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

[Monty2007]

Dear SFU

Your writ from McClure Naismith needs to be responded to according to OCR procedure and as you PM'd this needs to be lodged with the Sheriff Court this Monday and copied to McClure Naismith. You can get away with faxing but I would recommend delivery in person.

 

Once your defence is lodged will then have a period of adjustments, the correspondence of which is between you and McClure Naismith and is not copied to the Sheriff Court.

 

The process of adjustments also includes the pleas-in-law and is to enable both sides to focus in on the legal and disputed aspects of the case such that when it comes before the Sheriff he/she will have the final "Record" which should just contain the disputed aspects of the case.

 

Your Defence:

You will see that they have numbered sections to their Condescendence and you must respond in the same way and style.

 

Hence each statement made against you must be replied to with either; admit, deny and/or it is explained that, failure to do so means that you admit that part of their writ.

 

The final part of the defence is your pleas-in-law.

 

The Scottish OCR allow you to simply deny each part of their Condescendence and leave them to provide otherwise, this is not recommended though and I would suggest that you include the relevant aspects of the CCA & SI that will build your defence position during the adjustments phase.

 

Before the adjustments period ends you will also need to file a Rule 22.1 note that essentially informs the Court that you wish to rely on your pleas-in-law otherwise they will be repelled at the Options hearing.

 

I can help you will this later.

 

Three days before the options hearing McClure Naismith will provide the Court and you with the final Record that will contain all the adjustments and final pleas-in-law.

 

With a Rule 22.1 note then the Sheriff will only be able to direct a legal debate or proof before action.

 

You are likely to get a legal debate given the fundamental argument will be the interpretation of the CCA and SI.

 

If you want to post up your defence then I will help as much as possible.

Good luck

[seriously fed up]

FIRST DRAFT

 

SHERIFFDOM OF XXXXXXXXXXXXXXXXXXX

Court Ref. No. XXXXXXX

MOTION FOR THE DEFENDER

in the cause of

MARKS & SPENCER FINANCIAL SERVICES PLC, a company incorporated under the Companies Acts, having its Registered Office at Marks & Spencer Financial Services, Kings Meadow, Chester, Cheshire GH99 9FB

PURSUER(S)

Against

Me residing at where I stay

DEFENDER

ANSWERS TO CONDESCENDENCE

1.The averments regarding the defender are admitted. The existence of jurisdiction is admitted. Quoad ultra not known and not admitted.

2.Denied, as

a.There is no signed agreement in existence for the Mastercard xxxxxxxxxxxxxxxxxxxxxx. The DEFENDER will present a letter from the PURSUERS confirming this.

 

• 
  
  • The agreement allegedly entered into on or about 1 December 1984 is unenforceable in law as it lacks details required by 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 defender.
    
  • On or about September 2003, Marks and Spencer Financial Services sent the defender a Mastercard (xxxxxxxxxxxxxxxx) 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 DEFENDER will present a letter from the PURSUERS confirming this.
    

   

d.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 not to 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 store card.

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 and Spencer shops.

3.Denied, as

a.No Default Notice has been served on the DEFENDER by the PURSUERS.

b.Given that the agreement is not enforceable in law, the PURSUER had no legal authority to require payment

4.Admitted but justified as there is no legal agreement between the parties, and the action has been brought before a Default Notice has been served, as required by law.

PLEAS IN LAW

1.The PURSUER’S averments are irrelevant et separatim lacking in specification, the action should be dismissed

2.The purported credit card agreement which the PURSUERS 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 Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported credit card agreement supplied by the Pursuer as unenforceable.

3.The PURSUERS 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 DEFENDER unenforceable

4.The PURSUERS, by virtue of not having served a Default Notice, are not entitled under the Consumer Credit Act 1974 Section (87) to demand payment of the balance and the DEFENDER craves that the application be dismissed.

Monty, or anyone else, I would appreciate your comments on this. My plan is to finish this off tomorrow (Sunday) evening, print it off and put the

copies in envelopes to be delivered by hand on Monday before midday.

