Advice please - M&S taking Court action

[Pumpkinhead]

Hi all. Hope someone can give me some help. I've been trying to get copies of CCAs from Marks & Spencer Financial Services for a credit card and a personal reserve account.

 

I've sent the standard letters (bearing typed signature) requesting the two CCAs and the £1 postal orders. They replied quoting the Data Protection Act that they needed my signature before they would release the documents.

 

I replied with a standard letter I found on CAG telling them that this was not necessary under the Data Protection Act etc. They have sent me a form to fill in and sign and keep insisting I sign something before they will comply.

 

I have advised them I consider both accounts to be in dispute, but they still apply charges and now I've received a Default Notice for the Personal Reserve account.

 

My question is "How can I get them to send me a copy of any CCAs they hold without actually "signing" something? If I make a SAR I am assuming they will again want that to be personally signed. I did see something on here about digital signatures but I can't find that again now.

 

I would so welcome some help with this.

[supasnooper]

Have a read of this thread -

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

and this one

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/165349-smt37-morgan-stanley-goldfish.html

[Pumpkinhead]

Thanks for the thread suggestions Supasnooper. I've looked at these before but am not sure this will help to resolve my situation. I've actually written to them asking for the information pursuant to the CPR, but they have replied saying that as my letter is unsigned they won't send me anything. I've also previously sent the letter (found on CAG) about not needing my signature for Data Protection purposes and asking if I could view the documents at their offices and provide evidence of my identity then.

 

Do I have to sign a request to them in order to get anything at all? I have been reading lots and lots of threads and my brain is churning in confusion. I have foolishly gone down the road of asking for CCAs with a number of companies and my stress levels are going through the roof.

[supasnooper]

There is no requirement for a signature for CCA requests under s77\78.

 

As they haven't provided the CCA, put the account into dispute.

 

You can follow the path described in pt2537's thread for disclosure of the CCA, if they won't comply then they have breached the Pre action Protocols Practice direction.

 

A guide to digital signatures can be found here - http://www.consumeractiongroup.co.uk/forum/general-debt-issues/110578-digital-signature-guide.html?highlight=Digital+signature

Edited May 17, 2009 by supasnooper
typo

[Pumpkinhead]

Thanks for that Supasnooper. I've already put the account into dispute. They've ignored my initial request made using the CPR, so I need to move on from there. I will read PTs thread again. Does this mean I need to take them to court or at least start that process?

 

Sorry if I appear really dense but I am just so stressed out with it all. I am really struggling to make sense of anything at the moment.

[Pumpkinhead]

Dear old M&S have sent me a default notice against my Personal Reserve account. They have quibbled endlessly about wanting my signature before they will send me anything. Strange that they were happy enough to send a Default Notice. So, no sign of any documents from them. I have written a letter of complaint to them regarding the issue of the DN and have previously requested the docs under the Civil Procedures Rules. I have reminded them of this and told them if I receive nothing within a certain date, I will ask for a Court Order.

 

Is there anything else I should be doing about this?

[citizenB]

Thread moved to the newly opened M&S forum:grin:

[MARKWHEETY]

If you are having a problem - send a copy of a utility bill with their next request.

 

You do not have to provide a signature but by sending a copy of an up to date utility bill you are proving your identity by living at the address. Make it something like a Council Tax Bill and they will comply.

 

wheety

[citizenB]

If they are being difficult as regards to signatures.. you can either

 

a) sign your name. .making it ever so slightly different, then put some large " XXX" through it in a lighter ink.

 

or

 

b) click on the following link....

 

Do you worry about using your signature when writing to banks, debt collection agencies, etc?

 

HTH

[Elgrand]

Hi Pumpkinhead,

 

I've just come across your thread whislt looking through the M&S section and i have had a similar problem to you as with regards M&S stalling for a signature.

 

I say stalling because i cca'd them in march and have numerous letters saying they need the signature.

Just today, i received my cca and i firmly believe this was a direct result of them not being able to locate it. They even state in their letter that it has taken them a long time.

 

I will post up all the details later on my thread when i get the scanner working. Cant do the link thing, not that good at it, but you will find it in the forum.

 

My most recent letter to them included this qoute:

 

You also state in your letters, that your organisation will not release information where there is a risk that it is not a bona fide request from your customer and you do not believe this to be unreasonable. I would therefore like to draw you attention to the Data Protection Good Practice Note: Checklist for handling requests for personal information (subject access requests) issued by the Information Commissioner’s Office. Section 2 states Do you have enough information to be sure of the requester’s identity? Often you will have no reason to doubt a person’s identity. For example, if a person with whom you have regular contact sends a letter from their known address it may be safe to assume they are who they say they are.

