Rizel23 vs M&S

[cerberusalert]

I'm afraid all the prescribed terms are there so it would be deemed enforceable.

 

Have they sent you a Default Notice yet?

[rizel23]

thanks for your reply cerberusalert, not haveing much luck with these CCA's

 

I thought there needed to be a credit limit present in the agreement from the;

 

Consumer Credit Agreements - a guide to enforceability

 

?

No default yet, should i hold out for one in hope its defective or contact them regarding payment plan if they remove all charges and credit late payment markswhich they added whilst in dispute?

 

Thanks again for your time

[cerberusalert]

They can state that they will determine the credit limit later.

 

Obviously if there are any unfair charges included you should reclaim them to help reduce the debt. As for waiting for them to default you, I can't really advise on that.

[rizel23]

well was just writing a letter to M&S for payment a agreement after receiving CCA, and just found this default notice

 

Dated 2nd November and just says 'within 14 days ect' kept envelope postage is business preprinted with large 'S' in right corner, does that mean 2nd class?

 

Advice please welcome;

 

Edited November 9, 2009 by rizel23

[cerberusalert]

It's defective, so as soon as they terminate the a/c they're stuffed. All they will be able to claim are the arrears.

 

If they send an unlawful DN then terminate the account they are in breach of Section 87 (1) of the CCA 1974. The reasons for the DN being unlawful can be found in the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/199543-quick-default-notice-question.html

 

Failure of a Default Notice or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd V Swain & Co NLD 14 July 1998 but it is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt (Wilson V First County Trust Ltd [2003] UKHL 40, Wilson V Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson V Pawnbrokers [2005] EWCA Civ 147) - but would also give the claimant a claim for damages in the sum of £1000 (Kpophraror V Woolwich Building Society [1996] 4 All ER 119).

[rizel23]

thanks cerberusalert, do i just sit tight and wait now? Have halted letter i was writing.

 

This is the letter i was replying to, although that states they want immediate full payment on the account (its the letter they sent the CCA with)

 

 

 

Obviously once it has all come to a head can i get the defective default removed from my credit file?

Edited November 9, 2009 by rizel23

[cerberusalert]

do i just sit tight and wait now?

Yes, you now need them to terminate the a/c. Then they will not be able to issue another DN.

Obviously once it has all come to a head can i get the defective default removed from my credit file?

That will be difficult, although not impossible but may require you taking them to court.

[rizel23]

thanks again cerberusalert, i shall just wait now then, i presume it won't be long before they terminate the account. I shall keep you updated on any other correspondences they send for you advise

[rizel23]

HELP!!!

 

Received a hand written note from debt collector today, was not in, so they left card presume it was from Scotcall as this was letter got of them early December;

 

http://i46.tinypic.com/2w6fjgo.jpg

 

should i just ring them and say i'm happy for M&S to continue with legal proceedings as surley they will terminate the account as balance is only around £500!

 

Could some please advise how i deal with debt collector if i or member of family is in and advise on what powers they have? thanks

[cerberusalert]

Send this to the idiots; http://www.consumerforums.com/resources/templates-library/86-debt-collectors/590-letter-used-when-a-dca-threatens-a-doorstep-visit-

[rizel23]

many thanks again cerberusalert back on after lovely Christmas break, hope yours and fellow CAG'ers was the same

[rizel23]

Had a letter from M&S saying Door Stop calls letter i sent them had been 'noted'

 

A new DCA has taken on the account, how exciting i thought, i ignored ther first letter, but now they are demanding full amount to be paid with in 7 days, should i write to M&S accpeting unlawful termination due to faulty DN yet or leave it a bit longer?

 

http://i48.tinypic.com/mukdfp.jpg

[cerberusalert]

Ignore them for a little longer.

[rizel23]

thanks cerberusalert, would you mind offering your thoughts on my other thread with Barclaycard? Dicky has been great but more views the better, don't want to balls up! thanks

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/205335-rizel23-barclaycard-8.html

[rizel23]

is this letter anything to worry about? I have defective DN as per rest of thread;

 

http://i50.tinypic.com/4jb8sg.jpg

[cerberusalert]

No, you've got an absolute defence in the defective DN;

 

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, a failure of a Default Notice or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd V Swain & Co NLD 14 July 1998 but it is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt (Wilson V First County Trust Ltd [2003] UKHL 40, Wilson V Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson V Pawnbrokers [2005] EWCA Civ 147) - but would also give the claimant a claim for damages in the sum of £1000 (Kpophraror V Woolwich Building Society [1996] 4 All ER 119).

[rizel23]

cheers again, I'll await termination then send letter off to M&S

 

Might be getting ahead of myself, but obviously been turned down for a Credit Card today, would i have a case for damages against M&S for placing a default on my account that was defective?

[cerberusalert]

A claim for damages in the sum of £1000 at least (Kpophraror V Woolwich Building Society [1996] 4 All ER 119).

[rizel23]

still not had a termination letter from M&S, only thing new is new DCA claiming to act on M&S half wanting to recover 'outstanding balance' (which is the full amount M&S claimed i owe)

 

http://i43.tinypic.com/1222c1l.jpg

 

just ignore a bit later & await termination?

[cerberusalert]

I've just had another look at your agreement and realised that you signed it at home, because of that it should have included the prescribed term giving you the right to cancel. This is missing so would be seen as unenforceable. Send this to M&S;

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2009 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 all 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 all 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 refer to 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

Print name do not sign

 

 

Send this to Fenton Cooper; http://www.consumerforums.com/resources/templates-library/86-debt-collectors/574-letter-when-account-has-been-passed-on-whilst-agreement-request-is-in-dispute

[rizel23]

thanks cerberusalert they do state a right to cancel above signature but you are correct that have included not details anywhere on the agreement agreeing to such terms? I made the application online i think if that makes any difference?

 

http://i35.tinypic.com/2gslhfr.jpg

 

would i not be better sticking to the faulty DN as i'm a little worried if i point other aspects out they could simply issue another one as i have yet accepted the original faulty DN. plus if i accepted that faulty DN i'm surely agreeing to the CCA being acceptable to me & valid? thanks

[cerberusalert]

Sugar.... my eyesight must be going.

 

When you applied online they also had to send you a 'hard copy' to sign at that time.

 

Yes just stick with the defective DN.

[rizel23]

actually i'm not 100% sure i did apply online, it could have been via post, either way the copy i have uploaded is the hard copy of the agreement they posted out to me which seems in tack.

 

I shall just wait a little longer till i get 100% confirmation the debt has been sold or M&S demand full balance themselves, i doubt a DCA acting on there behalf will take any court action as balance is below £500

[rizel23]

still no update from M&S, i have just thought though, i bank with HSBC and have a saving account with them, they seem to own the &More credit card, could they take money from my saveings account to pay this account? thanks

[cerberusalert]

Yes they can off-set between a/cs, it would be wise to open a parachute a/c with an unrelated bank such as the Cooperative.