M+S ordinary cause citation - old 1st credit Chargecard turned into creditcard **WON absolvitor issued**

[WelshMam2009]

 

Quote

 

seriously fed up

•  

I have been pursuing a similar line with M&S. I CCAd them back on March 20th and it has taken them till 29th April (though the letter only got to us today) to reply.

 

This states that

"As you were made aware by the sample letter enclosed, no new agreement would need to be signed, and any balance from your Chargecard (it was a transfer from a Chargecard that I had opened with them years before) account could be transferred over to your new Credit Card if required".

 

They enclose

T&Cs for the credit card;

sample letter advising of "new product";

sample of card carrier letter advising of activation procedure;

statements for last six years.

 

In other words their case seems to be that I signed up for one product (the Chargecard) and they simply transferred that agreement to another agreement without any signature.

 

I dont think they can do this.

I think there is a thread about this somewhere but I cant seem to find it.

Can anyone help either with advise or directing me to the correct thread please.

 

 

 

 

I'm not sure if it's the one you're thinking of SFU, but check out Angel's thread here...

 

http://www.consumeractiongroup.co.uk/forum/store-cards/169184-marks-spencer-money-req.html

 

SFU, this is from Banker Rhymes With;

 

Quote

Quote:

Consumer Credit Act 1974 Section 51

 

Part IV Seeking Business Canvassing etc.

 

Prohibition of unsolicited credit-tokens

 

51.

 

(1) It is an offence to give a person a credit-token if he has not asked for it.

 

(2) To comply with subsection (1) a request must be contained in a document signed by the person making the request, unless the credit-token agreement is a small debtor-creditor-supplier agreement.

 

(3) Subsection (1) does not apply to the giving of a credit-token to a person—

 

(a) for use under a credit-token agreement already made, or

 

(b) in renewal or replacement of a credit-token previously accepted by him under a credit-token agreement which continues in force, whether or not varied.

I think this was added way back near 1974 to make sure Credit Card bankers didn't just give these out like confetti or, if they already had, then to fall into line with the new CCA 1974 Act, they had to get people to sign up to an Agreement if they wished to avoid falling out with the new Act.

 

There may be some scope here to say M&S have breached s51 if they didn't get you to sign up to a New Agreement when they issued the nice new M&S Credit Cards!

[seriously fed up]

This morning's post included a citation from M&S for the full amount of their credit card.

 

 

I had CCAd them on the 20th March and they replied on 29th April saying that I had signed up for the Chargecard (in 1984) and that any balance from that could be transferred over to the new credit card

(ie as far as the credit card was concerned they didnt need anything - and wouldnt have anything).

 

 

Interestingly they never produced the original Chargecard agreement.

So they simply produced the the T&Cs for the credit card,

a sample letter advising of "the new product";,

sample of the "card carrier" advising of activation procedures and statements over the last 6 years.

 

I replied on 11th May by making a Civil Procedure request for a signed copy of any agreement between us.

Probably not unreasonably I havent heard back yet.

 

the postman today brought a citation for our local sheriff court seeking full payment.

it says that M&S have no reason to believe the agreement is broken,

or that there are any other actions between the parties and that the court has jurisdiction.

 

 

More interestingly it goes on to say that on or about 1st December 1984 I entered into a credit card agreement with them and that they will produce this.

 

 

Two things here -

 

1. first of all it wasnt for a credit agreement but for their Chargecard (and therefore quite different t&cs I would guess) and

 

2. secondly it wasnt included in the bundle of papers they sent me on 29th April.

 

The citation goes on to say that I have failed to maintain payments and they are looking for the full sum.

 

The papers included allow me to apply for time to pay or to defend this action.

 

 

Its all headed

"Form of citation where time to pay direction or time order may be applied for in the cause of" M&S against me.

 

Any suggestions about what I might do about this

 

..

 

Edited May 16, 2009 by seriously fed up

[Sol]

I didn't think you could do CPR in Scotland.

[WelshMam2009]

SFU, did you read this on my M&S thread??

 

Quote

SFU, this is from Banker Rhymes With;

Consumer Credit Act 1974 Section 51

 

Part IV Seeking Business Canvassing etc.

