHERE, the pres terms may be found, just that they can be embodied in another doc - they have not explained why or how this relates to your request .... so I would push them on this ... make them tell you where the pres terms are - as it stands now they appear to be concealling their location from you wouldn't you say....

 

So, there we have their argument regarding where the prescribed terms are located addressed.

 

Furthermore, you may want to make reference to the fact that the agreement to which they are going about where things may or not be located, isn't actually relevant to your request - as you asked for a copy of the credit agreement for the credit card they are chasing .... yet they have sent you one for an old charge card ... completely different animal ... Put this to them .. see what they come back with.

 

I am already way down the line with M&S, so know their tactics, their template letters and how they will try and convince you that they are right and you are wrong ...

 

What they have sent you is unenforceable, and they know it as their reply betrays.....

 

Abs x

 

PS - re the telephone calls, report to the OFT, inc a para in your letter re accepting tele calls and also informing them that you have reported them to the OFT. You may also want to include the paragraph re "doorstepping" too.

Edited March 31, 2011 by Abby25
added info

[maureen1]

Thank you Abs i'll get on with a reply letter to them and see what they come back with

[Abby25]

No probs, if you need any help you know where to find me ....

 

Abs x

[maureen1]

Hi all just a little follow up any advice welcome please,letter received today

 

I write in relation to your letter dated 1st April 2011,our agreement is compliant with the Consumer Credit Act 1974.

the document signed by you our customer is an agreement with the terms and conditions on the reverse.When placed on microfilm and reproduced they appear to be separate documents.

 

We have complied with our duty under the Consumer Credit Act 1974 in supplying documents which fulfill the requirements of the Consumer Credit (Cancellation Notices and Copies of Documents)Regulations 1983(see Carey and ors v HSBC and ors (2009)EWHC 3417(QB)If you allege that the agreement you signed does not comply with the requirements of the CCA 1974 then we ask you to provide full and sufficient details to support the allegation.

 

For your information,the section 61(1)(b) the document embodies all the terms of the agreement which has been taken to mean by the courts that the terms do not need to be on a single sheet of paper but can be included or embodied by reference.

 

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 are one and the same.Above your signature on the form returned to us,a statement reads "Credit Agreement regulated by the Consumer Credit Act 1974"Sign it only if you want to be bound by its terms.

 

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

 

When M&S Money introduced the & More credit card a letter was sent to you giving you the choice whether to accept the credit card or by using the free phone number provided to opt out.

 

Having decided to accept the new card it was posted to you,the enclosed correspondence included the varied terms and conditions of the account.As the credit card was accepted you acknowledged the terms and conditions associated with it.

 

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

 

I can confirm that we have provided in good faith all the information we are required to provide under sections 77 or 78 of the CCA 1974.we have examined this agreement and account and are satisfied that we have a legally enforceable agreement with you.The agreement is evidenced by your use of the account and receipt of the credit funds.

 

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.

 

any help and what to write back now please

[Abby25]

Hi,

 

Told you ... I know what they are going to send you before they do ... !!

 

Now the following is only if your friend does not want to request a payment arrangement, holiday etc - and based on if you want to challenge the agreement held as a whole.

 

So having said that ...

 

With regards to the pres terms being contained within the t&cs on the reverse of the app - refer post 18 - also my previous posts on where the pres terms must be located.

 

Secondly, IF they were on the reverse, then the front they have sent you i.e the bit with your signature on ... must tell you this .... if it doesn't then they are stuck.

 

s61 (b) .. I;ve already covered - s61 (a) refers to pres terms and where they must be found (and no thats not in another document, T&Cs, back of a crisp packet, or anything else they would like you to believe) - but within the four corners of the defined pages forming the agreement (which can be one page or several).

 

Carey they have quoted refers to "reconsructed agreements" (where they claim they can't find the original), so quite why they have made ref is anyones guess ... but I did tell you they just cut and paste template paras, without really understanding what they are saying ... seeing as they have raised it though ... Carey relates to the satisfaction of a s77/78 request with a recon agreement, which means that once it is produced the "dispute" (unless you also dispute the terms or accuracy of the recon agreement) has been satisfied.

 

Problem is they haven;t provided you with a recon agreement have they ... further to which the original of the agreement is reqd for any court proceedins, and under Carey, if the agreement has been varied since inception, which in this case it most definately has ... store card to credit card ... then the original agreement MUST be presented before court ....

 

Furthermore, do a google on the M&S store to credit card .. the OFT did not back their actions at all .. rather the opposite in fact ... changing a store card to a credit card is not a simple variation on terms, it is a whole different animal - messed up but can't admit it.