 

Now on the offchance that the above quote done the trick, it may be worth giving it a go.

 

Sorry for the long post.

 

Elg.

[Pumpkinhead]

Hi everyone. I need some help please as have now received a County Court Claim Form in respect of the above.

 

To bring you up to speed I first sent off requesting a copy of my CA in Feb this year. I received countless replies from them refusing to send this info until I had signed my letters. I complained to the FOS and eventually in early Oct I received the docs I'd requested. I received the CCCF on 15 Oct and I do not believe they have given me enough time to read the documents supplied and replied.

 

First Point. M&SFS issued a DN back in May (before I had been given the docs and I had even asked if I could visit their offices to see them). I think this DN is invalid. It is dated 6 May and arrived with me on 9 May. I date stamped it but do not have envelope. I understand that they must allow 14 days after date of service. So, if I only allow 2 days for the letter to arrive if sent 1st class, this means it should have arrived 8th May. 14 days from then is 22 May. Their DN said I had until 19 May.

 

The docs sent are:copy of Personal Reserve (application form) which does bear my signature - account opened in 1999; photocopy of T&Cs purportedly from the time the account was opened; T&Cs dated July 08; Notice of Variation dated June 08 & a very brief Statement of Account.

 

Second Point. The copies supplied of the PR application form and the T&Cs do not appear to be of equal shape and size. However, on the copy of the T&Cs I can see the heading "Personal Reserve" in reverse showing through at the top of the copy. I also notice on this application form that it says "Account No:" and then gives a number that bears no resemblance to the account number I have and that DN etc refer to. Is this an issue?

 

The T&Cs say under Point 1 "This Agreement between you and M&SFS comprises these TL&Cs and your signed application form". This makes me believe they are two separate documents and I thought under the terms of the CCA 1974 it all had to be contained in 1 document. Is this an issue?

 

Point 4 of the copy T&Cs refers tothe Credit Limit but states "On acceptance of your application we will notifiy you of the amount of credit we have agreed to make available to you." There is no note anywhere on either document of what the credit limit actually is. Is this an issue?

 

Point 5 of the T&Cs relates to Interest. It has a small table showing that Accounts with a balance of £2k or more are currently (at that time) subject to 1.24% monthly interest and an APR of 15.9% variable, whilst Accounts with a balance of less than £2k have a monthly interest rate of 1.31% and an APR of 16.9% variable. How would I have known what interest rate applied to me as they had not set a credit limit at this time? Is this an issue?

 

The T&Cs do not contain any information about charges for late payments etc. Is this an issue?

 

On the County Court Claim Form, they have spelt my first name incorrectly. Is this an issue?

 

Also on the CCCF in the Particulars of Claim box they have stated the agreement number which is correct and the date the agreement was signed which is NOT correct. The date does not match either the date it was signed by me or the date it was signed by M&SFS. The month and year are correct but not the actual day. Also the date they state that the DN was dated is also incorrect by one day.They then say that the Claimant formally demanded repayment of the outstanding balance due on 20 May. Again, I think this is incorrect if it is based on their faulty DN. Is this an issue?

 

I would really appreciate your thoughts on a) the validity of the DN and b) the validity/enforceability of the CA. I can then make a decision as to whether I dispute the claim or not.

 

I will try and upload the documents, they are fuzzy and only just about legible.

Many thanks.

[Pumpkinhead]

Hi - can anyone help me please? I haven't had any replies or thoughts.

[Pumpkinhead]

I've posted this in the M&S credit card section some days ago, but haven't had any response. I'm really hoping someone can give me some advice on my queries. Any suggestions much appreciated.

 

I need some help please as have now received a County Court Claim Form in respect of the above.

 

To bring you up to speed I first sent off requesting a copy of my CA in Feb this year. I received countless replies from them refusing to send this info until I had signed my letters. I complained to the FOS and eventually in early Oct I received the docs I'd requested. I received the CCCF on 15 Oct and I do not believe they have given me enough time to read the documents supplied and replied.

