Waterminx v's M&S

[waterminx]

M&S are overdue by more than a week with my SAR stuff. they have decided to take my last chase letter as a 'complaint' - so have used their complaint procedure to delay the thing even more.

 

So - is it a complaint to the OFT about them using delay tactics on my SAR?

 

I have had no further threat letters or calls tho.

 

Minx

[citizenB]

Waterminx, you complain to the Information commissioners office in respect of a delayed SAR.. not the OFT

 

LTSB seem to think that CCA and SAR requests are complaint letters as well... They just cant get the staff these days

[waterminx]

Hellooo

 

Have been gone a long time and unfortunately, other personal issues and work issues have meant I have dropped the ball on this.

 

Rockwell have been on my case with letters and phone calls which, frankly I ignored - naughty, I know... but it couldnt be helped.

 

So now I get this - a Rockwell 'Final Letter Before Action'

 

 

Should I be frightened by this - is this a sabre rattle or the real thing?

I am chasing my tail with my debt issues right now - playing catch up. Barclaycard and Mastercard have gone very quiet since I SSR'd them. Only M&S persists. I have the typical 'application form' type of document as a 'copy of my cca' - this is a store card app form (not a credit card app form) - plus the much copied document which purports to be the reverse of that form. M&S refuses to accept that the account is in dispute and I have gone through a couple of DCA rounds with them.

 

Just need to know where to put my effort right now.

 

Thanks for any help

 

minx

 

[waterminx]

ah nuts... I am still rubbish at this linking malarky.....

 

sigh -will try again

[waterminx]

This should work....

 

rockwellthreat002-1.jpg picture by watertrollop - Photobucket

 

Anyhow - should I be panicking???

 

Thanks anyone for your view.

 

minx

[IainHL]

waterminx, it is interesting to note the lack of the words "may" or "might" in the sentence concerning taking legal action. This implies to me that it is a genuine Letter Before Action, and their next step will be to submit a claim (well actually it will have to be M&S who do that since I cannot see anything that suggests M&S have sold this debt to any of the DCAs involved.)

 

Whether that means you should be panicking or not then comes down to you, and whether you are going to be scared by the court process. Since you have a very robust case against them you will be able to defend any such action very well. Then when they discontinue/you win you will be able to put this one to bed for good.

 

Personally I am not quite sure yet whether I would prefer my creditors to actually go to court, or whether it would be better just to play the 6 year waiting game. To my mind the problem with the latter is having to keep on fending off DCAs for that period.

[seriously fed up]

Waterminx - a quick question. Your application seems to have been signed some time in the 1990s (cant quite read even the good version) and seems to be for an Account card. Are you still on an Account card (and this is this what they are chasing you for)? OR did they transfer you to &more c2003? If the latter, did you sign anything at that point or was it just "here's the card, off you go and get on with it"?

Let me know

SFU

[waterminx]

Sorry - I have been away - erm - yes - I just got the 'and more' card in the post -didnt ask for it and didnt sign for it.

Thanks SFU...

Its a right pain innit!

minx

[seriously fed up]

aye, it is for them - a right BIG pain

Basically they cant do this, for all sorts of reasons, but the main ones are

 

1. they have sent you an unsolicited credit token (the &more card) which is an offence under the CCA
   
2. quite how they think you can equate the t&cs for the chargecard with the t&cs for &more, I really dont know. They may well have signed agreement from your for the former, but what about the latter?
   
3. the two "products" - chargecard and &more - are fundamentally different (you could only use the former in an M&S store, but the latter anywhere with a mastercard sign - just one example).
   

Have a look at my thread setting out my "doings" with them about a year ago - I was in exactly the same position as you. See http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/199747-help-court-papers-m.html

How they will react to you writing to them to tell them this I dont know. They went straight to court with me when I CCAd them - and, as you will see on the thread, ran right away when they read the defence. So they cant have much confidence in defending this at court, so they may not go there, preferring instead to use other ways to get you to pay up (or at least reach an "accomodation with them - partial payment for instance). I really wouldnt want to even guess on that. One thing, I do know, though, is that they will NEVER admit this is right.But on the other hand, I dont think they would dare to take you to court to enforce an &more card, armed with nothing more than a chargecard agreement and its T&Cs.

Have a look at my experience - and others with the same problem - and let us know what you are thinking about doing.

Best wishes

SFU

[waterminx]

Thats BRILL SFU - thanks everso.

 

I dont think they have a leg to stand on and I think they darn well know it. As it stands, I received this threat some weeks ago now and have not heard a thing since. Its been at least four weeks. I have also just received a similar threat from Moorcroft on behalf of barclaycard who also do not have an enforceable document (I believe).

 

Thing is that as you deal with one DCA they simply pass it on to another and threats become more 'serious' as time goes on but none of the threats appear to be carried out.

 

When DCS's send a letter like this do they have to follow it up within a certain timeframe or can they simply go on threatening folk ad infinitem???

 

Is there a 'do it or b*****r off' letter somewhere???

