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

[Abby25]

Yes Debs ... I did advise the Manager that he was wrong re the DPA - who proceeded to shout down the phone and talk over me, that he was GREATLY OFFENDED AND HE HAD WORKED IN FINANCIAL SERVICES FOR 10 YRS .... problem is I told him ..... I'VE WORKED IN IT FOR OVER 20 YRS AND KNOW THE DPA INSIDE OUT ....... that shut him up !!

[Abby25]

Debs, ....... I have given them 7 days in the CPR (but hoping they discontinue when they recd my letters explaining the dispute). Do I need to give them another 7 days though to satisfy the CPR, or after the 1st 7 days have elapsed, can I then inform the court, and apply for a strike out ?

[debbbbsy]

I have my defence ready for submission if the swines don't stay before I need to submit (13 Aug).

 

It is really important that you submit your defence ,make sure it is all on record even if they say they will not take any further action. The court system is so disfunctional, they may attempt to gain judgment by default.

 

If the case proceeds it will be transferred to your local court, and you will recieve an allocation questionairre. if it makes it to this stage ensure you attach a "Draft order Directions". This will be a copy of your CPR request but this time the judge will order them to comply.

[debbbbsy]

Do I need to give them another 7 days though to satisfy the CPR, or after the 1st 7 days have elapsed, can I then inform the court, and apply for a strike out ?

 

No once the 7 days is up, submit your defence along with a copy of your CPR request and proof of service.

[debbbbsy]

Send to the Claimant a very strong letter informing them that they have failed to comply and you have defended the claim in full.

 

Inform them that they have issued a claim on an account that the original creditor has already acknowledged is unenforceable and that they should not have instigated legal proceedings. Give them a full breakdown of your costs so far, as a litigant in person you can charge them by the hour, its just gone up I think its £19p/hr.

[Abby25]

Hey Debs,

 

You certainly know your eggs on the court procedures !!

 

Marks didn't say they knew it was unenfoceable, just confirmed that there was no CCA for the credit card, but that the CCA for the store card (which is completely absent of prescribed terms), and the revised t&cs (which they didn't sent), takes the place of an individual CCA for the credit card itself. And even said that the OFT told them they could to this, which we know is load of cobblers - and which I told them so !!

 

At which point I asked them for a CCA for the credit card, and for their direction within the 4 corners of the agreement they are to provide, where the prescribed terms could be reviewed. Their response was, we believe this is an enforceable agreement, subsequently this account is not in dispute, pay up. (or words to that effect !). I sent them a final letter saying, I wanted a correctly executed CCA for the CC, and until they provided one, I had no intention of any further communiation.

 

And then it was sold to Sigma ...... (poor dears !) ... I will post up at the end of the 7 day CPR period, and just check with you (if ok) that what I am to send the court is ok from your experience.

 

Abs x

[debbbbsy]

As I said, Howard Cohen tried to use a store card agreement to enforce an upgraded credit card, they failed.

 

Sigma will know this, and will hope you don't. Let them know you are aware that this case has already been dealt with. M&S's admission that they do not have a CCA for the credit card is an admission that the claim is not enforceable, there statement that the storecard application/CCA can be used to enforce the claim has already been dealt with by the courts and has been proven to be cr*p.

 

Sigma need to get a refund from M&S.

[debbbbsy]

This was my defence. Short & simple. Remember that Northampton will not even read your defence, they are not interested in the case. Only when it is transferred to your local court will a judge look at the case after the AQ.

 

Claim Number xxxxxxx

 

Defence

I XXXXX am the defendant in this action and make the following statement as my defence to the claim made by CL Finance.

The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR even allowing for the constraints of the bulk issue system.

No particulars are offered in relation to the nature of the written agreement referred to.

A copy of the purported written agreement for the Credit Card account number xxxxxxxx, that the claimant cites in the particulars of claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim.

On the XXXXX 2009, I requested from GE Captital bank Ltd a ‘true, signed copy of my original credit agreement’ subject to the Consumer Credit Act 1974 (Sections 77-79), which is vital to this case.