[Monty2007]

FIRST DRAFT

 

 

SHERIFFDOM OF XXXXXXXXXXXXXXXXXXX

 

 

 

Court Ref. No. XXXXXXX

 

 

 

MOTION FOR THE DEFENDER

 

 

 

in the cause of

 

 

 

MARKS & SPENCER FINANCIAL SERVICES PLC, a company incorporated under the Companies Acts, having its Registered Office at Marks & Spencer Financial Services, Kings Meadow, Chester, Cheshire GH99 9FB

 

 

 

PURSUER(S)

 

 

 

Against

 

 

 

Me residing at where I stay

 

 

 

 

 

DEFENDER

 

 

ANSWERS TO CONDESCENDENCE

1.The averments regarding the defender are admitted. The existence of jurisdiction is admitted. Quoad ultra not known and not admitted.

2.Denied, (remove as and replace with "it is explained that")

a.There is no signed agreement in existence for the Mastercard xxxxxxxxxxxxxxxxxxxxxx. The DEFENDER will present a letter from the PURSUERS confirming this in his first Inventory of Productions.

 

• 
  
  • The agreement allegedly entered into on or about 1 December 1984 is unenforceable (remove "in law as it lacks details required by the" and replace with "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 defender.
    
  • On or about September 2003, Marks and Spencer Financial Services sent the defender a Mastercard (xxxxxxxxxxxxxxxx) 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 DEFENDER will present a letter from the PURSUERS confirming this (within his first Inventory of Productions).
    

d.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 not to 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 store card.

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 and Spencer shops.

3.Denied, as

a.No Default Notice has been served on the DEFENDER by the PURSUERS.

b.Given that the agreement is not enforceable in law, the PURSUER had no legal authority to require payment

4.Admitted but justified as there is no legal agreement between the parties, and the action has been brought before a Default Notice has been served, as required by law.

PLEAS IN LAW

1.The PURSUER’S averments are irrelevant et separatim lacking in specification, the action should be dismissed

2.The purported credit card agreement which the PURSUERS 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 Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported credit card agreement supplied by the Pursuer as unenforceable.

3.The PURSUERS 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 DEFENDER unenforceable

4.The PURSUERS, by virtue of not having served a Default Notice, are not entitled under the Consumer Credit Act 1974 Section (87) to demand payment of the balance and the DEFENDER craves that the application be dismissed.

 

Monty, or anyone else, I would appreciate your comments on this. My plan is to finish this off tomorrow (Sunday) evening, print it off and put the

copies in envelopes to be delivered by hand on Monday before midday.

 

Dear SFU

 

Looks good, I have made a few comments in red. Just check that the M&S address that you have used is exactly the same as what they have used in their writ.

 

Monty

[seriously fed up]

Cheers Monty - thanks for this. I have made the changes you suggested and will get it delivered by hand tomorrow (Monday 22nd) .

Btw, I did check their address - probably just as well as the post code was slightly out - G should be C.

If anyone else has any comments in the meantime, I would be grateful - has to be printed off tonight though.

[beetle1234]

Hi SFU...defence looks good and as Monty says you will be able to amend/add/change once you receive next set of docs from McLure Naismith.

 

My defence went in some weeks back so now getting close to the stage where final productions etc go in..

.reading various posts on the forum has been really helpful but without Monty my case would have stalled weeks ago....

he has been absolutely brilliant even although he is busy with his own defence.

 

Our cases do differ somewhat and I cant help thinking that in your case in the absence of ANY signed paperwork you cannot possibly lose this battle !

 

It is crazy for them to expect a court to believe that not even an application form was required when others (myself inc) were asked to complete just such an application form!! Duhhh!!!

 

Anyway good luck and keep in touch....

 

Beetle

[Monty2007]

Thanks Beetle1234. It is good to see everyone helping each other and I have had lots of help over the past few years from experts such as BRW, Rory and many others on CAG. It really is a matter of understanding the legal process although it is less well documented for these cases in Scotland but in practice the law up here is more "defender friendly" since we don't have this terrible "strike-out" which seems to be used as a matter of routine down south.

