MS CCA Found

[SRR1972]

Hi there

 

Well M&S have sent me my CCA and it looks genuine - I will post it up once my flamming scanner decides to work properly.

My plan was to offer them a F&F if they couldn't find it so now they have can I still offer them a lump sum to go away ? I guess the chance of them saying yes is pretty slim but can any advise what I should say and how much I should offer ?

 

Stu

[IdaInFife]

if you upload the reply and if it is enforceable then offering them a reduced full and final is still possible.

 

are you paying them anything at them moment?

 

if so to them or dca?

 

Ida x

[SRR1972]

Hi

 

Will do once scanner stops being a sh**

 

Paying minimum to them the now - haven't missed any payments (yet)

 

Stu

[IdaInFife]

okies well if it is unenforceable and want to offer a reduced full and final theres a letter to adapt to basically say that your circumstances have changed and now you can only pay £1 per month but your family is willing to help out by offering £xx to clear the account.

 

but will get that when needed

 

ida x

[SRR1972]

Hi All

 

Could somebody who's cleverer than me at these things look at this application form I got back from M&S when I asked for a CCA

 

So questions I have is

 

Is this a CCA (told u I wisnea bright )

Is it enforcable ?

Could I still offer a F&F ?

 

Any help appricated

 

http://s675.photobucket.com/albums/vv113/SRR1972/

 

 

 

Stu

Edited September 10, 2009 by SRR1972

[IdaInFife]

no prescribed terms:

 

Dear Sirs,

Account no xxxxxxxxxxxxxx

 

Re: my request under the Consumer Credit Act 1974

This account is in Dispute .

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

2.6 Examples of unfair practices are as follows:

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

I respectfully request a response to this letter in 14 days

 

I trust this out lines the situation

 

 

and if you want can post up a template for full and final based on this to send along with

 

ida x

[IdaInFife]

Account Number:

Dear Eejits

Thank you for your letter dated xx/xx/xx, in which you have sent an unenforceable application rather than any properly executed agreement that may or may not exist in relaton to the above alleged account. (please see the included response).

 

I am currently paying £xx per month/week towards this account and unfortunatley due to a change of circumstancs of reduction of incoming monies I may have to reduce my payments to £1 per month in the next few months.

 

While admitting no liability for the account and the sum claimed as owing, I am willing to offer the sum of £xx as an ex-gratia payment in full and final settlement of the account.

 

This offer is made on the clear understanding that neither you nor any associate company will take any further action to attempt to enforce or pursue this debt in any way whatsoever and that any and all liability on our behalf will be fully discharged on receipt of the above stated monies.

This offer is made on the condition that of all adverse entries regarding this account are removed from our credit files with the credit reference agencies.

Payment can be made within 2 weeks of receiving your written confirmation of your agreement of this offer and the subsequent terms of the offer. Please also identify your prefered method of payment and the details of making said payment.

Please note that this is offer is available for a short period only as this is being offered by family members and if declined will be offered to another creditor. This offer will expire on (date - give them a couple of weeks) if no letter of unconditional acceptance is forthcoming and will not be repeated. This offer is not open to negotiation.

We look forward to receiving your reply.

 

Ida x

[SRR1972]

Great Ida thanks (must be due u a pint by now) - do you think 15% is a fair starting point ?

 

S

[IdaInFife]

very fair

 

vodka for me

 

ida x

[SRR1972]

Hi

 

Just had a reply and its not good they say they won't accept my F&F which was around 15% and that my account isn't in dispute and to go get legal advice.

So I presume my next step should be to SAR them and then wait and see happens now ?

Is this just postering on thier side if they can't give me a signed copy of my CCA then why do they seem keen to take this further ?

 

S

[IdaInFife]

sar and reclaim back any unfair charges and or interest

 

any PPI on it?

 

because they want as much mony form you as possible

 

they haven't issued a default notice on this one have they?

 

ida x

[SRR1972]

Hi

 

No Ida no ppi but I'll do the SAR today

 

No Default either just them saying they will continue thier normal collection activities and to advise me to take legal advice

 

S

[IdaInFife]

options

 

from 1st decemeber it looks as thougth they have to have the original signed credit agreement before commencing any court proceedings

 

its a tricky one for you

 

sometimes dca's are better accepting full and finals becasue they pay a pittence for the accounts

 

maybe wait and see what you get abck in the sar

 

ida x

[SRR1972]

Hi Ida

 

I am going to go down the SAR route - I'm already in the poo a wee bit more won't hurt.

 

Open question though I saw the article you posted regarding the need for the actual true signed copy - which was good news - but then I saw this post from UKAvietor

More:

 

High Court decision on debt loophole dashes write-off hopes for thousands - Times Online

 

Reading this I take it the debts are still unenforcable but some posts say otherwise - any views ?

 

S

[IdaInFife]

http://www.consumeractiongroup.co.uk/forum/bank-charges-finance-industry/225417-high-court-decision-debt.html

 

 

read photomans post that seems to explain it

 

it will be on case by case issue i think

 

but up here we need to wait for the 'debate' next month and see whats going to happen in december

[SRR1972]

Hi

 

Just got my SAR back from M&S - Still no CCA lots and lots of everything else but no CCA - just the incomplete application form - that is good news isn't it ?

 

S

[IdaInFife]

yes

 

you checked out any charges that can be reacaimed etc?

[SRR1972]

Hi all

 

Currently getting chased by M&S reclaims guys now - given they haven't met my request for a CCA I want to send them the bermused letter but can't find it - Can somebody help please ?

 

S

[IdaInFife]

no. 17 The Consumer Forums - Debt collectors

[SRR1972]

Thanks Ida - hope you're OK

[IdaInFife]

yip fine plodding along

 

 

send the bemused letter and maybe wait a week or so and re try a f and f if you are still in a position to do so

 

ida x

[ajs444]

Hi SR1972,

Fell out with M&S over a year ago, threatened with all sorts, letters from 2 dca's who were told to ram it, now at stalemate stage.

See my thread under Other Institutions M&S, seriouslyfedup has some good advice as he has already defeated them.

[SRR1972]

Hi all

 

Haven't updated cos really there hasn't been any - had a mail from a DCA (Resolvecall) which was pretty much the same I had from the 1st bunch - I sent off the bemused letter and not heard a thing in response - that was about 6 weeks ago

Is this normal ? Should I be worried or just enjoy the peace ?

 

S

[IdaInFife]

enjoy the peace lol

[SRR1972]

Spoke to soon - got a letter from Westcott saying the same as the previous 2 companies - going to send them the same bemused letter ?

Wee question though why do they keep passing this around 1 company to the next ?

 

S