Sigma claim form - M&S CC.- help

[Gallahad]

Hi affirmation, i have just received a claim form from Sigma for an M&S card converted from a store card. All my requests for a copy of CCA have been ignored. I would like to start my own thread for help but not sure how to start a thread if anyone can help.

thanks

G

[Old Cogger]

A recent judgment has highlighted that some store cards may have been improperly issued, meaning that card issuing companies may be unable to recover debts if the cardholder defaults on their repayments. In particular, store cards that have been “upgraded” to credit cards may be affected.

 

The cardholder involved in this case, Diana Mayhew, applied for a Harrods store card by post following a visit to the store. She received a store card from Harrods, which she used. Several years later she received an unsolicited upgraded credit card in the post. She activated the card and used it to make several small purchases. She also transferred the outstanding balance from several other cards to her Harrods account. Mrs Mayhew then found herself in financial difficulty, following which the card issuing company, Santander, sought to recover the debt. By the time the case came to court Mrs Mayhew’s account had a balance of more than £5,000.

 

However, the District Judge in this case found that the agreements between Mrs Mayhew and the card company were not enforceable and that the debt could not be recovered by the company. The full judgment can be read here.

 

Consumers are protected by the Consumer Credit Act 1974, which requires that an agreement must contain certain specific terms in order to be valid. The District Judge found that Mrs Mayhew had not been provided with any terms and conditions, either with the application form itself or when she received the card.

 

The District Judge also found that when her card was “upgraded” she should also have received a fresh agreement from the issuing company. The judge found that the upgrade was a modification of the original agreement. The nature of the card had changed from a card that could only be used at one particular store to a card that could be used virtually without restriction. This change meant that Mrs Mayhew should have received a new set of terms and conditions. As a result of the company’s failure to provide new terms and conditions the debt could not be recovered.

 

During the last few years many store card schemes have automatically upgraded their store cards to credit cards and it is very unclear how many of the customers involved received updated terms and conditions at the time of the upgrade. Commentators believe that many cardholders will be in the same position as Mrs Mayhew. However, the only way to be sure whether this is the case is to carefully investigate each individual cardholder’s personal circumstances.

[dx100uk]

own thread created

 

dx

[Gallahad]

Many Thanks Dx

G

[Guest]

re mike770s post above there, http://www.bbc.co.uk/news/business-17670803

[Gallahad]

Thanks for that ford but it appears I jumped the gun as it was not a converted store card but in fact an application for a credit card which I was persuaded to complete in store.

In view of this I would be grateful if Dx could change the thread title. There are several apparent anomalies which having jumped the gun once i am double checking before posting so watch this space. Sorry guys:roll:

G

[AndyOrch]

Thread Title changed.

 

Andy

[Gallahad]

Thanks Andy

[Gallahad]

Any advice appreciated re summons from Northampton bulk centre for £12,000 M&S credit card alleged debt. The account was never terminated to my knowledge. My CCA request was answered with a copy of a signed application form and 4 pages of terms and conditions. The terms and conditions differ from a two page version sent one year previously.

I received and assignment notice supposedly from M&S which was sent in the same envelope as the assignment notice from Sigma SPV1 based in jersey. HL legal & collections are acting for Sigma. None of the documents mentioned in the POC have been sent with the claim.

G

[Guest]

cpr 31.14 request? cpr 18? see the stickies.

how old is this? any missold ppi?

[Gallahad]

thanks ford, I have sent CPR 31.14 Request. The application was made in 2004

G

[Guest]

any chance poss barred? also, s127 3 cc act (now repealed) would be applicable (but, if signed app form is deemed a compliant agreement, then s127 prob satisfied).

any missold ppi? if so, counter claim on that.

Edited December 6, 2012 by Ford

[Gallahad]

NO poss of barred until 2015. How can it be deemed compliant if the requirements of the CCA regarding information by the statute to be on or attached to the signed document.

How can it be enforceable when when the account was never terminated by the OC?

No PPI .

G

[Guest]

then that would be something to challenge. ie was there a signed doc that contains all of the prescribd terms? as required by s127 3.

was there a compliant default notice?

[Gallahad]

No prescribed terms on application form but 4 pages of terms and conditions which include the prescribed terms were sent when copy of the application form was eventually supplied in response to CCA request. However these are different terms and conditions to those sent months earlier which are only two page version. No terms and conditions were supplied at the time of signing the application.The default notice stated payment to be made 14 days from the date of the document which in fact arrived 5 days later therefore not giving the required 14 days to rectify.

G

[Guest]

then, if the signed doc that they rely on has no prescribed terms then technically there should be no enforcement order as per s127 (3)(4) and the Wilson HL case. they will prob rely on 'reconstruction'. depends on J on the day unfortunately.

is the rest of the dn ok? Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.pdf‎

[Guest]

some further cases for info:

Woodchester Lease CA case, Harrison HC case, Brandon/Amex CA case, re requirement for compliant DN.

Kotecha/Phoenix CA case re requirement for an accurate response re cca request.

[Gallahad]

It has no prescribed terms. The rest of the DN seems ok but gives only 6 days to remedy and not the 14 days required by the act. I appreciate they will probably try to rely on a reconstruction but they cannot reconstruct a "termination notice" that was never sent as this too is clearly a requirement of the act. This seems to me to be my strongest defence.

G

[Guest]

they can't 'reconstruct' a signed doc that needs to have all of the prescribed terms as required by s127 3. they would need to show that there was such a signed doc, and if they rely on that app form which you say has no prescribed terms then they can't. a recon could be acceptable post s127 (3)(4), but not before.

wouldn't rely too much on termination notice imo. dn is prerequisite re termination, and term'n can be implied without an actual term'n 'notice' eg a formal demand.

Edited December 7, 2012 by Ford

[Gallahad]

Unless I have misconstrued it the act makes it clear under "FORM OF NOTICE TO BE GIVEN IN NON-DEFAULT CASES BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED TO

TERMINATE A REGULATED AGREEMENT" That the full amount cannot be claimed unless a termination notice has been given in the prescribed form.

G

[Guest]

hang on, are you talking about a 'non default' case? presume not as you have a DN?

Edited December 8, 2012 by Ford

[Gallahad]

Thanks for putting me right I do appreciate your input and assistance.

G

[Guest]

from what you have said, main issues:

compliance with s127 3,4 required - without which there should be no enforcement order per se.

compliant DN required - cases and statute say that there should be a compliant dn before any enforcement.

accurate cca request response required - if not accurate, no enforcement until.

cc act agreement formalities required.

and anything else?

Edited December 7, 2012 by Ford

[Gallahad]

Thanks Ford that's about how I see it and can only add that the two different versions of the terms and conditions supplied to me could go some way in proving none were supplied at the time of signing. I guess when push comes to shove it will be the judges lottery scenario again.

G

[Guest]

wilson case

'..More particularly, in terms of section 127(3), if an agreement does not contain all the prescribed terms, the court is not to make an enforcement order unless the debtor has signed a document which does contain all the prescribed terms'..

'..Parliament's intention in enacting section 127(3) of the 1974 Act was to make a loan, made under a regulated agreement, unenforceable in certain events. The courts cannot defeat that intention by allowing some alternative means of recovery..'

etc