 

I just hope we all get Sheriff's who are neutral and at least hear and understand the arguments.

 

Did you get your documents in OK SFU?

[seriously fed up]

yes it all got in before midday. Just need to wait to see what they come up with. I expect their brief will want to consult with her clients before responding so not holding my breath.

I also was corresponding with an old friend who was quite senior in the banking call centre trade. His view was that his bank (not M&S) wouldnt go after anyone without a valid CCA (and from what he says they really dont have that many :grin: - and the longer ago it was, the less likely it is). Also he said that when M&S put out their Mastercard without request from the customer, the rest of the credit card industry was "gobsmacked" (his phrase), and its also interesting that once the OFT had hit them over the head, M&S, while insisting that what they did wasnt wrong (would they ever?) did change their procedure.

But for now, its wait and see. I will keep you posted. But for now lets all hope for neutral Sheriffs who see their job as to understand the law and apply it.

[ajs444]

Go for it SFU!!!

All the best, watching with great interest.

[seriously fed up]

I have been having a wee crisis of confidence about the date my Chargecard agreement was signed - December 1984, as the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) allows a creditor, where an agreement was signed before 19th May 1985 to produce "an easily legible statement of the current terms of the agreement or security as the case may be insofar as they are known to the creditor or owner where, due to an accident or some other cause beyond his control, the creditor or owner does not have in his possession the executed agreement or security instrument or any copy thereof" - in other words not the original document (not even with a signature ).

To be quite clear, the problem is that M&S admit that they dont have a signed agreement for the &more card they are taking the action for. They claim that they dont need this and can rely on the agreement for the Chargecard (signed in 1984). So, they say they will produce this in court. BUT, what if they rely on Cancellation Notices etc on the basis that the agreement was signed in 1984 and the above terms applies. No agreement for &more and an "easily legible statement" for the Chargecard. I would still like an opinion on this to see if they could pull a stroke like this in court.

However, I was advised in PM by Monty to ask Curlyben (remember him:) - now on Legal seagulls if anyone wants to find him). So I registered and posted the question, along with my answer to their condescendence. He just went straight by the Cancellation point and advised

"At the end of the day this action is based on the &more CREDIT card, so an agreement for the charge card, no matter when it was signed, will not prove cause of action in this case. If they cannot produce a compliant agreement you have a very clear s127(3) defence and I would seek a ruling under s142."

I have therefore thinking about amending my pleas in law to include a new term 2 (ie the new term is 2 - 1 has always been there and what were 2-4 are now 3-5). In the event that I do amend the plea it would look something like this

ANSWERS TO CONDESCENDENCE

1.The averments regarding the defender are admitted. The existence of jurisdiction is admitted. Quoad ultra not known and not admitted.

2.It is explained that, as

a.There is no signed agreement in existence for the Mastercard Credit Card 1005108227834649. The DEFENDER will present a letter from the PURSUERS confirming this in his first Inventory of Productions.

 

• 
  
  • The agreement allegedly entered into on or about 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 defender.
    
  • On or about September 2003, Marks and Spencer Financial Services sent the DEFENDER a Mastercard Credit Card (1005108227834649) in breach of the Consumer Credit Act 1974 Section 51(1) and committed an offence in that they gave the DEFENDER a credit token when this had not been requested by the DEFENDER, as required by Section 51(2) of the Consumer Credit Act 1974. The DEFENDER will present a letter from the PURSUERS confirming this within his first Inventory of Productions.
    

   

d.The above notwithstanding, the transfer without the request of the DEFENDER to a new agreement by Marks and Spencer FS is not enforceable as the Chargecard and Mastercard are so different as not to 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 significantly in that

i.The agreement for the Mastercard is for a Credit Card, while the Chargecard agreement was for a Store Card.

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

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

3.Denied, as

a.No Default Notice has been served on the DEFENDER by the PURSUERS as required by the Consumer Credit Act 1974 Section 87 (1).

b.The PURSUER had no legal authority to require payment, as there is no enforceable agreement under the Consumer Credit Act 1974, as craved above in answer 2 (a) – (d).

