M & S CCA Enforceable?? (PLUS someone elses copies)

[hme.4x4]

I received this lot from M & S this morning for a Chargecard dated 1992 and a Personal Reserve dated 1996.

On both letters they say that the Credit Agreement is now broken and the full balance is due immediately!

I have been making payments through a DMP and that is still in force as far as I am aware.

For both accounts they have included a Statement of Transactions which are signed and dated 4 days ago.

The card application is a Microfiche copy is difficult to read, the T & C's are impossible to make out, the image you see is the quality of the copy. So for good measure they have sent a three page copy of the T & C's for 2007!

The Personal Reserve application makes me feel ill....it is blurred and the copy is approx 5" x 4" and the T & C's cannot be read at all. Once again there is a 2007 copy of T & C's.

I am concerned that they seem to think this is the time to demand immediate payment in full when I am in a DMP.

Can someone please tell me if these applications are enforceable? I think they are probably not but I'm not an expert.

ALSO, received along with my copies are a full set of copies for some other poor soul from Wigan....this bothers me a lot. Breach of Data protection etc, what should I do?

Seems to me that if they can send someone elses copies to me how many of MY copies have they sent elsewhere???

 

 

 

[42man]

My first thought is that they are application forms and are not enforceable as they don't contain the prescribed terms....but they haven't complied with supplying you with legible documents....

 

It may be worthwhile writing to them quoting this...

 

Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 (SI 1983/1557)

 

 

Quote:

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily

distinguishable from the .

(2) The wording of any Form prescribed by these Regulations shall be reproduced in copies of unexecuted or executed

agreements or in Notices of Cancellation Rights sent [by an appropriate method] under section 64(1)(b) or (2) of the Act

without any alteration or addition, except that--

(a) the creditor or owner may enter the name and address of the debtor or hirer in any Cancellation Form prescribed

by these Regulations; and

(b) every Form shall be completed in accordance with any footnote.

(3) Any such footnote shall not be treated as part of any Form prescribed by these Regulations and may be reproduced

in addition to any such Form.

(4) Where any such footnote requires any words to be omitted, those words shall be omitted or deleted.

[42man]

Also you may be interested in this....they would need to find the T's and C's at the time the loans were taken out and not try and pass off current terms as the same....

 

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement

and the statutory content of the agreement. The name, address and signature of the debtor do

not have to be provided. Additionally, the creditor must supply the total sum paid under the

agreement by the debtor; the total sum which has become payable under the agreement but

remains unpaid; and the total sum which is to become payable under the agreement by the debtor

(the latter two must include the various amounts comprised in that total sum and the date when

each is/was due). However, the copy must be a copy. It need not be exact on immaterial points,

but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have

difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody

would know what was in the original. When the trader comes to enforce the debt in court, he needs

to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot

otherwise.

 

In the absence of a copy of the original agreement someone's liability for a debt can only lead to

further query. However in circumstances like this we would view it is as unfair practice under

section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or

provide details as appropriate when a debt is queried or disputed

[hme.4x4]

You are the man 42Man! That's what I thought too.

What about the content? Is this an executed agreement meeting all of the prescribed terms? Or are they just applications?

[citizenB]

The personal reserve form is a Mailer Application form. You can see where the form is gummed round the edges where you would have needed to fold it in half or 3 so that it could be posted. In which case it would probably not have any financial information on the reverse as it would have had a reply to address.

 

As for the information you have received regarding someone else. Reading around the forums, that seems to be quite a common problem and I think you should advise the Information Commissioners Office. It certainly proves that M&S isnt keeping it's data very secure.

[hme.4x4]

Thanks for the advice.

So these are applications and not agreements because they don't contain the prescribed terms and they are not enforceable as I understand.

I am on a DMP, and have been for some time, so why are they saying the agreement is broken and the full balance is now payable immediately?

Can anyone please help me out here?

[pt2537]

erm, this was a charge card?

 

if it was there is a high probability that it wont be regulated and as a result wont come under the umbrella of the CCA 1974

 

just a thought

[hme.4x4]

Yes, one was a M & S Chargecard and the other account was a M & S Personal Reserve Loan Account.

The Chargecard account was opened in 1992 and the Reserve account 1996.

Sorry what does that mean that it won't be regulated and won't come under the umbrella of the CCA 1974?

[NailPost]

My understanding of a chargecard is AmericanExpress and Diners in that you pay off the bill in full each month. M&S called their storecard a chargecard but you were allowed to pay off some of it and carry the rest over. Then interest would kick in of course!

 

The main question here is when was the last payment made. I note that a detailed statement of account showing this rather important detail has not been included.