 

Prohibition of unsolicited credit-tokens

51.

 

(1) It is an offence to give a person a credit-token if he has not asked for it.

 

(2) To comply with subsection (1) a request must be contained in a document signed by the person making the request, unless the credit-token agreement is a small debtor-creditor-supplier agreement.

 

(3) Subsection (1) does not apply to the giving of a credit-token to a person—

 

(a) for use under a credit-token agreement already made, or

 

(b) in renewal or replacement of a credit-token previously accepted by him under a credit-token agreement which continues in force, whether or not varied.

I think this was added way back near 1974 to make sure Credit Card bankers didn't just give these out like confetti or, if they already had, then to fall into line with the new CCA 1974 Act, they had to get people to sign up to an Agreement if they wished to avoid falling out with the new Act.

 

There may be some scope here to say M&S have breached s51 if they didn't get you to sign up to a New Agreement when they issued the nice new M&S Credit Cards!

 

I'm sure there's something different about agreements entered into before 1985, but for the life of me I can't remember what!!!

[seriously fed up]

taking the last one first,

Welshmam I have a Barclaycard which goes back about thirty years,

and apparently they dont have to come up with the CCA agreement

- see http://www.consumeractiongroup.co.uk/forum/barclaycard/192516-cca-request-barclays.html .

 

 

But as you will see there,

I was advised helpfully advised how to reply,

as you can see there (rather than me resproducing the whole thing)

 

And yes, I did see this on your M&S thread

- very helpful

- thanks

- and I wrote to them to this effect on the 11th May,

 

 

but the stuff in the post this morning is dated the 14th, so they probably crossed.

 

 

I would imagine they will come back with "ah yes, but you still used it".

 

 

On the other hand, in the letter they sent out in September 2003,

the procedure was not for Chargecard holders to opt in

(ie to apply for the Mastercard)

but to opt out

(to write and say "no I dont want it").

 

 

They actually make that a positive point in their letter

- "I'm sure you will be pleased to know that you dont have to fill in any forms or make any phone calls ...."

So 51 (1) would certainly seem to apply.

 

 

On the other hand,

I am not sure about the meaning of 51 (3).

Might they argue that sending out all these new credit cards in 2003 was covered by the Chargecard agreements already signed so (1) wouldnt apply?

 

And no you cant do civil procedure in Scotland,

but I thought it was worth a try.

 

I suppose the issues are

 

 

I used the Mastercard even though there was no agreement specifically for it (I impliedly agreed)

- they say in their letter of 29/4

"as you were made aware by the sample letter enclosed, no new agreement would need to be signed"

 

 

But the T&Cs for the two agreements will almost certainly be different,

so can one signature support two agreements?

 

 

Another interesting thing that has occurred to me since originally posting is that the account number they quote is the number of the Mastercard.

BUT they say they will produce the original Chargecard agreement

(has to be it if, as they say it goes back to 1984)

 

 

I cant remember,

but I am pretty sure that the account number for the Chargecard and the one for the Mastercard (which they have quoted) were different

 

 

If they have this,

why not produce it when I CCAd them back in March?

Or will they just come up with a blank agreement for the Chargecard?

Edited May 16, 2009 by seriously fed up

[WelshMam2009]

I think there is a big difference between the store card and credit card.

 

Firstly, I'm sure that you could only use the M&S card in their own store whereas the credit card could be used anywhere. Also, my limit on the store card was £500 (I declined any attempts to raise it) and yet they sent me a card with a £5k limit!!

 

You have to argue that the new card was not issued under s51(3) as it was a totally different animal!!

[IdaInFife]

Hi SFU,

 

As above CPR rules do not apply up here.

 

YOu need to send them:

In the XXXX Sheriff Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

Dear XXX

REQUEST FOR INFORMATION

I have received a recent court claim from your organisation.

In order to file a defence and counter claim I require some information.

Given that this matter is now the subject of legal proceedings,

I request you to provide me with the information and documents detailed below.

 

I request that the information should be furnished within fourteen days of the receipt of this letter.

 

 

If you fail to comply, it may hamper proceedings and result in me filing an unnecessary defence or counter claim.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

 

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

 

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.