4.Admitted but justified as

a.there is no legally enforceable agreement under the Consumer Credit Act 1974 between the parties, and

b.the action has been brought before a Default Notice has been served, as required by the Consumer Credit Act 1974, Section 87 (1).

PLEAS IN LAW

1.The PURSUER’S averments are irrelevant et separatim lacking in specification, the action should be dismissed

2.Since the PURSUERS admit no signed agreement exists for the Mastercard Credit Card 1005108227834649, there can be no properly executed regulated agreement in terms of the Consumer Credit Act 1974 Section 60(1) and (2) and Section 61 (1). The agreement therefore has been improperly executed, and is enforceable only by order of the Court under Section 65 (1) of the Consumer Credit Act 1974. However, Section 127 (3) of the Consumer Credit Act 1974, specifically states that the Court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with. The Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported Mastercard Credit Card agreement unenforceable.

3.The purported credit card agreement which the PURSUERS 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 Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported Mastercard Credit Card agreement supplied by the Pursuer as unenforceable.

4.The PURSUERS transfer from Chargecard store card to Mastercard Credit Card on or about September 2003 was an offence under Section 51(1) of the Consumer Credit Act 1974, and is not protected by Section 51(3) of the Consumer Credit Act 1974, rendering any agreement between the Pursuers and the DEFENDER unenforceable

5.The PURSUERS, by virtue of not having served a Default Notice, are not entitled under the Consumer Credit Act 1974 Section 87 (1) to demand payment of the balance and the DEFENDER craves that the application be dismissed.

 

I wondered if anyone had any comments on either

 

1. whether they could use the Cancellation notices etc Regs in the way that I sketched out above
   
2. about including new plea in law 2 (note the rest is unchanged from what went into court)
   

Thanks

SFU ;-)

[Monty2007]

I have been having a wee crisis of confidence about the date my Chargecard agreement was signed - December 1984, as the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) allows a creditor, where an agreement was signed before 19th May 1985 to produce "an easily legible statement of the current terms of the agreement or security as the case may be insofar as they are known to the creditor or owner where, due to an accident or some other cause beyond his control, the creditor or owner does not have in his possession the executed agreement or security instrument or any copy thereof" - in other words not the original document (not even with a signature ).

To be quite clear, the problem is that M&S admit that they dont have a signed agreement for the &more card they are taking the action for. They claim that they dont need this and can rely on the agreement for the Chargecard (signed in 1984). So, they say they will produce this in court. BUT, what if they rely on Cancellation Notices etc on the basis that the agreement was signed in 1984 and the above terms applies. No agreement for &more and an "easily legible statement" for the Chargecard. I would still like an opinion on this to see if they could pull a stroke like this in court.

However, I was advised in PM by Monty to ask Curlyben (remember him:) - now on Legal seagulls if anyone wants to find him). So I registered and posted the question, along with my answer to their condescendence. He just went straight by the Cancellation point and advised

"At the end of the day this action is based on the &more CREDIT card, so an agreement for the charge card, no matter when it was signed, will not prove cause of action in this case. If they cannot produce a compliant agreement you have a very clear s127(3) defence and I would seek a ruling under s142."

I have therefore thinking about amending my pleas in law to include a new term 2 (ie the new term is 2 - 1 has always been there and what were 2-4 are now 3-5). In the event that I do amend the plea it would look something like this

ANSWERS TO CONDESCENDENCE

1.The averments regarding the defender are admitted. The existence of jurisdiction is admitted. Quoad ultra not known and not admitted.

2.It is explained that, as

a.There is no signed agreement in existence for the Mastercard Credit Card 1005108227834649. The DEFENDER will present a letter from the PURSUERS confirming this in his first Inventory of Productions.

 

• 
  
  • The agreement allegedly entered into on or about 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 defender.
    