To date, the claimant has failed to supply this document.

Further to the above paragraphs the defendant is unable to plead effectively or at all.

The defendant is embarrassed.

 

Signed

[debbbbsy]

Some useful stuff

 

Can my store card become a credit card ?

Not if you don’t want it to! The card issuers would only be too happy for your store card to become a credit card giving you more ways and places to spend and thus go into debt and make money for them.

However the law consumer credits act 1974 2006 prohibits the unsolicited sending of a credit token. This was the stumbling block of the botched launch of the Marks & Spencer’s more c redit card in October 2003. M&S Financial services MSFS sent letters to store-card holders saying it was going to automatically replace storecards with a credit card unless they objected.

The office of Fair Trading OFT intervened brushing aside M&S’s claim that it was merely sending a replacement card. The OFT decided that the product was significantly different because &more could be used to buy products in other shops while the old style catrd could only be used in M&S. As a result M&S had to change the launch so that customers wishing to upgrade to the &more card had to confirm that they wanted the card by contacting MSFS while customers who want to keep their store card needed to do nothing. The company also had to undertake to change the wording in its store card agreement that purported to give MSFS an unrestricted unilateral right to change the terms of the agreement.

GE consumer finance began trying to “Upgrade” De and also Debenhams store card customers to a credit card facility in January 2004 and also attracted the attentions of the OFT. As a result GE issued revised terms and conditions specifically stating that the agreement gives it the right to upgrade store cards to credit cards.

Also, some additional points I found when defending,

 

a. There is no signed agreement in existence for the Mastercard xxxxxxxx. The defendant will present a letter from the Creditor confirming this.

· The agreement allegedly entered into on or about the 1 December 1984 is unenforceable under the Consumer Credit Act 1974 section 60 (1) (a)-including, but not limited to, there being no heading saying it was a Consumer Credit Agreement; no credit limit; no details about repayments; no term stating the rate of interest to be applied; no signature by the creditor.

· On or about September 2003, Marks & Spencer Financial Services sent the Defendant a Mastercard (xxxxxxxxx) in breach of the Consumer Credit Act 1974 section 51(1) and committed an offence in that they gave me a credit token when I had not requested this. The Defendant will present a letter from the Creditor confirming this.

b. The above notwithstanding, the transfer without request to a new agreement by Marks and Spencer FS is not enforceable as the Chargecard and Mastercard are so different as to not fall under the protection of the consumer Credit Act 1974 Section 51(3)(a) or (b). In particular the terms and conditions of the Chargecard and Mastercard differed in that

i. The agreement for the Mastercard is for a credit card, while the Storecard agreement was for a storecard.

ii. Credit limits and interest rates for the two cards differed, as did other terms and conditions.

iii. The Mastercard could be used in shops and businesses anywhere which displayed the Mastercard sign, while the Chargecard was restricted to use in Marks & Spencer shops.

c. The purported credit agreement which the claimant will present as evidence , does not conform in form or content to Section 60(1)(a) of the Consumer Credit Act 1974 and as such is unenforceable under section 127(3) of the same act. The Defendant craves that the court uses its powers under section 142 of the same Act and declare that the purported credit agreement supplied by the Claimant as unenforceable.

d. The Claimant on or about September 2003 from Chargecard to Mastercard was an offence under Section 51(1) of the Consumer Credit Act 1974, rendering any agreement between them and the defendant unenforeceable.

[Abby25]

Ooh Debs, you sure are a girl to have on side !!!

 

In my letter explaining to them the basis of dispute, ie - storecard to credit card without the execution of a new CCA, I cited in respect of the credit token aspect, the breach of Reg 7 of CCA84, and also suggested they review the Mayhew case, for further guidance on the legality of the OCs claims. I also made it clear that the CCA for the storecard, was in clear breach of CCA74 s60(1), and clearly a mere application form. As you know I also stated that now they were in full possession of the facts that the claim be immediately withdrawn.