 

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

d.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

 

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

 

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

 

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

i. Copies of statements for the entire duration of the credit agreement.

 

 

 

3. Any other documents you seek to rely on in court.

 

I must advise you that if the information is not forthcoming,

it may delay or frustrate the equitable resolution of this matter and result in unnecessary cost for both parties.

Yours sincerely,

XXXX (type, don't sign).

 

I would suggest sending special delivery,

 

Can you type or post up the full POC's ?

 

ida x

[seriously fed up]

Thank you for the advice, and for being so quick. Really appreciate it. Just some points of clarification

 

 

Ida, POCs? If I knew what they are I would post them. Can you advise

 

 

Re the letter to them,

should I add that I want a copy of the agreement that I SIGNED with them?

Or is that when an executed credit agreement is?

 

 

Welshmam

- I was being devil's advocate there

(work out a defence by thinking out how they might attack

- and it does seem to be this way as they say they are going to produce the 1984 agreement which has to be for a Chargecard).

 

 

I take all of your points and you are quite right,

the Chargecard was quite a different thing

- you could only use it in M&S and the credit limit on it

(I think mine might have been £750) was a fraction of the MasterCard

(which kind of backs up your point about preventing bankers handing these things out like confetti

- but as their covering letter shows you actually had to take avoiding action not to get sent one).

 

 

I would also be willing to be that there are material differences in the T&Cs for the Chargecard and the MasterCard

(which makes it all the more interesting that they havent sent a copy of the Chargecard agreement they say they have, and only a copy of the current T&Cs).

 

 

On the other hand there is section 66 of CCA which says

 

 

66.—(1) The debtor shall not be liable under a credit-token agreement for use made of the credit-token by any person unless the debtor had previously accepted the credittoken, or the use constituted an acceptance of it by him.

(2) The debtor accepts a credit-token when—

(a) it is signed, or

(b) a receipt for it is signed, or

© it is first used,

either by the debtor himself or by a person who, pursuant to the agreement, is authorised by him to use it.

 

Plainly if I hadnt used it, we wouldnt be here.

So that, I suppose takes us back to "what agreement"?

[IdaInFife]

1. particulars of claim

2. yes it is

 

 

Ida x

[citocoms]

I am no expert mate, but I too have a chargecard from M&S, I got it checked out and I was advised yesterday that it had a major breach and two infringements.

 

I am waiting for the report, but pending this I believe this will make it unenforceable.

 

The issue was around Interest/APR for cash advances (apparently you can get £50 emergency cash advances with this card: was news to me).

 

You need to take advice mate, CCCS or CAB, chances are they are bluffing but you need to be brave to rely on that, and you need to be able to defend their action in court.

 

This link might help; maybe even pm the guy.

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

Sorry I cannot help more, hopefully some one who knows more will help you.

[seriously fed up]

POC attached in these two files 1. POC1 picture by soccerdoc - Photobucket 2. POC2 picture by soccerdoc - Photobucket

 

This is civil procedure and doesnt apply in Scottish law.

 

 

I have though (in another thread) been guided to a similar procedure in Scottish law and will be writing to them in those terms.

 

However,

i was interested in your view that M&S cards have a major breach and two infringements .

 

 

Its been suggested to me that by sending Chargecard holders a Mastercard they could be said to be in breach of section 51 of CCA 1974 which prohibits sending "credit tokens" without the request of the debtor.

 

 

M&S launching their credit cards in 2003 would certainly seem to fall foul of that.

On the other hand, we did use them so it could be said there was implied agreement.

 

 

This, it seems to me, could be the way they are approaching things in my case,

as they say in the citation that they will produce the Chargecard agreement.

 

So it probably moves to whether they can simply transfer my agreement to the Chargecard T&Cs to another Mastercard agreement without any further signature

 

 

- in other words there is a Chargecard agreement, which they claim to have transferred to Mastercard. Can they do this?

 

I dont know if either of these were what you referring to, but, particularly if they are NOT, I would be very keen to learn.

Wouldnt like to rely on it being a bluff as they will have incurred additional costs taking it this far.

Thanks for your help and advice.

[WelshMam2009]

 

I could be wrong here, but I'm wondering if the intention of this clause was more to do with fraud eg what if the card/token was sent and used by someone else because it was lost in transit...who is then liable???

