Help........!! Sigma claim form - and another M&S charge card converted to a CC.

[AndyOrch]

Threads merged Abby

 

Regards

 

Andy

[Abby25]

Thanks Andy ... you're a star !

 

 

Any view ? I'm worried I haven't sent the CPR (although of course, the manager I spoke to, has already admitted that they don't have any Marks docs at all, and would be staying the claim whilst he contacted them.

 

The court told that the judgement isn't automatic from them, but that the claimant has to apply for it - but they said to be on the safe side, and if they don't request a stay, to submit a defence in any event - that way I was covered (they were really helpful to be honest).

 

Abs x>

[MandM]

Hi Abby25.

 

Your 31.14 request can only request docs mentioned or referred to within the POCs. Might of missed it but can't see your POC posted up. Might be best to pop it up word for word (without personals or exact figures ) to assist those looking in.

 

Other docs by CPR18 request - 7 days to respond.

 

M

[Abby25]

Thanks MM ... here it comes .... I have split it into paragraphs and inserted comma's for easy reading, in reality the claim form has this just all running on from each other, with no comma's etc.

 

 

 

Particulars of Claim

 

Part only of monies due under regulated credit agreement number xxxxxxxxxxxxxxxxx Between Marks and Spencer Financial Services Plc, and the Defendant, the benefit of which was assigned to he Claimant on xx/xx/xxxx.

 

The agreement terminated upon the Defendant(s) failure to comply with the terms of the Agreement and/or the statutory Notice of Default, served by Marks and Spencer Financial Services plc.

 

The claimant seeks interest pursuant to section 69 of the County Courts Act 1984, at the rate of 8% per annum from the date of issue continuing at a daily rate of 0.07.

 

 

Rhona Lavender

 

 

 

Just as a head up on this, its a store to credit card - CCA and amp; t&cs sent for store card on iniital request, then when challenged as not pertaining to the credit card, they sent a library copy of revised T&Cs that they said came with the card, and that the revised T&Cs and my use of the ccard, clearly demonstrated I agreed to the switch.

 

Got to laugh havne't you !! But no T&Cs came with the card, or before it was issued, as I have the original letter advising of the change over (with no mention of revised t&cs), and the card carrier with the original card still attached to it ! (this is because I couldn't find it, and asked for a replacement, which is the one that was active).

 

Even so, I have advised then that under Reg 7 of CCA84, modifying agreements - the claimed issue of revised T&Cs was simply not sufficient, and that a new CCA for execution should have been supplied, as the OFT told them. (as they argued that the OFT told them it was perfectly ok to just send out the card with revised T&CS ...

 

And thats just one lie, in my case they sent out 1 copy cca, and then sent another, to support their s61 B re presc terms claim). However the 2nd copy was clearly amended to infer that the T&C for the store card were on the reverse of the app .... BUT the very first copy of this doc they send clearly showed the reverse of the app was illustrated as just a pre-paid addressee for the submission of the app/agreement to MS in Chester for processing.

 

 

They just gave up in the end .... and sold it on ...

 

 

Abs x

Edited July 27, 2012 by Abby25

[SkemDosser]

Claim for a partial claim of interest (£299.99) since assignement to Sigma SPV (HL Legal are dealing) !!

 

Issued Northampton Bulk, on 10 July 2012, recd Friday 13 July (don't say it !!!), acknowledged on 14 July 2012. I actually rang them on 13 July 2012, and spoke to a manger, advised him what the dispute status of the alleged account was, etc.

 

He advised that he was going to get the claim stayed until they could review the docs (after trying to get me to admit the debt !) - following which they may sell it back to the OC !

 

Now this is where I thnk I may have made a boo boo .... I (to be extra helpful and a bit of a know all I suspect !!), have just yesterday sent a copy of the agreement provided to me by Marks (which was for a store card, then converted to a credit card) - to show how carp it was. And also a copy of my original letter to them following their pay up, we know of no dispute standard letter, saying it was not acknowledged and disputed, and the basis of dispute. With a covering letter FAO the manager, stating that upon the enclosed docs, and proof being provided of an unenforceable debt, any further pursuance would be cited as frivilious and vexatious and robustly defended, to which I demanded that their claim be immediately withdrawn. Any issues with what I have done .... have a thrown a clanger ..... I provided what I expect M&S would provide them with, whom they stated they were to contact for a copy file of the account and dispute ......

