HSM v M&S Credit Card

[Still_surviving]

These M&S threads go very quiet compared to other sections of the site lol...

 

Can anyone confirm that the M&S Final Demand mentioned above constitutes termination as it asks for payment in full?

[seriously fed up]

Well s87 says

"87.—(1) Service of a notice on the debtor or hirer in accordance with section 88 (a " default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security."

So by demanding full repayment they would seem to be demanding "earlier payment of any sum" (ie (b). But to do this, as you can see there should have been a default notice. Maybe they have done this and you didnt see (cant see a sign of this on the thread). If indeed they havent, then they might suggest that their "final demand" is a default notice, but it cannot be, as the Act is quite clear about the form and content of a default notice in s 88

"88.—(1) The default notice must be in the prescribed form and specify—

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be

paid as compensation for the breach, and the date before which it is to be paid."

So if this is a default notice they are well and truely stuffed from that respect. Also, you should be given time to make good the default - I THINK its 14 days - but for sure its more than 48 hours.

So, imo, this is not a default notice - though if they want their money back it should be - they cannot demand earlier payment without one. So unless they have sent you one separately and its not been posted on the thread, they are threatening to terminate unlawfully imo.

You suggested that M&S site goes quiet - this is because the endless stupidity of M&S stuns us into silence. The above is merely another example

[Still_surviving]

Interesting response from M&S today - they are saying that it was up to me to opt out of the new card, and that this was the procedure recommended by the OFT. Seems somewhat contrary to many threads ive read on the subject.....

 

http://i816.photobucket.com/albums/zz90/Still_surviving/Marks/Marks290310.jpg

 

Theyve also enclosed a copy of the letter they say would have been sent at the time in September 2003

 

http://i816.photobucket.com/albums/zz90/Still_surviving/Marks/MarksSample290310.jpg

 

I do like the line 'Im sure youll be pleased to know that you dont have fill in any forms or make any phone calls to get your new card"

 

Yes - im very pleased to be now faced with an outstanding debt on a card where the interest rate has been hiked to 27.9%.

 

Would welcome any further observations...

Edited April 1, 2010 by Still_surviving
see below

[seriously fed up]

two things

 

1. you have left your personal details on the letter (the one advising you of the new &more card - second link)
   
2. this is desperate stuff by M&S. To be honest, in some ways it was the stunt I feared they might pull with me - "well you took the card and used it" - but at the end of the day they didnt even have the nerve to take it to court. The argument I put to them was basically that &more was such a different "product" from the chargecard (higher limit, could be used anywhere etc) that it wasnt just "another" (replacement) card and so needed a whole new agreement, with a whole new sig and T&Cs.
   

One other thing - have they ever produced your chargecard agreement. They said they were going to rely on this with me and would produce it in court. Now it never got to court, so I never set eyes on it. Two possibilities here

 

1. it wouldnt have been compliant (it would have been signed 25 years ago now, so quite likely)
   
2. they couldnt actually find it (because it was 25 years ago) and hoped i would cave in before court
   

Or both these things.

But basically I think this is desperate. Write and tell them that in your view the two products are so different they would need a new agreement. Also its an offence to send an unsolicited credit token - you might have used it, but they shouldnt have sent it.

[Still_surviving]

Thanks sfu - you are echoing my feelings on the subject....will post a response on here once ive compiled it over the weekend

 

btw - that isnt my info on the sample (2nd link)...they are dummy customer details - thx anyway

 

Ive never had anything sent to me other than my original chargecard application. This was one of those complete, fold and send back mailers you could pick up in store. The link to it is posted earlier on the thread i think

[MARTIN3030]

Links at post 29 have been removed since they display personal identifiers.

If you want them re-uploaded,please remove personal stuff from them.

[Still_surviving]

Erm - i appreciate your concern for the protection of my details but i can assure you i am not Mr.A.B.Sample, Sample Street, Sampletown, Sampleshire

 

The account references / details are not mine either - the whole document is a dummy sampler to show what they would have posted in September 2003

[seriously fed up]

mea culpa, since i alerted the site team. I should have read on. I mean you could have been Mr Sample, but I agree where the hell is sampletown?

To make matters worse, I think they sent that letter to me as well (can we get an embarassed icon for situations like this?)

[angel_1]

Well January is always my busiest month of the year, so had zero time to spend on my credit related matters - however its nice and quiet now, so I think its time to get cracking

 

I have to say, my investment in a Truecall device has been repaid with oodles of peace and quiet....dear M&S collections have rung me 91 times in the last month, despite me having placed the account into dispute and requesting their confirmation that they do not hold a CCA for my current card.

 

Its a question of what to do next.

 

They are applying interest, but ignoring my letters now. I guess Im gonna get to a stage where I either ignore them totally, or tell them to put up or shut up.