 

First Point. M&SFS issued a DN back in May (before I had been given the docs and I had even asked if I could visit their offices to see them). I think this DN is invalid. It is dated 6 May and arrived with me on 9 May. I date stamped it but do not have envelope. I understand that they must allow 14 days after date of service. So, if I only allow 2 days for the letter to arrive if sent 1st class, this means it should have arrived 8th May. 14 days from then is 22 May. Their DN said I had until 19 May.

 

The docs sent are:copy of Personal Reserve (application form) which does bear my signature - account opened in 1999; photocopy of T&Cs purportedly from the time the account was opened; T&Cs dated July 08; Notice of Variation dated June 08 & a very brief Statement of Account.

 

Second Point. The copies supplied of the PR application form and the T&Cs do not appear to be of equal shape and size. However, on the copy of the T&Cs I can see the heading "Personal Reserve" in reverse showing through at the top of the copy. I also notice on this application form that it says "Account No:" and then gives a number that bears no resemblance to the account number I have and that DN etc refer to. Is this an issue?

 

The T&Cs say under Point 1 "This Agreement between you and M&SFS comprises these TL&Cs and your signed application form". This makes me believe they are two separate documents and I thought under the terms of the CCA 1974 it all had to be contained in 1 document. Is this an issue?

 

Point 4 of the copy T&Cs refers tothe Credit Limit but states "On acceptance of your application we will notifiy you of the amount of credit we have agreed to make available to you." There is no note anywhere on either document of what the credit limit actually is. Is this an issue?

 

Point 5 of the T&Cs relates to Interest. It has a small table showing that Accounts with a balance of £2k or more are currently (at that time) subject to 1.24% monthly interest and an APR of 15.9% variable, whilst Accounts with a balance of less than £2k have a monthly interest rate of 1.31% and an APR of 16.9% variable. How would I have known what interest rate applied to me as they had not set a credit limit at this time? Is this an issue?

 

The T&Cs do not contain any information about charges for late payments etc. Is this an issue?

 

On the County Court Claim Form, they have spelt my first name incorrectly. Is this an issue?

 

Also on the CCCF in the Particulars of Claim box they have stated the agreement number which is correct and the date the agreement was signed which is NOT correct. The date does not match either the date it was signed by me or the date it was signed by M&SFS. The month and year are correct but not the actual day. Also the date they state that the DN was dated is also incorrect by one day.They then say that the Claimant formally demanded repayment of the outstanding balance due on 20 May. Again, I think this is incorrect if it is based on their faulty DN. Is this an issue?

 

I would really appreciate your thoughts on a) the validity of the DN and b) the validity/enforceability of the CA. I can then make a decision as to whether I dispute the claim or not.

[Mrs E Blackadder]

Hi Pumpkinhead. I can't really comment on validity etc as I don't really understand those things myself. However, my reason for leaving a message for you is that my ex ran foul of M&S a few years back and all I would like to say is that you need to make sure you have everything watertight when deaing with them.

 

They were, without doubt, the WORST company to deal with once money ran short and they just did not care a jot about helping in anyway. Their so called solicitors were so rude and verging on the aggressive towards me, even though it wasn't my debt, that I was left absolutely astounded. Forget the nice friendly face of M&S - once you have any problems of a financial nature with them they will refuse to comply with anything and their attitude seems to be 'because we can'. They seem to just get their own way with the courts as well, and I was left with the feeling that unless you were a part of the old boy network then you might as well give up.

 

Sorry that I can't help with any advice about your agreements with them, but I hope that I can at least make you aware of how they will try to play everything by their own rules. But I suspect you know this already. Good luck, and go kick their smug boney arses!!!

 

ps: Can't help but think m&s have overstepped the mark with their slogan that 'It isn't Christmas without m&s'. Think I will write to them and point out that Christmas would still take place even if they disappeared tomorrow and that God, Jesus, Mary, Joseph and even the ruddy donkey are higher up the list than they are It just goes to show how full of their own self importance m&s are...

[mkb]

I need some help please as have now received a County Court Claim Form in respect of the above.

 

First Point. M&SFS issued a DN back in May (before I had been given the docs and I had even asked if I could visit their offices to see them). I think this DN is invalid. It is dated 6 May and arrived with me on 9 May. I date stamped it but do not have envelope. I understand that they must allow 14 days after date of service. So, if I only allow 2 days for the letter to arrive if sent 1st class, this means it should have arrived 8th May. 14 days from then is 22 May. Their DN said I had until 19 May.