 

It's natural to explore all avenues, and I'm still learning like yourself, but I would still be referring back to s51(3) as the card shouldn't have been issued in the first place.

 

As I see it, we all held charge cards and in effect M&S terminated those agreements. They would be on far firmer ground had they insisted their customers returned a form "opting in."

 

I'm not sure if it was the Debenhams card that did this fairly recently and had their knuckles rapped for it. Will do some digging for you later today and see if I can come up with anything.

[seriously fed up]

Yes, completely agree. I suppose I am looking for certainty but if we had that we woudlnt be going to court to see which is the more important - that they issued the card wrongly (and do they have a legal agreement for the new card?) or that by using the new card we impliedly accept the conditions. On the other hand there needs to be legally executed agreement - even 1st Credit seem to understand that point.

If you can follow up on your knowledge of Debenhams that would be great. I followed up a bit on Debenhams as well and came across the following-

 

1. BBC NEWS | Programmes | Moneybox | Store cards may become credit cards - which is from 2004, so this isnt a new problem, but as the story observes the law is unclear.
   
2. However this (about Debenhams) is a bit more interesting - Store Cards - Moneyextra.com guides - see the third paragaraph of the section headed "Can my store card become a credit card?" The OFT site says much the same thing (The Office of Fair Trading: Clearer store card conversion for consumers). I would bet that M&S didnt have a term in the Chargecard that allowed them to do this (just a guess) especially when I signed up in 1984 when I would think M&S saw taking credit cards as the last thing they would do.
   

The last paragraph - The OFT recognises that there may be advantages in replacing a store card with a credit card if the consumer chooses, especially where lower APRs are on offer. The OFT also notes that GE, in line with principles of responsible lending, has taken care to make a proper credit assessment of individual cardholders being invited to change to the credit card and that initially credit limits have remained the same. " -

M&S of course just sent the thing out and you had to "opt out" rather than make a request (as I said this is confirmed by a letter in the bundle of papers they recently sent to me).

But I have saved the best to last - The Treasury Committee Report - House of Commons - Treasury - First Report - see paragraph 127, and in particular the reference to new cards only being activated by a phone call. The sample letter makes no reference to any phone call. Also paragraph 128 says "The cards should not be activated without the explicit consent of the customer" (my emphasis), so that undermines a bit the problem I was pointing to re section 61(3).

But of course none of that is law - only government policy, House of Commons reports

[WelshMam2009]

On the letter I had from M&S I've written down the date that I activated my card

[IdaInFife]

http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/195822-m-more-court-papers.html

 

 

if you are needing help then Bettle is just a little in front of you with m&s, I'm sure if you PM'd Beetle, they would help and also Monty on the above thread as well.

 

Ida x

[seriously fed up]

OK thanks Ida.

As you might know, I have pmd Beetle 1234 and Monty 2007 (well you will know about the first one as I copied you in on it). Hopefully between us we can resist this. Did you have a look at POCs that I posted (these were POCs werent they?) If so, was there anything particular about them that you could see?

I have prepared your "information request letter" and it will go in the post tomorrow.

Welshmam, any thing you have re Debenhams'. I hope the stuff that i dug up was of interest.

Thanks again to you both. I will chart progress (or otherwise:roll:) on this thread.

[Monty2007]

Dear SFU

 

Could you clarify (approx) how much they are suing you for?

 

It sounds like an Ordinary Cause Action from what you have said. You should have received a writ and Form O7 (notice of intention to defend) and a form that essentially allows you to admit and pay.

 

From what you also state in your PM I think you should defend so you will need to respond to the Sheriff Court with Form O7 completed and they will charge you £75 for the privilege of defending yourself (outrageous I know!). This is all you need to do for now, the nest stage is the Defence and you have three weeks from the end of the current notice period.

 

If you could post up the writ which will include their Condescendence - their statement in an action setting forth the grounds of action of the Pursuer and pleas-in-law. The Condescendence will be numbered, the first stating that they have the right to sue you in the Scottish courts and the second/third ones stating the details of the writ. When we defend we will answer each of these, failure to do so means that you admit that particular statement.