 

My only concern is that if they take this to court, the balance will be over £5k and thus wont go through the small claims system....

 

Any one with a viewpoint on whats best now?

 

hiya im so glad you too have invested in the truecall device, im sure it has saved my sanity this past year, like you have said, its truely paid for itself in more ways than one:-D

 

keep up the good work, laters angel x

[Still_surviving]

Ah well - it took them a while but I received this 'threatlett' today from Moorcrofts

 

http://i816.photobucket.com/albums/zz90/Still_surviving/Marks/Moorcroft1.jpg

 

Is this standard fare?

 

Im going to write one letter, and one only, to them spelling out where we stand. Im still awaiting any response from the FOS

 

PS - Do all debt collectors use incredibly tacky looking letterheads?

[seriously fed up]

Imo, total bollocks

 

1. I have recently had dealings with them re Barclaycard and I got a letter from their solicitors Horrible Faraway or something - this was followed by a letter saying they were returning the account to their client. I asked who the client was - Moorcroft or B'card - and was told to ask Barclaycard. You havent even got to Horrible Faraway so you have a bit to go
   
2. the bit about a legal requirement is even more total bollocks. The guy who phoned me at 8.30 on a Saturday morning to tell me this probably still has the ringing in his ears
   
3. note the use of "to prevent our recommending to our client...." bit. This suggests that their client might take action - but they would have to recommend this. Will they recommend it even if you tell them to sod off? Well they might, but then again, probably depending on the evidence they might not.
   
4. this is then followed up by "a claim may be issued" - so there might be a claim or there might not. The number of definitely maybes in this letter suggests a serious lack of decisiveness.
   
5. This is then followed by what MIGHT happen at court if they issue a claim (they might not) or recommend to their client (but they might not) that they issue a claim (but the client might not either)
   

My sense is that if they were going to take action they would have done it and not issued frankly silly letters like this.

As for tacky looking letter heads, I suppose that is a matter of personal taste. I have always kind of admired (its the only thing I find admirable about them) one lot who use lower case in their stationery for their address. Quite stylish I thought.

[Still_surviving]

Another letter today....more carefully worded ifs and maybes.

 

http://i816.photobucket.com/albums/zz90/Still_surviving/Marks/Moorcroft010610.jpg

 

Ive written to Moorcrofts once, Im not going to waste the postage this time.

[seriously fed up]

You are so right about the ifs and maybes - they even put POSSIBLE in bold uppercase.

Whether or not to reply is a tactical matter. Some on here say you should. Others say not to unless its really necessary (eg some new point has been made/ piece of evidence put up). My own view tends toward the former - but its a personal matter.

However, what I would bring to your attention is this -

"In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs" This is taken from a letter by Susan Edwards who is Head of Credit Investigations and Enforcement, at the Office of Fair Trading (you can see the full thing here - m2ae kindly drew it to my attention on a problem of my own - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case-127.html#post2966431). It might be worth threatening to report them to the OFT on these grounds. I dont suppose it will deter them all that much, but it does indicate a potential opponent who does know their way around, which I think is more likely to put them off.

[Still_surviving]

Another letter from yet another company (though still part of Moorcrofts I see).

 

http://i816.photobucket.com/albums/zz90/Still_surviving/Marks/Midas290610.jpg

 

Do they think that by attempting to bludgeon me with paperwork, yet ignoring every reply I send them, I will suddenly cave in?

 

Im sending them a tailored version of my now somewhat standard response letter to DCAs - until their client complies with my request for a CCA I will enter into no further correspondence with any agent supposedly acting on their behalf.

 

In this case, Ive also pointed out that thus far, all ive had is an application form relating to a different account from the one they are seeking to collect.

 

If you read this SFU, do you think Im any closer to action being taken or is it yet another company attempting to treat me like an idiot?

[seriously fed up]

This is just a threatogram. Check out the wording - full of crap like "we are REVIEWING the account prior to the POSSIBLE recommending (sic) of legal action..." "To prevent POSSIBLE further action..." "Failure to contact Moorcroft MAY result in ..." "Definitely maybe" isnt in it - decisively!

Also despite appearing to be at least quasi legal they refer to the use of external sols.

But the killer is that if you check Midaslegal out on this site you will find that they have been sending out this letter for at least three years, and signed by the same M Dobson.