 

Which discusses the fact that a CC store app (with no presc terms), can not be utilisised for an unsoliicted CCard - furthermore to rely upon the storecard CCA and alleged revised T&Cs, which I DID NOT receive, in place of a new CCA, is very bogus as per Reg 7 of CCA84 modifying agreements, which demands a new CCA and T&Cs be issued under a modified agreement (but I haven't mentioned I also have a VERY duff DN to boot !).

 

Anyhoo, I have acknowledged on line and also phoned the court. They have told me that there is a 2 week backlog on correspondence, so the stay rerquest may not be processed until 1st week in Aug. I have until 13 August to submit a defence.

 

Do I also need to issue the CPR (is it 13 ?), or do I just submit my defence if not stayed by beg of August ?

 

Also, has anyone a template store card to credit card, duff DN, defence I could borrow ..... as this is my first court adventure, and a little un-nerving when you don't know the protocal etc ... so ALL comments and guidance very welcome ... !

 

Abs x

 

Well Abby you providing the claimant with paperwork they should have themselves is a rather 'unconventional' way to go about things lol but I don't think in this particular case it will be too onerous. It's a case of nipping these claims in the bud by procedure now, I can't see HL having any intention of taking them anywhere near formal court proceedings [they are clearly bozos, but surely even they are not that daft].

 

HL may be saying they have to go back to the OC now for additional info and paperwork [a howler of an admission anyway seeing as they have already commenced legal action] but you know what, another hunch of mine tells me these accounts were sold for peanuts by M&S in a 'buyer beware' fire sale. In all likelihood the paperwork on these disputed debts has now been destroyed or at the very best shipped off to some storage facility in Latvia. Now these accounts have been sold, M&S will not want to spend a single penny on retriving paperwork for chancer, bottom feeding DCAs...so the reality will be HL having to make do paperwork-wise with exactly what they currently have...sweet FA.

 

I don't think there's anything lost by putting in some CPR requests even though the chances of getting anything back are now clearly zero. You can at least say you've followed procedure as closely as possible if push comes to shove. I'd only allow seven days for a response though and get the defence in sharpish after that. Personally I think the more defences that go in over these claims the better; it will focus HLs mind and force them to review their strategy sooner rather than later. Once they start staring at a pile of potential court fees and strike-out cost liabilities, they will start their damage limitation exercise. It's a case now of hanging in there and sticking the boot in as often as possible until they reach that point

[MandM]

They just gave up in the end .... and sold it on ...

 

 

Abs x

 

And you can bet that this lot will just give up and sell it back lol.

 

Get CPRs off to them. Be mindful of your dates and be ready to put your defence in. Don't take their word that it will be stayed. They're just after the default win and without all of the correct info from the OC that's about all they can hope for at this stage. They won't want a fight i'd wager

[Abby25]

Thanks guys for looking in ..... I know what a bozo re providing the copy CCA - I just wanted to show them that what MS had provided was utter garbage, hoping on recipet they would just give up, knowing there is no mileage in pursuing the claim. !!

 

So, send off the CPR and mark it they have 7 (working of calender days ?) to respond. Is my CPR that I have posted up ok for sending off ?

 

Call the court next week and if no stay recorded - start constructing my defence and get it in pre D Day. (I have from 2 weeks Monday coming - 13 Aug 2012).

 

 

I have no idea how to begin drafting a court worthy (in court language !) defence on this, although I know what I am defending on.

 

Anyone have a template, or guidance on how I construct ?

 

As you know we have a ccard that a compliant CCA can't be provided for (all the sent was the copy of the old charge card app/agreement (that had no pres terms in it), a copy of the t&cs for the store card, and then MUCH later, a copy of the credit card t&cs (which I did not recieve and did not accompany the card on receipt).

 

I also have a VERY duff DN - ie remedy within 14 days of the the notice, not in prescribed format re the bold highlighting where required, and other bits - do I include this in my defence ?

 

Abs x

Edited July 27, 2012 by Abby25

[MandM]

OK. Just looked back so this is a very small amount so undoubtedly small claims. Just CPR 31.14. Don't think CPR18 can apply.

 

But, 'yes'. 31.14. Watch the dates and don't put too much emphasis on producing your defence in 'court speak'. You certainly won't be facing any high flying barristers with this at any point.

 

Put something together and post it up and keep an eye on the similar threads running with the same or similar issues to yours.

 

Mike

[Abby25]

Aye Aye Mike !!

 

I'll get the CPR off today - I'll also include the 7 day period in the heading, again is this 7 calender or working days ?

 

I'll take a look at other defences, and then base mine around their format ... and it would be great if you and others would be kind enough to give it the once over for me !