 

You have posted this up in plenty of time and once you complete and return Form O7 you will then have three weeks to submit a defence and your pleas-in-law. I can help you with this. Could you also confirm:

 

1. If you have a default notice

2. If they have terminated

3. Any fees or late payment charges on the account since you may want to consider a counter claim for these.

 

The Scottish process is very different from that in England jurisdiction but the statues and case laws are the same. You just need to get familiar with the process and I suggest you get hold of a copy of Civil Procedure and Practice by Hennessy, Charles ISBN 0414012836. I found this book very useful

 

I suggest you blank out your personal details and post up the relevant docs, I can then suggest how you may want to defend and what I have done/know with regards to my own case which is coming up for a legal debate on their pleas and my defences.

[seriously fed up]

Hi Monty, thanks for getting back so quickly

They are suing for £12k + expenses

I have posted the first page (form 05) here poem192.jpg picture by soccerdoc - Photobucket and the second page at poem193.jpg picture by soccerdoc - Photobucket for you to have a look. The actual writ is at POC1 picture by soccerdoc - Photobucket 2. POC2 picture by soccerdoc - Photobucket.

Do I simply return O7 at this stage (with £80 btw) and then have 21 days to lodge reasons for defence/pleas in law? Or should I wait and put both in at once?

Do I have a default notice - not really sure. Sorry but I am not good at keeping these things (head just coming above ground, if you know what I mean), but I dont think anything arrived called "default notice". I did get a "statutory arrears notice" from them on the 18th March (same day as the account is marked as having gone to to solicitors, if that's significant at all?) You can see the statutory arrears notice at poem195.jpg picture by soccerdoc - Photobucket. In any event it has an inaccuracy as it says that they have sent this when the last two minimum payments havent been received. I didnt pay them (couldnt) since July 2008. Dont know why they would say that?

However, I have also written them Ida's "information request letter" so if they have sent a default notice, it should be part of that bundle. They stopped adding interest on 18th March and "passed to solicitors" (it says in the statements that they sent to me).

There are £60 of fees in the last few months before it went to their solicitors -late payment, overlimit etc - would you believe 5 of them (ie 5 times 12)? Compared to the rest not a priority imo.

If there is anything else you need to know, just tell me.And thank you so much for your help.

[Monty2007]

Hi Monty, thanks for getting back so quickly

They are suing for £12k + expenses

I have posted the first page (form 05) here poem192.jpg picture by soccerdoc - Photobucket and the second page at poem193.jpg picture by soccerdoc - Photobucket for you to have a look. The actual writ is at POC1 picture by soccerdoc - Photobucket 2. POC2 picture by soccerdoc - Photobucket.

Do I simply return O7 at this stage (with £80 btw) and then have 21 days to lodge reasons for defence/pleas in law?

 

Yes you need to submit form O7 and the Court fee, I would do this in person if you can.

 

Or should I wait and put both in at once?

 

No, you will have plenty of time for the defence and no need to rush

 

Do I have a default notice - not really sure. Sorry but I am not good at keeping these things (head just coming above ground, if you know what I mean), but I dont think anything arrived called "default notice". I did get a "statutory arrears notice" from them on the 18th March (same day as the account is marked as having gone to to solicitors, if that's significant at all?) You can see the statutory arrears notice at poem195.jpg picture by soccerdoc - Photobucket. In any event it has an inaccuracy as it says that they have sent this when the last two minimum payments havent been received. I didnt pay them (couldnt) since July 2008. Dont know why they would say that?

 

Not sure either, if you can find the DN it would help since they may have messed it up which will be in your favour.

 

However, I have also written them Ida's "information request letter" so if they have sent a default notice, it should be part of that bundle. They stopped adding interest on 18th March and "passed to solicitors" (it says in the statements that they sent to me).

 

No disrespect to Ida but it is likely that they will completely ignore your letter requesting information. There are no CPR rules in Scotland and the Pursuer (and Defender for that matter) must submit any documents to the other side and Sheriff that they refer to in their writ or defence.

 

 

If they or you don't then you can't use them. During the adjustments phase the Pursuers will submit an Inventory of Productions which will contain all that they seek to rely on in court

 

There are £60 of fees in the last few months before it went to their solicitors -late payment, overlimit etc - would you believe 5 of them (ie 5 times 12)? Compared to the rest not a priority imo.

