M&S Agreement

[citocoms]

I have cca'ed for a chargecard M&S agreement. They have sent me back a copy of the signed 'Application'.

 

It has a Credit Limit request tick boxes, I ticked £500, but not an actual Credit Limit on signature side of form or reverse side.

 

It has terms and conditions on the non signature side. Do you know if these count under the '4 corner rule', i.e. terms and conditions on the other side of the form you sign on?

 

The signature side is titled .... Application Form, underneath in smaller print, first box of signature side of form, it does state CCA ...., also the reverse side is headed CCA Regulated.... as the title.

 

Your thoughts on enforceability would be appreciated.

[42man]

Hi Cito....any chance you can post it up on here ? photo or scan it MINUS THE PERSONAL DETAILS - use www.photobucket.com (free) if need be and there is a tutorial here - http://www.consumeractiongroup.co.uk/forum/bear-garden/165941-photobucket-video-tutorial.html

 

In the meantime this may assist you -

 

CCA RULES FOR PRESCRIBED TERMS

CONSUMER CREDIT ACT

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Prescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment
  

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreements executed before that date.

[citocoms]

Thanks 42man, I will try to get it scanned somehow probably next week.

[citocoms]

What does this mean?

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

 

Where can I get, or when will, the next 'paper' be available, and from whom? Is it available now?

[citocoms]

Just got news today from a claims management company that there may be one major breach and two infringements of legislation; agreement unenforceable in my opinion if that is the case, awaiting details.

 

That said a consumer solicitor I contacted today said M&SC Agreements are normally watertight so he would be surprised; time will tell.

Edited May 16, 2009 by citocoms

[alangee]

I too have had an application/agreement sent to me by M&S. After several letters pointing out that there were no prescribed terms, I sent a CPR 31 16 request. Their reply was that the application is an agreement - despite no prescribed terms - and that the lack of a signature by M&S, as well, was a minor detail, that they are sure the courts would overlook.

 

It is now being handled by one of the more unscrupulous DCA's, so you can guess where I am going with this.

 

Alan

[42man]

I'd say that if they have sent you an agreement that is unsigned by them then it is unexecuted !!

[citocoms]

HELP

 

Just been told today that (and hopefully my wifes later) Cahoot Credit Card is Unenforceable and they will take it on. So why HELP, the Caims Companies cannot deal with people in Northern Ireland, just England &Wales. Phoned leading Solicitor and advised they do not deal with Unenforceable Credit Cards or Store Cards (same claims company advise my M&S Chargecard Agreement is Unenforceable), they are one of the foremost Solicitors in England that deal with Unenfoceable Agreements.

 

Help, what do I do now, back against the wall, 2 unenforceable agreements and nowhere to turn to for help, help.

[citocoms]

Ok, got my report today.

 

One prescribed breach (Unenforceable) and two breaches (enforceable only by order of a court).

 

The prescribed breach, APR/Interest, a breach of a prescribed term (as defined in Schedule 6 of the Consumer Credit (Agreement) Regulations 1983 as amended)for the purposes of sections 61(1)(a) and 127(3) of the Consumer Credit Act 1974. I may have to go to court on this one as it is not clear cut (Claims Company must have forgot to mention that when selling me the report?).

 

I know from reading that a lot of these so called Unenforceable Agreements just result in a part settlement, now I understand why.

 

The other two breaches relate to 'The agreement does not provide the total charge for credit' and 'The Terms and Conditions do not state that the calculation of APR does not take into account possible variations in the rate of interest.'

 

 

I also now know that their is one company out there who do not charge, as Claims Companies apparently get paid a decent fee for referring cases to Solicitors to pursue. The Solicitors get their money fom the company being pursued (your loan company). So no need to pay big fees.

 

Now N.I. is a bit problematic as we do not to my knowledge have CCA 1974 experienced ligitagators, or I can't find them.

[citizenB]

Thread moved to the newly opened M&S forum:grin: