M & S Chargecard + Loan CCA returns - enforceable ?

[Izzy40]

Hi, I have attached a copy of the CCA received from M&S re my chargecard. Can you take a look and advise me so I know how to proceed. There was a separate page of general terms and conditions but nothing signed by anyone.

 

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[cerberusalert]

Send them this;

 

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 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 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

[Izzy40]

Ok, thanks again for your help.

[Izzy40]

http://i30.tinypic.com/2mmwm0z.jpg

 

Hi, please see attached a copy of a loan agreement from M&S. Can anyone advise me if this looks enforceable. There is a second page of t&cs but with no signature which I can attach is necessary. Many thanks.

 

Please, is anyone able to offer me some advice on this one? I think it may be enforeceable. Please reply if you can.

[andydd]

Please, is anyone able to offer me some advice on this one? I think it may be enforeceable. Please reply if you can.

It all looks enforceable

 

Loan amount, repayment schedule, apr, signed (not by them but I suspect a stamp is good enough), they are all there.

 

The loan and ppi appear to be seperated out too.

 

Any reason you think it may be unenforceable. ?

 

Andy

[Izzy40]

No, I thought it was enforceable. Just wanted a second opinion as new to this. Thanks for your reply.

[postggj]

first thing is cancellation rights/termination

 

they should be on the agreement not seperate unless they can be linked to the agreement

[Izzy40]

Ok, so what does this mean?

[andydd]

first thing is cancellation rights/termination

 

they should be on the agreement not seperate unless they can be linked to the agreement

 

Is that a prescribed term though ?

[Izzy40]

Just wondering if anyone else can confirm 100% if this CCA is enforceable. The last couple of replies have caused a little bit of uncertainty and I want to be sure.

 

I have a loan a/c and credit card a/c with the same company ..... the credit card CCA does not seem to be enforceable but the loan probably is, which makes it awkward I think to put send the AID letter as they may then in turn be very awkward with the enforceable CCA. What does anyone else think?

[andydd]

Well..In IMO its enforceable as it has all the prescribed terms, but if i were you Id search around here and find out a bit more info about it yourself, I initially knew nothing about CCA's etc but I now consider im quite informed. I certainly wouldnt want to start 'taking on' big banks, etc unless i was 100% sure myself, not just relying on posts from here.

 

There are some good stickys here regarding enforceability and prescribed terms.

 

Andy

 

Andy

[Izzy40]

Andy, I apologise for not being 100% sure of everything but that is why I joined this forum, to seek help, guidance and often just a little bit of reassurance.

[exasperated]

Hi Izzy,

Not saying that any of the previous comments are right or wrong but if you are not happy don't make any decisions until one of the site team or senior caggers confirm it is enforceable.

Exasp

[B3rty]

OK...Its enforceable as it contains all the prescribed terms however you have PPI and maybe this was miss sold if so then you can put the account in dispute and claim it back

 

Have a look at this thread

 

http://www.consumeractiongroup.co.uk/forum/payment-protection-insurance-ppi/61081-ppi-some-notes-claimants.html

[Izzy40]

Thanks for your help.

[IdaInFife]

agreed

 

ida x

[Izzy40]

Hi, I have read the PPI rules, but can someone confirm that if I wanted to start the ball rolling here, would I write to the OC or DCA about the matter and put the account in dispute at the same time ?? Thanks.