If there is anything else you need to know, just tell me.And thank you so much for your help.

 

as above in red

Edited May 17, 2009 by Monty2007
sp

[WelshMam2009]

This is what I had read about the Debenhams Card...note the bit in red!!

 

Link here...16 Jan 2004

OFT demands credit card retreat from GE Capital - Times Online

 

THE Office of Fair Trading has demanded that GE Capital Bank, the UK lending arm of General Electric, climb down over the way it converts store cards into credit cards. The consumer watchdog ruled that GE Capital, which controls more than half of the store card market, managing the portfolios of Bhs, Laura Ashley and House of Fraser, had failed to tell their charge card customers properly that they could opt out of its MasterCard credit card offer.

GE Capital had written to Harrods and Debenhams customers informing them that store cards would automatically be upgraded to credit cards unless they objected. Debenhams, with two million store card holders, provides GE Capital with the opportunity to acquire a 3 per cent share of the UK credit card market.

A spokesman for the OFT said: “Our problem with GE Capital was that the offer did not properly inform customers of their options.”

The watchdog took similar action against Marks & Spencer, the high street giant, last year when it posted its own “&more” credit cards to store card customers, which were ready for use. The Consumer Credit Act 1974 prohibits the sending of a credit token to a consumer unless it has been requested in writing.

GE Capital said the wording of new mailings to Debenhams store card holders would be amended, informing them that they had the right to turn down the credit card.

It also promised to ensure that customers undestood that they could keep their storecards rather than accept a new credit card.

OFT officials also attacked the contract terms of GE Capital’s store cards. They argued that they gave GE Capital the unilateral right to change the terms of the agreement and that this was “legally unfair”. GE Capital has amended the terms to limit how the contract terms can be altered.

Brad Cooper, chief executive of GE Consumer Finance, said: “GE Capital has already made the changes requested by the OFT. This further improves the transparency of a programme, which has been very popular.”

This M&S bit...

 

OFT shows M&S the yellow card - Telegraph

 

See the red bit...did OFT successfully argue this in court I wonder??

 

OFT shows M&S the yellow card

 

 

 

By Kate Rankine, Deputy City Editor

Last Updated: 1:58AM BST 09 Oct 2003

 

 

 

 

 

Marks & Spencer suffered an embarrassing blow yesterday when the Office of Fair Trading (OFT) accused the retailing giant of employing unfair tactics to get customers to switch to its new combined credit and loyalty card.

M&S had written to more than a million people, saying that their M&S charge card would be automatically replaced with its new "&more" credit and loyalty card.

 

 

Under section 51 of the Consumer Credit Act 1974, the OFT successfully argued that it is an offence to send a "credit token" to a consumer unless it has been requested in writing.

M&S, which launched "&more" on Monday, stronglyrejected the OFT's claims. "We do not believe that we acted irresponsibly," said an M&S spokesman, adding: "Our roll-out of the card is unaffected."

 

The retailer believed that it was not contravening the law because it was not supplying a "credit token", but sending a replacement card under the terms of an existing store card agreement.

 

 

However, M&S has now agreed that all charge card customers being sent an "&more" credit card would have to "activate" it before use.

M&S has 5m charge card holders in total. Some 2.6m were selected to have their cards replaced with the "&more" card, and of these 1m had their card automatically replaced. The remainder had to "activate" their new cards.

 

 

The "&more" card can be used in all outlets that accept credit cards. Holders will receive one point for £1 spent at M&S, and one point for £2 spent elsewhere. Points will convert into M&S vouchers.

John Vickers, OFT chairman, said: "Inertia-selling of credit can have damaging consequences for consumers. In this case, Marks & Spencer Financial Services has agreed to take practical steps so consumers will move from store card to credit card only if they positively make that choice."

 

 

From OFT website...

The Office of Fair Trading: Clearer card choice for consumers

 

My card was sent out in Nov 2002, so before all this as I'm sure I wasn't told that I could keep the store card!!