  • On or about September 2003, Marks and Spencer Financial Services sent the DEFENDER a Mastercard Credit Card (1005108227834649) in breach of the Consumer Credit Act 1974 Section 51(1) and committed an offence in that they gave the DEFENDER a credit token when this had not been requested by the DEFENDER, as required by Section 51(2) of the Consumer Credit Act 1974. The DEFENDER will present a letter from the PURSUERS confirming this within his first Inventory of Productions.
    

d.The above notwithstanding, the transfer without the request of the DEFENDER to a new agreement by Marks and Spencer FS is not enforceable as the Chargecard and Mastercard are so different as not to 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 significantly in that

i.The agreement for the Mastercard is for a Credit Card, while the Chargecard agreement was for a Store Card.

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

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

3.Denied, as

a.No Default Notice has been served on the DEFENDER by the PURSUERS as required by the Consumer Credit Act 1974 Section 87 (1).

b.The PURSUER had no legal authority to require payment, as there is no enforceable agreement under the Consumer Credit Act 1974, as craved above in answer 2 (a) – (d).

4.Admitted but justified as

a.there is no legally enforceable agreement under the Consumer Credit Act 1974 between the parties, and

b.the action has been brought before a Default Notice has been served, as required by the Consumer Credit Act 1974, Section 87 (1).

PLEAS IN LAW

1.The PURSUER’S averments are irrelevant et separatim lacking in specification, the action should be dismissed

2.Since the PURSUERS admit no signed agreement exists for the Mastercard Credit Card 1005108227834649, there can be no properly executed regulated agreement in terms of the Consumer Credit Act 1974 Section 60(1) and (2) and Section 61 (1). The agreement therefore has been improperly executed, and is enforceable only by order of the Court under Section 65 (1) of the Consumer Credit Act 1974. However, Section 127 (3) of the Consumer Credit Act 1974, specifically states that the Court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with. The Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported Mastercard Credit Card agreement unenforceable.

3.The purported credit card agreement which the PURSUERS 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 Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported Mastercard Credit Card agreement supplied by the Pursuer as unenforceable.

4.The PURSUERS transfer from Chargecard store card to Mastercard Credit Card on or about September 2003 was an offence under Section 51(1) of the Consumer Credit Act 1974, and is not protected by Section 51(3) of the Consumer Credit Act 1974, rendering any agreement between the Pursuers and the DEFENDER unenforceable

5.The PURSUERS, by virtue of not having served a Default Notice, are not entitled under the Consumer Credit Act 1974 Section 87 (1) to demand payment of the balance and the DEFENDER craves that the application be dismissed.

 

I wondered if anyone had any comments on either

 

1. whether they could use the Cancellation notices etc Regs in the way that I sketched out above
   
2. about including new plea in law 2 (note the rest is unchanged from what went into court)
   

Thanks

SFU ;-)

 

Looks good SFU, however I would not make reference in your pleas relating to a document that has not been put in the Record by the Pursuer (plea number 3). You should only make reference to those documents that they have submitted within their inventory of productions, you could of course include the document that they send you in your inventory and make reference to it that way.

[beetle1234]

Hi SFU....I know exactly how you feel as we were in court for options hearing this week with M&S.As we were working on this and exploring possibilities right up to the day before we went on the basis that we were going to ask for continuance for 4 weeks to add new evidence to our defence...pleased to say though that the pursuers solicitors beat us to it however by asking for exactly the same ! I believe you have a strong case but you do have to keep positive and keep going with it and look (with the help of guys like Monty and BRW) for additional angles to be prepared to hit them with...for example how does the DN look....ours is pretty much useless to them as it fails to give us the necessary 14 clear days to remedy (regardless of the fact we did not remedy !) in addition their application form in bold print "strongly advised us to take ppi" having never consulted on whether we actually wanted or required it !

Your defence looks good and I believe that this shows your pursuers and the court that you are intelligent and willing to have a go where others may just resign themselves to the fact that this kind of thing is so far out of their comfort zone that they simply resign themselves to it and wait for it to be over ! Good luck and keep the faith !!

[seriously fed up]

Doing my best, and still putting the case together as best I can - as you can see from the above, doing a bit of fine tuning.