 

Thanks for your time and assistance x

 

Abs x

[MandM]

Aye Aye Mike !!

 

I'll get the CPR off today - I'll also include the 7 day period in the heading, again is this 7 calender or working days ?

 

I'll take a look at other defences, and then base mine around their format ... and it would be great if you and others would be kind enough to give it the once over for me !

 

Thanks for your time and assistance x

 

Abs x

 

As far as I'm aware 7 days is 7 days (not working). Quickly follow with a reminder after the 7 days when they don't comply giving a further 7. All recorded post. Keep the pressure on, they'll bend I'm sure.

 

Mike

[Abby25]

Will do ... 1st CPR 31.14 off today - 1st class recorded.

 

I've also just rung the court to check the stay position - they have said that they are only working on the 12 July - so I will need to call back next week to see if its been processed.

 

Abs x

[MandM]

And keep a note of your time and costs. Might be billing them later on down the line lol.

[Abby25]

The only bug in this is I go away for a week on 11 Aug - which would be within the 2nd 7 day time frame they would be given - flaming typical !

 

If they haven't replied by the end of the 1st 7 days, and the court confirm no stay on record - I shall have to get my defence in I think (going to have a go later on and post up for comment !). If so does that mean that I don't write to them giving a reminder for another 7 days ? Or what is the best thing to do ?

 

Abs x

[MandM]

Get your defence in. Put them on the back foot. Keep it simple and to the point.

 

They may ask you to agree to an extension for a further 28 days. If they do it's up to you to confirm this to the court. Get in writing and attach it to your notice to the court.

 

Mike

[MandM]

And have a read of this >>>>> http://www.consumeractiongroup.co.uk/forum/showthread.php?241827-Legal-Action-how-to-start-off.-IMPORTANT-IF-YOURE-BEING-SUED

 

Mike

[Abby25]

Thanks Mike ... off for a bit of reading ... will catch up later this pm with what I have !!

 

Thanks again for your help .... as my first flurry with court procedures I'm in the dark with it all .... so you are being a fantastic sounding board and source of knowledge !!

 

Unitl a bit later .... over and out for now .... Abs xxx

[SkemDosser]

Hope you haven't misread and thought I was calling you a bozo Abs...I was refering to the [supposed] solicitors firm HL

 

Good defence put up by Andy recently here :

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?353605-Sigma-SPV-1-(HSBC)-v-myself/page2

[Abby25]

No Skem .... I didn't think that at all ... but if the cap fits !!! ( I really could kick myself, but was trying to force them early doors to stop the insanity !). I'll give some good reading to the suggested bits .... and come back for comment on what I've cobbled together !! xxxx

[Abby25]

Hey gang,

 

How does this look ... as always, comments, points, corrections - ALL greatly welcomed ...

 

 

 

Particulars of Claim

 

Part only of monies due under regulated credit agreement number xxxxxxxxxxxxxxxxx Between Marks and Spencer Financial Services Plc, and the Defendant, the benefit of which was assigned to the Claimant on xx/xx/xxxx.

 

The Agreement terminated upon the Defendant(s) failure to comply with the terms of the Agreement and/or the statutory Notice of Default, served by Marks and Spencer Financial Services plc.

 

The claimant seeks interest pursuant to section 69 of the County Courts Act 1984, at the rate of 8% per annum from the date of issue continuing at a daily rate of 0.07.

 

 

 

DEFENCE

 

1. Paragraph 1 is neither admitted or denied with regards to the Defendant entering in to an Agreement referred to in the Particulars of Claim ('the Agreement') the Claimant has yet to disclose any Agreement. Furthermore any claim for partial monies is averred Contrary to s35 of the County Court Act 1984 s35 Division of causes of action.

 

2. Paragraph 2 is noted with regards to termination of the alleged contractual Agreement , the Defendant has no knowledge, therefore the Claimant is placed to strict proof there of.

 

3. Paragraph 1 is denied with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

© show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

 

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

5. On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974.

 

6. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief

 

 

 

How does that sound ? (thanks to Mike for pointing me to the right template) ....

 

Abs x

[Abby25]

any guidance anyone ? x

[SkemDosser]

any guidance anyone ? x

 

Looks good to me Abs- that's pretty much what I'll be using soon. I'm giving this lot the opportunity to discontinue this week in the absence of any viable documentation and information regarding the claim being presented to me or the court, then banging the defence straight in along with a complaint to the SRA. No real point in messing around anymore IMHO. No proper paperwork will ever be forthcoming from HL, I'm sure of that now; they now need their minds focussing on winding up these cases.