 

Clearer card choice for consumers

 

M&S agrees to amend conversion of store cards to credit cards

PN 128/03 8 October 2003

Marks and Spencer Financial Services plc (MSFS) has changed the way it will offer to replace its store cards by the &More credit card after action by the OFT.

MSFS had sent out letters to many card holders saying that its store card would automatically be replaced by the &More credit card unless card holders objected. Under section 51 of the Consumer Credit Act 1974 it is an offence to send a credit token to a consumer unless it has been requested in writing.

MSFS considers that it was not contravening the law because it was not supplying a new credit token but sending a replacement card as a result of a variation to the existing store card agreement. The OFT view was that MSFS did not have the right to change one type of card into another in this way.

 

 

MSFS has agreed to make changes to its plans. All store card holders being sent the new &More card will now be told that, if they wish to keep their store card, they need take no action. If they wish to replace the store card with the new credit card, consumers must take positive action to activate it. This reduces the element of inertia selling.

 

 

In addition, the OFT has challenged a standard term in the MSFS store card agreement that purports to give MSFS an unrestricted unilateral right to change the terms of the agreement. The OFT considers that this term was legally unfair [see note 1]. MSFS has, without accepting the OFT's view, given the OFT an undertaking that it will amend the challenged term to limit its applicability.

 

 

The OFT is taking no further enforcement action at this time. It recognises that there may be advantages to consumers in having the choice of replacing a store card by a credit card with a lower APR as in this case.

 

 

 

The OFT also notes that MSFS, in line with principles of responsible lending, has taken care to make a proper credit assessment of individual cardholders being invited to change to the &More credit card and on deciding credit limits.

 

 

John Vickers, OFT Chairman, said:

'Inertia selling of credit can have damaging consequences for consumers. In this case Marks and Spencer Financial Services has agreed to take practical steps so that consumers will move from store card to credit card only if they positively make that choice.'

.

NOTES

1. The Unfair Terms in Consumer Contracts Regulations (UTCCRs) came into force in 1999 (superseding the UTCCRs 1994) and apply to standard contract terms used with consumers in contracts made after 1 July 1995. The UTCCRs protect consumers against unfair standard terms in contracts they make with traders.

The OFT, together with certain other bodies, can take legal action to prevent the use of potentially unfair terms. A term is unfair if it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers. Standard terms may be drafted to protect commercial needs but must also take account of the interests and rights of consumers by going no further than is necessary to protect those legitimate commercial interests. An unfair term in a contract covered by the UTCCRs is not binding on the consumer. Ultimately, only a court can decide whether a term is unfair.

2. Part 8 to the Enterprise Act 2002 came into force on 20 June 2003, replacing the consumer provisions of the Fair Trading Act and the Stop Now Regulations. The Enterprise Act improves consumer protection by giving enforcers strengthened powers to obtain court orders against traders that breach a range of consumer legislation; controlling activities such as misleading advertising, misleading price indications, lotteries, sale of goods and services, underage sales, estate agency, misleading health claims, trade descriptions, mock auctions, timeshare, unfair terms in consumer contracts, doorstep selling, distance selling, package travel and consumer credit.

[seriously fed up]

Thanks for going to all the trouble of assembling all this for me. VERY helpful.

Of particular interest is the second one, where it talks about M&S commiting an offence just firing the Mastercards out even though they hadnt been requested. That story is dated October 2003. According to the papers sent me by M&S my chargecard was transferred in August 2003. Moreover the "reforms" referred to in the last story were also October 2003, so presumably my transfer would be included in one of those that OFT complained about.

Presumably if they attempt to argue on the basis of the term referred to in the extract immediately above, it would be possible to argue that this term is unfair.

Over the next week I will be reading up Monty 2007's favourite Book - Hennessy - and composing my response.

Thanks for your help Welshmam - it has been more than useful

[IdaInFife]

none taken Monty

 

ida x

[citocoms]

Seriouslyfedup I have sent you a pm read it urgently, please.

[seriously fed up]

Is this M&S's idea of a default notice

M&S Default notice? picture by soccerdoc - Photobucket

sorry should have noticed it earlier but missed it:rolleyes:

[WelshMam2009]

Nope...that's an arrears notice which they now have to issue under CCA 2006 amendments...think it's a minimum of once a year but mine were being sent every month.