Also spent tonight (SATURDAY night! ) reading Wilson v First Trust - you can see this at House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant) - very interesting reading as the most senior court in the land makes clear the consequence for a lender of not getting the paperwork right - or in my case, not having any. Should be required reading.My favourite bit is this (from Lord Nicholls of Birkinhead) -

" I consider, however, that there is no relevant restitutionary remedy generally available to a lender in the circumstances now under consideration. The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable. True, the Consumer Credit Act does not expressly negative any other remedy available to the lender, nor does it render an improperly executed agreement unlawful. But when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear." Rock on Nickie!

DN - dont remember getting one from them, so that's another point in the defence.

But I think the main plank is going to be that they screwed up in 2003 by not getting any kind of signature for the &more card. So its not just that prescribed terms were missing - there is NO agreement. EVen then, I dont think anything they can produce from 1984 would stand up. I have been in touch with two other CAGers whose Chargecard agreements arent as old as mine (and even I dont think that they would get worse with the passage of time - maybe no better - but not worse! Still you never know) and they wouldnt have a chance of not going down the 127(3) route. (the relevance of which is emphasised most strongly in Wilson)

Just looking for depth on these points - and any new angles if anyone can think of one.

Hopefully, for you, the request for a four weeks delay, is the precursor to some good news and positive developments for you ;-) and that its nearly the end of a hard road. Keep us all in touch, as I am sure others are reading this and would be encouraged by any success you achieve.

Edited July 11, 2009 by seriously fed up

[seriously fed up]

I have been a bit quiet on this thread recently, but for good reason. A couple of days after my last contribution, I had a letter from M&S's solicitors to say that they wanted to withdraw the case ("as a commercial decision and without admission of liability" - even when we are wrong we are still right! ). I replied to say that I wasnt happy with having the case dismissed as it meant that they could come back with it at a later date if they so chose. My preference was for a motion of absolvitor which meant that not only was the case dropped, but in my favour and they couldnt bring another case for the same cause. I also asked for any negative comments on my financial files to be removed. I am pleased to say they agreed to this and yesterday the postman brought a document from the court with the motion of absolvitor signed by the Sheriff in our local court. So that's that one dealt with

What have I learned

 

1. dont panic. I have posted elsewhere about how just over a year ago, I took a call from a DCA who said "your Amex card is being actioned tomorrow". Now I would know that was a load of complete guff and told him so, but not knowning that then, I scraped together the case (and I mean scraped) and paid them off.
   
2. remember that we have rights as well as them
   
3. do some research. I found out by searching this site that there were others who had received CCAs from M&S and they wouldnt stand up. I suspect this would have been the case with my own and it was why they withdrew. So why bring the case?
   
4. this isnt about "right" or "legal". From the point of view of the banks (and the DCAs) its about getting money and they will do what they can to make sure they get it.
   
5. most importantly the value of this site and the people on it. A lot of people helped me out - Welshmam, Willow, Ida (in Fife!) - but in particular Beetle1234 (for keeping me going) and Monty2007 (for invaluable advice). My thanks to them.
   

[seriously fed up]

I agree with Ida, though perhaps not in the sense that she means.

Lets suppose we work for M&SFS and we have a whole bundle of people who have stopped paying their credit cards. We have harassed them with phone calls, DCAs etc, but to no avail. What to do next? Well lets show them that we arent kidding, lets take them to court.

Those who are taken to court will broadly fall into two categories

 

1. those for whom M&SFS have the legal documents necessary to secure an order
   
2. those for whom they DONT have the necessary documents.
   

But the second of these will divide into another three groups

 

• those who cave in and agree a payment schedule, even though M&S dont have the legal basis to make them pay
  
• those who put in a poor defence and lose - a court can only judge on what is put before it
  
• those who put in a good defence, and put it into court and either win or M&S walk away beforehand.
  

So of the four possibilities in any one action, M&S win in three of them, even though in the the second and third (the first two varieties of option 2) they dont have the legal basis. How many actions would need to end up like the last outcome for M&S to be net, out of pocket, in collecting money they werent otherwise collecting, from that kind of strategy?

Just a thought

[ajs444]

Nice one SFU, anounce it from the rooftops so all M&S customers get the message!!!!!!!!!

[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.