Its possible that M&S have come up with some new tale that they think they courts will listen to since they ran away from me (and from looking back on the thread our circumstances are pretty much the same). On the other hand I think I saw somewhere on here that HSBC (for it is really they and not M&S itself) have effectively written off all the monies for disputed &more accounts set up by unilateral, no agreement whatsoever accounts transferred from the Chargecard. Not that they will tell anyone this - otherwise everyone set up on this basis might get wise. I suspect they will still send out threatograms to rescue what they can, keep it quiet but not push it as far as court (as they would get gubbed and their utter stupidity might become public)

My guess? Another threat which follows on logically from the previous one. What happens next? They must be getting close to put up or shut up. My guess would be that your next communication will be from another bunch of DCA cowboys. If not I would be more than optimistic about seeing them off at court (or that they run away before then). You can put a good defence that has seen them off before now.

Edited July 4, 2010 by seriously fed up

[Still_surviving]

Thank you for the swift response SFU.

 

Oh well, another recorded delivery response being sent, which they will no doubt ignore.

 

Shall sit and wait for the next installment.

[Still_surviving]

After all the to-ing and fro-ing with M&S I was somewhat amused to receive this from Moorcrofts today:

 

http://i816.photobucket.com/albums/zz90/Still_surviving/Marks/Moorcroft130710.jpg

 

They obviously review their referalls really carefully....

[Still_surviving]

Ive recently discovered that an old personal M&S loan of mine had PPI on it (I must have been asleep)

 

Seeing as ive been self-employed for 20 years (and the CCA shows me self employed) I think I have a pretty solid case for mis-selling.

 

Did the math last night and it appears the claim will end up around £1900 plus £1100 statutory interest if we go that far. My question is, will

M&S have to repay that to me, or will they try and lay claim to it against this imho totally unenforceable cc debt??

 

With Thanks

[seriously fed up]

That rather depends on how it goes. They MIGHT roll over and accept the claim (well maybe minus the interest), but I suspect they would indeed then put that against the debt on the card. Then again I have had charges refunded me for cards with debts still on them - I have also had them used to "reduce" debts that werent enforceable.

If they didnt repay and you took the matter to court then its possible that the court would make an order requiring them to make good the loss that they have caused you by mis-selling PPI. But I suspect they would make a counterclaim for the debt. If, as you say, the account isnt enforceable at court, its important to remember that the debt doesnt just disappear - all it means is that the court is prevented (it will be 127-3) from issuing an enforcement order. So, as the debt, still exists (just cant be enforced) it might be open to the court to decide to order repayment, but against your debt.

If it were me and it got to court, I would want at all costs to avoid being manouvred into the situation where I was having to show the account wasnt enforceable - MUCH better to make them show that it is.

In any event, they might just pay up. Some do, some dont. I dont know about M&S - does anyone else?

[Still_surviving]

Thanks as always for the swift answer, SFU

 

Aye your thinking echoes my own I think. I dont particularly want to rock the boat as after all, two days ago I didnt even know about this PPI claim.

 

I just wondered if PPI claims were different in some way, and had to be repaid to consumers.

[slick132]

Hi SS,

 

First off, if this is for an old loan, you'll need to have kept the relevant doc'ts yourself. The bank may not produce them in an SAR reply if they go beyond 6 years.

 

Best option IMHO is to claim back the PPI plus compound interest at the loan's contractual rate. They'll refuse to pay this so you'll take court action. If your case is well prepared and you win, they have to repay to you direct.

 

They may not make any counterclaim for the o/s debt. However, you may consider it fair to settle the debt or make a F&F settlement offer.

 

Do the maths on a compound spreadsheet - you may find you clear the debt and still have money left over.

 

8-)

[Still_surviving]

Fortunately I have all the paperwork relating to the loan - the paragraph about PPI runs to a princely 3 lines lol

 

Ive decided Im going to go for the maximum i can get from them (via court if need be), but allow them to offset the

settlement.

 

It would knock the card debt below £5k which could be useful if they started to fire their guns at me.

[slick132]

Sort out the figures first on a spreadsheet.

 

Then take it from there.

 

8-)

[Megan1olivia1]

Many thanks for those who have posted on this thread. im hoping for some advice. I have an m&s cc converted from a store card. I took the store card out in 1990 by not opting out.The thread is very long an no one seems to have won a case against them.I am thinking of paying a frim to fight this for me.They charge a fee that I can put on the cc so there is little risk. My question is simple,is it worth it,has anyb ody won. Many thanks,its guys like you that deservbe to have their balances written off for all the help you give

[Still_surviving]

This is only my opinion, but please dont pay anyone to take on your case if its circumstances like mine...

 

The reason no one has won a case, is that no one after SFU has been issued with court papers (touchwood) lol. Why would you press the issue

unless you are trying to get a court to declare the agreement unenforcable? With recent court developments, such actions where you act as plaintiff

are pretty much unwinnable.

 

In my case, I am awaiting court papers, with the knowledge that if they arrive, my defence is going to be very robust. Much better to be a defendant in

these cases, as the onus is on M&S to prove the account enforceable.