 

So you simply return the compliment, by refuting their allegations, telling them why, and asking for a true copy of a properly executed agreement for the credit card held.

 

Don't worry about these letters, they sound as though they have been especially penned for you ... but the reality is there is template base that they simply add template paras which may address your point, or may not, depending on what you have raised, and if they have a template paragraph for it - which is why you will over time find repetition of the same paras , letters that are disjointed and don't address your point, but answer a point you haven't even raised for discussion.

 

Abs x

[maureen1]

Hi Abs and thank you for your help,You are definitely right about them they have confused me in this letter by telling me info i haven't asked and completely ignoring my requests from the letter i sent them!I think this is going to turn into a ping pong game with letters going back and forth all the time but my Aunt still wants me to fight them over this so i will continue doing this :xI'll resend another letter again asking them the same info i asked in the previous letter i sent them and ill do my own bit of copy and pasting for good measure

 

Thank you Maureen

[maureen1]

Hi again, received 2 letters on Saturday what should i reply back to them?

 

Dear ************ IMPORTANT-YOU SHOULD READ CAREFULLY

DEFAULT NOTICE

served under section 87(1) of the consumer credit act 1974

This default notice served on you relates to account number ********************

 

You have not paid installments due under your agreement.You are £550.98 in arrears and are in breach of your agreement.

In order to remedy the breach,you must pay total arrears of £550.98 within 21 days of the date of this notice .

 

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH.IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU.

 

Further action referred to above:

On or after the date shown above the company will demand the full outstanding balance on your account and terminate the agreement.

 

Outstanding balance including interest to date £11,355.31

 

 

 

I would like to know what and where do i go from here (My aunt who the M&S card belongs too)Is still ill as she had heart attack so im trying to write and sort this out for her any help please thanks Maureen

[Abby25]

Technically under OFT rules, they are not allowed to default an account that is in dispute - however they do and the CRAs allow them to do this.The DN itself has a few anomolies - but not enought in my opinion to use this as the main part of any defence.Which is ok - as the agreement they have sent is not complilant with s60(1) of the CCA74 - and therefore technically unenforceable in court (s127)If you wanted to reply to them, you could just remind them that the account remains in dispute, and therefore the DN issued is in breach of OFT rules govening collection activities.I did this myself, although the DN I recd was very much bogus with several serious errors, they seem to have somewhat corrected the main mistakes they used to make, with just a couple of minor ones remaining i.e not providing a definite date of remedy, and not making bold and underlining some aspects of the "health warning" - which as I say I do not believe on their own would get you anywhere positive - but ok to use as an add on to any defence surrouding the useless (alleged) copy agreement provided.Abs x

[Abby25]

sorry I am having probs with my posts merging all paragraphs together - hope you can read ok

[Bazooka Boo]

DN is defective as they have failed to specify an actual date, dd/mm/yyyy, wait for them to terminate this account on the back of a FAULTY DN.

[maureen1]

Thank you Abs yes i can read it perfectly fine like it is .I really don't think replying to them and saying anything to dispute this is going to solve anything! They haven't replied to my last letter i sent this so i'm not sure where to go from here..What happens if i ignore them?.......... Or is it best to keep on sending letters backwards and forwards?

 

Also thank you to Bazooka Boo for your input,however the letter is dated 25/04/2011 in the top left hand corner (could they not say it had a date on the letter and 21 days from that?)I really am out of my depth with all this now and appreciate all the help i have been receiving off Abs ,yourself and everyone else on this forum

Thank you Maureen

[Bazooka Boo]

No, they MUST specify an actual date by which you need to rectify the account by, although once they are made aware of the inaccuracy they are then allowed to rectify this by supplying you with a correctly worded DN, so the thing to do is to NOT tell them.

[Duffers Mum]

I would say that out of my debts M&S have been the only one who accepted reduced repayments and stopped all interest, they have entered a default on my credit file, but that is to be expected. I have been paying reduced repayments for almost 3 years now, every year they write and tell me the agreement has come to an end, to which I reply my circumstances have not changed and will they reinstate repayment plan, to which they always have. I am hoping to come into some funds shortly and when I do M&S will be the first (and last) of my debts who I offer a F&F to. They have not farmed it out to a DCA and have never hassled me. I never even bothered to CCA them as my credit card was relatively new so expect it would have been compliant. I would definately write to them and ask for reduced payments.

 

Good luck

[teaboy2]

No, they MUST specify an actual date by which you need to rectify the account by, although once they are made aware of the inaccuracy they are then allowed to rectify this by supplying you with a correctly worded DN, so the thing to do is to NOT tell them.

