Is My M&s Cca Enforceable??

[exasperated]

Hello,

I wrote to M&S for a copy of my CCA, in response they sent a nasty letter saying that they now demand the full amount, it was previously being paid through the CCCS on a DMP.

Please could you have a look at the CCA below to see if it is enforceable

Thanks

Exasp

 

[cerberusalert]

No, see http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/105315-my-agreement-enforceable-useful.html

 

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

[exasperated]

Hi Cerb,

Letter on way, thanks for your time

Exasp

[exasperated]

Hi,

Here is the reply to the letter scripted by cerb above, anyone any thoughts on what to respond with

Thanks

Exasp

 

[cerberusalert]

They can wait eight weeks or eight months, what they have produced is not an enforceable agreement & unless they are utterly stupid they know it.

 

Personally I wouldn't get into a game of postal ping-pong with them and would wait for them or a DCA to contact you.

[exasperated]

Hi

Further letter from M&S whom I have now stopped payments to...

 

[cerberusalert]

It may well state that, but unless it includes the prescribed terms it is unenforceable. The application form they supplied doesn't so they haven't a leg to stand on.

 

Ignore them for the time being because the balls in their court now & it's pointless you getting involved in a game of postal ping-pong.

[exasperated]

OK cerb,

Will do

Thanks

[IdaInFife]

we have a had a few cases with m & s up here and not one of them have they won.

 

all with the same docs as you and m and s settled after bringing court action

 

got one peep at the mo making an full and fianl on the back of ones of these as well

 

ida x

[exasperated]

Hi Ida,

Well I have stopped paying them now so I will wait a few days like Cerb said. Thats great news as it is my desire to get a F&F of em so when its appropriate if you have any idea's on how they went about it I would appreciate that info

Thanks

Exasp

[IdaInFife]

still waiting in a reponse but will let you know

 

idax

[exasperated]

Hello,

I have settled this account with a reduced F&F, thanks everyone for your help