[Abby25]

Hi Skem ... thanks for looking in and your help x

 

Yep, the letters I sent them with the copy charge card cca, fully discussed what the issues were i.e Marks want to rely on the cca for the charge card (that doesn't have any pres terms in it anyway) in support of the credit card, and that I want a CCA for the credit card, which Marks have admitted they can't provide, as one doesn't exist.

 

As I say, the mgr I spoke to said they were going to stay the claim, but I don't want to take any chances .... so I also sent off my CPR31 yesterday by RM .... and if nothing recd, or notice of discontinuance, or a stay with the court - I'll submit the above defence on the MCOL website by the 11th (although 13th is my end date for sub of a defence but I;m away then).

 

We'll see what happens .... as soon as I hear anything, I;ll post up here to let others know how they are dealing with these.

 

Abs x

[debbbbsy]

Hi,

 

This case has already been dealt with through the courts, although it was not in a high court it still allows for a president and can be referred to in any future cases. I have spoken directly with the OFT and they recognise that "Upgraded" storecards are not enforceable in court.

 

http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/16.4.12_santandermayhewjudgement.pdf

 

http://www.oft.gov.uk/news-and-updates/press/2004/09-04

 

http://www.consumeractiongroup.co.uk/forum/content.php?867-Has-your-store-card-been-automatically-upgraded-Hot-News-for-you!!!

 

http://www.bbc.co.uk/news/business-17670803

 

The reason it cannot be enforced is that the Terms and conditions of a storecard and a credit card differ in so many ways, where & how you use the card and also the interest rate. These changes rendered the account unenforceable as the lender could not rely upon the original terms and conditions of the storecard agreement should the consumer default.

 

At this stage, I defended a cliam made by Howard Cohen in 2009, the best form of defence is attack. Make the Claimant fully ware of your intentions to defend & why, give them the opportunity to discontinue...if not they will be liable for all your costs.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?228768-Howard-Cohen-GE-Money-discontinue-claim

 

Debbie

[Abby25]

Thanks Debs .... thanks for looking in !

 

I have included in my letter to them (stating the reasons for the dispute), that it is now proven that they are in full possession of the facts of the dispute, and if they fail to immediately withdraw their claim and seek to pursue the matter via judicial proceedings, their claim shall be robustly defended, cited as frivilious and vexatious, and will result in a counter claim for damages and all costs.

 

Hoping they fill their pants with that .... but even if they do call my bluff and proceed, I have enough to blow them out the water ...... including correspondence from Marks where they lied about the approach OFT took re the conversion, and what was supplied with the new card ... albeit the fact they have admitted there is no CCA for the creidt card should nail it on its own.

 

HL in the phone call tried to say there was no CCA for the credit card, as providers only have to retain docs for 6 yrs post application .... !!!

 

What a crock even if there were a cca for the ccard itself .... its 6 yrs after cessation AFAIK !!

 

Then when I enlightened the MANAGER who told me this, that he mis-understood, Marks had confirmed there WAS no CCA, as one was never executed or provided for the card, you could hear him shifting uncomfortably in his loafers !!! At that point, he tried to get me to admit to the debt .... foolish boy !!

 

The Mgr told me the claim woudl be stayed, until they had a chance to review the docs and matter, however, to be on the safe side, I acknolwedged the cliam, have issued them with a CPR request, and have my defence ready for submission if the swines don't stay before I need to submit (13 Aug).

 

Hope you think this is the right way to go, and will post up the vey next development for all to review.

 

Abs xx

[debbbbsy]

Hi,

 

looks as though you have made your point, but they have only stayed the claim and it can stay this way until they decide to have another go. I would suggest a letter demanding they discountinue the claim, that M&S have already admitted that no agreement exists or has ever existed for the credit card they are referring to, and the claim is unenforceable.

 

Don't assume that they will play fair.

 

If they have failed to respond to a CPR request, inform the courts and request thet the claim be struck out.

 

After they discontinued the claim against me, it was passed back to Santander, they still tried it on but I replied to every letter, they even passed it on to another DCA, they quickley backed off when they were told HC had discontinued a claim. I recieve a yearly statement, but they have ceased all attempts to force me to pay.

 

You are empowered with knowledge. If you ever speak with someone on the phone who 'misinterprets' consumer law, simply advise them that they need retraining. I guarantee you the converstaion will end abruptly.

 

Debbie x