 

Totally agree with Bazooka here, DO NOT tell them about the defective DN. Once they have sold the account they will no longer be able to remedy the defective DN as the agreement would have been terminated (therefore no longer exists and you can not remedy something that is part of a non existent agreement) when the account is sold. Making it unlawful rescission of the agreement which means they can not enforce the debt and you maybe entitled to damages of up to £1,000.

[Duffers Mum]

Teaboy - when would you bring to the DCA's attention that you were claiming unlawful recission of the agreement then? (just asking as have a couple which have real dodgy DN's and which have now been sold onto DCA's).

[teaboy2]

Teaboy - when would you bring to the DCA's attention that you were claiming unlawful recission of the agreement then? (just asking as have a couple which have real dodgy DN's and which have now been sold onto DCA's).

 

Hi Duffers Mum

 

Once the Original Creditor has sold the account to a DCA on the back an invalid DN, then that is unlawful rescission by the original creditor. As they have sold the accounts to the DCA, then the credit agreement no longer exists, and therefore the DN can not be remedied. So you only inform them of invalid DN and subsequent unlawful rescission once you are certain the debt has been sold to the DCA. and when you do inform them state how the DN is invalid and that as its been sold it can not be remedied as the agreement no longer exists and such selling of the account is unlawful rescission, and qoute the following:

 

"Failure of a Default or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 but it is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd (2003) UKHL 40, Wilson V Robertsons (London) Ltd(2006) EWCA Civ 1088, Wilson v Pawnbrokers (2005) EWCA Civ 147) - but would also give the claimant a claim for damages in the sum of £1000 (Kpohraror v Woolwich Building Society (1996) 4 All ER 119)."

 

So the DCA will not beable to enforce the debts that have been sold of the back of an Invalid DN. If they refer you to this years recent case law, that case law only accounts for accounts that have not yet been sold. Which as they have not be sold the DN can be remedied still. But since the accounts have been sold then the recent case law does not apply to accounts sold on the back of invalid DN.

[Duffers Mum]

Marvellous! Thank you I will await further threat-o-grams

[teaboy2]

Just to make it clear, that although the credit agreement ceases to exist when an account is sold, the debt still exists, its just they can not remedy a DN on an agreement that does not exist and as such they can not enforce the debt in court. So basically if they do sell the account on the back off an invalid DN, it's up to you if you pay the debt back or not and they can still register notes on your credit file though.

[maureen1]

Thank you everyone for your comments,i have taken them on board -so it's best to sit and wait what to do next! how long will it take them to sell this debt to a DCA? I'm still not sure about this date meaning the DN is invalid,the letter states 21 days from the date on this letter,i know BB has said they need to write a DD/MM/YY but i'm worried they will say no the date on the letter is enough ... (i am such a worrier,and it's not my debt )

 

Thank you Maureen

[Duffers Mum]

Teaboy, I thought that it also means the DCA can only collect the arrears stated on the DN and cannot claim the whole balance?

 

Maureen, DN's must have the date the arrears have to be paid by, if thats not showing then the DN is indeed defective. I know what you mean about worrying...its my middle name!

[Bazooka Boo]

Unfortunately once they are made aware of the fault with the DN, they can then issue a correct one, you can thank all those claims management companies for that!

[teaboy2]

Teaboy, I thought that it also means the DCA can only collect the arrears stated on the DN and cannot claim the whole balance?

 

Maureen, DN's must have the date the arrears have to be paid by, if thats not showing then the DN is indeed defective. I know what you mean about worrying...its my middle name!

 

A DCA can claim whatever balance is on the DN be it arrears or full outstanding amount. Either way if no date for remedy is given its defective, and as BB pointed out, if you inform them of the fault on the DN they can remedy it. But if they have sold the account off the back of a defective DN then they are no longer able to remedy after they have sold the account.

[Bazooka Boo]

AFAIK, a DCA won't issue DN's, these are issued by the OC 'prior' to farming it out to a DCA.

 

And the amount stated on the DN MUST be the arrears ONLY, if it is for the full amount this again will make it defective as they will have terminated the agreement before you had a chance to rectify the fault, this is supposedly the whole reason behind DN's so you are able to rectify the account prior to them terminating it.

[teaboy2]

Agreed BB,

 

Was merely pointing out that a DCA can collect whatever is on a DN issued by the OC whether it be arrears or the full amount, as either way the DCA don't care what the amount is for so long as they get paid. But, they can not enforce the Debt in court if the DN is defective (without remedy) by means as you described above in your post or if its defective by any other means.