 

Minx

ps - its also difficult to take these things seriously when the letter (moorcrofts) uses the 'Comic Sans' typeface!

[seriously fed up]

that's ok. Glad to help

You are right about the threats. Once you realise its a game and how its played, it gets a lot easier once you understand that a lot of what they say is just nonsense to get you to pay up even if they dont have the legal right to do so.

But one problem is that by making these threats they can be successful. I wondered about this in my M&S thread (at the end, after I had seen them off). When they came after me, I know they had come after at least two other people up here (I'm in Scotland), both using the same firm of solicitors btw. Between us, they were seen off. But the thought occurred that suppose they had come after 100 people as an exercise - how many would they have to get to pay up/ come to an arrangement because they were frightened of being taken to court, to make that exercise pay? I dont know the numbers, but my suspicion is that it could be as low as 10-20. And, given the enormous mess these people have made, but even more the encouragement that coming out ahead might given them, that causes me as much anger as worry. :x

But you wont be one of the 10-20, so that's good

[seriously fed up]

that's ok. Glad to help

You are right about the threats. Once you realise its a game and how its played, it gets a lot easier once you understand that a lot of what they say is just nonsense to get you to pay up even if they dont have the legal right to do so.

But one problem is that by making these threats they can be successful. I wondered about this in my M&S thread (at the end, after I had seen them off). When they came after me, I know they had come after at least two other people up here (I'm in Scotland), using the same firm of solicitors on us all btw, so probably a cut-price package deal. Between us, they were seen off. But the thought occurred that suppose they had come after 100 people as an exercise - how many would they have to get to pay up/ come to an arrangement because they were frightened of being taken to court, to make that exercise pay? I dont know the numbers, but my suspicion is that it could be as low as 10-20. And, given the enormous mess these people have made, but even more the encouragement that coming out ahead might give them, that causes me as much anger as worry. :x

But you wont be one of the 10-20, and that's good

[waterminx]

Well - the latest is that I have now had an Offer of Repayment - this time from Fenton Cooper. They say M&S is now willing to offer me a 'significant reduction' in my outstanding balance!!!

So - am threatened with action by Rockwell and then get this offer from Fenton.. makes you wonder whos driving the bus!! Lets see what happens with the other threat from Moorcrofts.

 

Never thought I would laugh out loud at a letter like this - not in a million years. But ... well.. .couldnt help it!

 

Am feeling more positive now - perhaps there WILL be an end to this doo doo after all!

thanks to everyone

Minx

[seriously fed up]

Do you think they are that well organized that there is a bus?

Re Fenton Cooper, I would watch this one very carefully. For one thing you want to know who is actually acting for M&S. Them or Rockwell.

There can be two problems with these offers of significant reductions

 

1. that this will be in full and final repayment - ie the end of it all - and not just a partial repayment and then a bit later some other low life comes along looking for the rest.
   
2. that they have the authority of M&S to make this offer to you?
   
3. that when you make an offer - say 20% - they dont turn round and say "well if you can pay that, it will make up your arrears and get you back on track"
   

Butt, yes its good to laugh and sometimes, with what they tell you, you have got to :D

[waterminx]

OMG - I cant say I am surprised, I dont trust ANY DCA - its a crock isnt it??

 

Well - I got a corker of a letter from CyberUser in response to my post about the barclaycard threat. I will use it on M&S I think.

 

I have so had enough of them.

 

Thanks again - will update on outcome!

Minx

[citizenB]

Well - the latest is that I have now had an Offer of Repayment - this time from Fenton Cooper. They say M&S is now willing to offer me a 'significant reduction' in my outstanding balance!!!

So - am threatened with action by Rockwell and then get this offer from Fenton.. makes you wonder whos driving the bus!! Lets see what happens with the other threat from Moorcrofts.

 

Never thought I would laugh out loud at a letter like this - not in a million years. But ... well.. .couldnt help it!

 

Am feeling more positive now - perhaps there WILL be an end to this doo doo after all!

thanks to everyone

Minx

 

 

Minx, there should only be ONE DCA contacting you in respect of this account.

 

Can you confirm that there are 3 of them ? If so, it might be worth making a complaint to the OFT and letting all of the above know that you have done so.

[waterminx]

UPDATE:

Well - I sent Fenton Cooper the following letter on 22nd March 2010:

Re: my request under the Consumer Credit Act 1974

This account is in dispute

 

On 09/07/2009 I wrote to Marks & Spencer Financial Services PLC requesting that they supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied with a 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 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 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

 

 

I received a response from Fenton Cooper dated 25th March thanking me for my letter and saing they will contact their client and get in touch with me shortly.

 

 

So far - nothing.... no surprise there, then.

 

 

 

Not quite sure where to go with this now!

 

 

 

Am I back to the waiting game?

 

 

 

sigh

Minx

[seriously fed up]

Just wait. From what you say I suspect the sols are saying to M&S what do you want us to do - is it stick or twist? I suspect it will be stick - but all you can do is wait and see. Fentons dont seem to be in a rush to take it on to the next stage.

Perhaps another DCA?