 

On a final note from me I'm pleased to see M&S take the initiative in collecting elderly accounts. Usually they farm them out to the more unscrupulous and unethical. Perhaps someone has had a word and pointed out that M&S are responsible for the actions of their agents.

[42man]

Apologies, I didn't spot the chargecard bit....thanks PT !!!

[hme.4x4]

So what does the chargecard thing mean in relation to the CCA?

I'm not too concerned about that one as it is for a small amount.

I am concerned about the Personal Reserve Account as that one is £3097 and they are saying they want immediate payment as the agreement is now 'broken' How can this be when I am on a DMP?

[babybear39]

Who manages your DMP and have you checked that payments have been made properly?

 

If they have then M & S are breaching OFT guidlines by contacting you directly.

[hme.4x4]

Debtcare, and they send me a monthly log so I know payments have been made on the dot.

They demanded immediate payment in full when they sent the CCA along with someone elses CCA..............

[Patma]

Hi I've been in the same position as you,HME and have received ientical stuff back from M&S for a chargecard going back to 1987ish.

I've been dealing with Rockwell who have had the usual letters from me setting out the relevant details of the CCA 1974. At no time have they come back to me saying it doesn't apply in the case of this card. As I understand it, the card supplied rolling credit and therefore it should apply. I hope so anyway or else I'm up the creek LOL.

Also note that M&S refer in their letter to you , to "their duties under The Consumer Credit Act 1974", so it would seem they think it applies to the chargecard.

That's my take on it for what it's worth. All the best, Patma

[babybear39]

They're being awkward 'cos you asked for your CCA.

 

Here are the OFT guidlines they're breaching:

 

Deceptive and/or unfair methods

2.7 Dealings with debtors are not to be deceitful and/or unfair.

2.8 Examples of unfair practices are as follows:

a. sending demands for payment to an individual when it is uncertain that

they are the debtor in question, for example, threatening debt recovery

action to 'the occupier' or sending a payment demand to all people sharing

the same name/date of birth as a debtor in the hope that contact with the

correct debtor will be made.

b. disclosing debt details to an individual when it is uncertain that they are

the debtor in question, for example, disclosing details to 'the occupier' of

an address.

c. refusing to deal with appointed or authorised third parties, such

as Citizens Advice Bureaux, independent advice centres or money

advisers

d. contacting debtors directly and bypassing their appointed representatives

e. operating a policy, without reason, of refusing to negotiate with

debt management companies

 

Report them to Trading Standards and the OFT. Also contact your DMP and inform them of M & S' actions, they should sort it out for you.

[hme.4x4]

Thanks for the great advice! I didn't know about the Chargecard business not being covered by the CCA umbrella...course I could write a book about the sum of what I don't know about this business, but I am learning!

I thought the demand for immediate payment might be a bit of 'sour grapes' because of the CCA, it's a bit much when I am making payments and haven't once missed, so thanks for your advice babybear.

So it looks like I have two applications and not agreements, still feel a bit funny about this not being enforceable when I still signed the application etc.

[hme.4x4]

Received a letter from M & S Money today;

Thank you for informing us of your recent change of name. The two accounts I have were in my previous married name, I am now remarried and I know my DMP sent them this information at least 4 years ago.

I would be grateful if you could supply me with specimens of your old and new signatures where indicated below.

I enclose a prepaid envelope and confirm that we will consider your request as soon as we receive your reply. What are they up to? I haven't made any request and I am certainly not going to send them specimen signatures!

[babybear39]

Have you spoken to your DMP people about all this?

[citizenB]

Received a letter from M & S Money today;

Thank you for informing us of your recent change of name. The two accounts I have were in my previous married name, I am now remarried and I know my DMP sent them this information at least 4 years ago.

I would be grateful if you could supply me with specimens of your old and new signatures where indicated below.

I enclose a prepaid envelope and confirm that we will consider your request as soon as we receive your reply. What are they up to? I haven't made any request and I am certainly not going to send them specimen signatures!

 

What, did they think you entered this planet via a meteorite or something ??

[hme.4x4]

I don't know what they are playing at...do they really think I am so stupid that I would comply with their request? And isn't it a bit strange that they have sent this right after sending me the supposed CCA?

[babybear39]

Very strange.

 

Also isn't good for their image asking for signatures after supplying sensitive information

[hme.4x4]

I agree Babybear, they are asking for specimens of my old signature and my present one, I'm suspicious, but they must be cleverer than me because I can't imagine what they want them for!

[babybear39]

It has been rumoured that some financial institutions use signatures provided by customers to add to agreemnets, but I highly doubt M & S would even consider such a thing, seeing as they're so reputable...