 

I have checked the RM site - and they recd this info on Thursday, I'm trusting that they will well and truly fill their pants, realise what a bucket of poop they have purchased, and discontinue the claim ... if not well ... bring it on .... the hard part is although you know what the issues are, formatting them in a way that the court will accept - to which I thank you Debs, Mike, Skem and indeed all who are helping me !!

 

Lets see what the week brings from the pip squeaks .... !!

 

Abs xx

[debbbbsy]

I have checked the RM site - and they recd this info on Thursday, I'm trusting that they will well and truly fill their pants, realise what a bucket of poop they have purchased, and discontinue the claim ... if not well ... bring it on .... the hard part is although you know what the issues are, formatting them in a way that the court will accept - to which I thank you Debs, Mike, Skem and indeed all who are helping me !!

 

Don't assume anything, these people do not play fair.

 

I also made Howard Cohen fully aware that the storecard application could not be used to enforce the credit card claim after they had issued proceedings.....I sent the CPR request which they couldn't comply with and yet they still chose to continue with the claim. It was only after they recieved the Draft order directions from the judge denmanding they provide the agreement under the reference number referred to on the claim ( storecard & credit card reference/account numbers are different) and I sent them a breakdown of my costs and should they continue with the claim they would be paying me, only then did Howard Cohen discontinue.

 

Debbie x

[Abby25]

Agreed Debbie .... hoping they poop, but if they don't well then they'll have to put their money where their mouth is .... !!! ...... To be continued .......... xx

[Abby25]

Hi gang .... have confirmation of delivery today of my CPR request. They have until next Monday to respond ..... Abs xx

[Abby25]

Hi all ...

 

Well you guessed it nothing in the post ... and still no stay registered with the courts.

 

So I have submitted my defence today (on line), not sure what happens now ??

 

Will update as and when.

 

Abs x

[Abby25]

Just an update, arrived back from hols and not a dicky bird from them, following my defence |(8 Aug) and provision of a separate letter to them (27 July) illustrating and confirming the points of fact and law, that render the alleged agreement unenforceable.

[Almostnormal]

I'm in the same position, just to let you know. Mine is split claim, disputed amount and their appalling lack of evidence (no apparent agreement to show me, no original paperwork, just a bundle of statements and letters they seem to have created after the event along with some other clients case letter (data protection? what's that?!). Defence in, their time is up by a good two or three weeks and yet silence....a tumbleweed moment. Good luck with your case (and mine!) and I hope they get a big fat zilch to show that ineptitude, harrassment, time-wasting and abuse of court are not rewarded!

[Abby25]

Yep, when I rang them to advise that their claim (following my alleged lack of response to their letters - which was untrue), was unlawful as the account was in dispute when sold - they told me they don't get complaint/client files with the purchased debts.

 

When I asked them , what they had based their claim on if they had no docs, they were a bit stumped (and I was talking to the manager of the dept, who was quite rude until he got a bit of his own medicine back), who said he would get it stayed and ask for the docs from MS in the meantime (needless to say, no stay had been submitted by the time I submitted by defence).

 

I sent them a copy of the original bemused DCA letter, within which I had detailed why the account was in dispute with MS, which was based on a CCA for a store card (which had not one prescribed term, apart from the CCA74 regulated heading), and that I wanted a CCA for the credit card that (without my request) replaced the store card.

 

I also discussed the fact that MS tried to firstly claim the CCA for the storecard was also applicable to the credit card (and why that statement was knowingly misleading by them), and then the fact that they claimed the OFT allowed them to do this with provision of revised TC doc. Again I discussed the fact that the OFT said completely the opposite, AND that I was never provided with a revised TC doc (even if that did permit the unsolicited token agreement), and I KNOW I didn't because, I have the original letter saying that the card was being changed to a credit card, with no mention of if you don't want it ring us, or any mention of new TCs or a new agreement, and I also have the origianl card carrrier with the original card still attached to it.

 

Oh, and Sigma meanwhile explained during the call that the split claim, was to benefit me, as if they claimed the whole amount I would face 2-3k of court and legal fees, this way only claiming part interest the fees were much lower, which they thought was fairer to the debtor...... couldn't make it up could you !!!! (and yes there were serious when they said this !)

 

If you have a look back over my own MS thread, you'll see how I handled MS, making them admit that there were not pres terms in the original store card agreement, and that they didn't sent a new agreement for the credit card which was required by law under reg 7 of the CCA - if I can be of any help, just shout as this has been ongoing with MS since 2009 (and several DCAs !).

 

Abs

Edited August 19, 2012 by Abby25

[SkemDosser]

Hi Abby not a great deal happening all round it seems, although an interesting development in bh2362's case that some others may experience soon- HL trying to be clever but being not the brightest bulb in a box of dud fairy lights may well put them in even further mess- can be absorbed here [if ofcourse you're not already up to speed on this thread ]:

http://www.consumeractiongroup.co.uk/forum/showthread.php?353605-Sigma-SPV-1-(HSBC)-v-myself&p=3949432#post3949432

 

The only real weapons dca's like HL have in situations like this, are threats and goobledegook to try and confuse and cajole but they are basically empty words/threats at the end of the day. All I've received back is an illegible app form, a reconstituted assignment notice and a balance amount by way of a CCA request. I'm increasingly sure all that will happen now for most of us with defences in, is that this will drift into stays for the majority of us all in early September. What interests me most of all now, is how to deal with that situation when we reach it

[Abby25]

Will have a read of the link .. thanks Skem ! Yes, a stay would be interesting, as of course they can lift it in the future and have another go .... we need to push for a discontinuance based on the fact that their claim is completely spurious, a waste of both the courts time and resources, with no chance of success.

[SkemDosser]

Yep absolutely agree, particularly as I'm now pretty sure these claims for interest only are invalid in the first place under the County Courts Order 1991 rule 2[3][a], which outlaws such claims where the claim refers to a CCA regulated agreement. Hope to be up to speed on that soon so we can tackle round 2

[Abby25]

yep, I'm not an expert on the legals of split claims etc, but 've caught a couple of silly girls posts (she's excellent on the legals !), where (I think it was SG) also said that they can not do this on a regulated agreement. So thats a reflection on their grasp of reality.

 

In any event, if they attempt to forgo the split and instead go for a hearing for the full amount, they can't provide a correctly executed CCA for the credit card, as one was never issued or executed - thereby they also can not rely upon a reconstructed version, so game well and truly over on that point. And even if (in a parellel universe) they could rely upon the CCA for the store card for the credit card, there are absolutely no prescribed terms within the 4 corners of the CCA provided (in my case at any rate - which was a one page application form). So they are royally doubly scuppered .... IMHO !!!!

 

Be very interesting to see how they proceed ... not withstanding we also have the Mayhew case (which I know isn't precedent as not HC), but still doesn't help their case !!

 

Keeping all posted on any developments my end .

 

Abs x

[Abby25]

Hi all .....

 

just wanted to see for those whom had been issued with the infamous Sigma M&S chargecard court claim for partial settlement, how you were getting on .... since my defence went in to Nampton Court in Aug nothing ....

 

Also can't find ANY of the old sigma threads we started in the summer on this ... very strange !!

 

Abs x

[hammyhound]

I know Abs they all disappeared but all gone quiet since August for me except the request for payment plan letter.

 

Wonder if they will come out of the woodwork after Christmas. If so will send the letter to the court for a judge to have a look at.

 

HH

[AndyOrch]

All back now Abby history recovered, type sigma in the search box

 

Here is yours http://www.consumeractiongroup.co.uk/forum/showthread.php?357893-Help........!!-Sigma-claim-form-and-another-M-amp-S-charge-card-converted-to-a-CC./page4&highlight=sigma

 

Regards

 

Andy

[Abby25]

Thanks andy ..... Hammy not even a payment plan request xx