 

 

Hi Pumpkin

Can't offer much help as it's all above my head really but I do know that the DN is NOT valid in that you haven't had the requisite 14 clear days for remedy. Even if they had hand-delivered it to you, it would still be invalid because 6th - 19th is only 12 clear days ie. 6th & 19th are not classed as clear days since these are the dates a) of the DN & b) the date for remedy.

 

1st - You should acknowledge the claim online intending to defend all of the claim. This allows you 28 days from acknowledgement to get your defence together.

 

2nd - Send a CPR 31.14 letter to the solicitors bringing the case, asking for a copy of the documents they are using to bring their case.

 

3rd - If possible, can you post up your paperwork for the experts to review & you will get loads of advice. Remember to remove any personal info, including barcodes - these can be used to identify you if not hidden.

Do leave dates in though

 

Don't worry if you don't get enough responses over the weekend as it can be a bit quiet on here when peeps are having family time.

 

I've asked the site team to move your thread into legal - you'll get lots of help there.

[maroondevo52]

Thread moved.

[Pumpkinhead]

Thank you so much for this.

[supasnooper]

First Point. M&SFS issued a DN back in May (before I had been given the docs and I had even asked if I could visit their offices to see them). I think this DN is invalid. It is dated 6 May and arrived with me on 9 May. I date stamped it but do not have envelope. I understand that they must allow 14 days after date of service. So, if I only allow 2 days for the letter to arrive if sent 1st class, this means it should have arrived 8th May. 14 days from then is 22 May. Their DN said I had until 19 May.

 

DN is invalid as explaind by mkb

 

 

 

Second Point. The copies supplied of the PR application form and the T&Cs do not appear to be of equal shape and size. However, on the copy of the T&Cs I can see the heading "Personal Reserve" in reverse showing through at the top of the copy. I also notice on this application form that it says "Account No:" and then gives a number that bears no resemblance to the account number I have and that DN etc refer to. Is this an issue?

 

Sounds like a "cut & paste" job which will interest a Judge and possibly make the CCA unenforceable.

 

The T&Cs say under Point 1 "This Agreement between you and M&SFS comprises these TL&Cs and your signed application form". This makes me believe they are two separate documents and I thought under the terms of the CCA 1974 it all had to be contained in 1 document. Is this an issue?

 

Point 4 of the copy T&Cs refers tothe Credit Limit but states "On acceptance of your application we will notifiy you of the amount of credit we have agreed to make available to you." There is no note anywhere on either document of what the credit limit actually is. Is this an issue?

 

No, they can actually use the phrase you have quoted.

 

Point 5 of the T&Cs relates to Interest. It has a small table showing that Accounts with a balance of £2k or more are currently (at that time) subject to 1.24% monthly interest and an APR of 15.9% variable, whilst Accounts with a balance of less than £2k have a monthly interest rate of 1.31% and an APR of 16.9% variable. How would I have known what interest rate applied to me as they had not set a credit limit at this time? Is this an issue?

 

No, they have stated the two possible interests rates for an account

 

The T&Cs do not contain any information about charges for late payments etc. Is this an issue?

 

No

 

On the County Court Claim Form, they have spelt my first name incorrectly. Is this an issue?

 

No, they'd just apply to amend. Best advise the claimant to advise the court to amend

 

Also on the CCCF in the Particulars of Claim box they have stated the agreement number which is correct and the date the agreement was signed which is NOT correct. The date does not match either the date it was signed by me or the date it was signed by M&SFS. The month and year are correct but not the actual day. Also the date they state that the DN was dated is also incorrect by one day.They then say that the Claimant formally demanded repayment of the outstanding balance due on 20 May. Again, I think this is incorrect if it is based on their faulty DN. Is this an issue?

 

Yes, all points for your defence with the claim.

 

 

Hope my comments are of help.

 

I would advise you research defective CCA's and DN's as these will be the major points of your defence.

Edited October 26, 2009 by supasnooper

[Pumpkinhead]

Many thanks for this Supasnooper.

[Pumpkinhead]

Supasnooper - I am just typing up the CPR31.14 request letter to send them.

 

Do you think I should also put in this letter that although it took M&SFS over 8 months to supply me with the copy docs that they unreasonably raised the CCC against me only 7 days after I had finally received the copy docs?

 

Could I then ask them to withdraw or delay this case?

 

I will hold off sending the letter until I hear back from you. Many thanks.

Edited October 26, 2009 by Pumpkinhead
clarify meaning

[supasnooper]

Wouldn't mention the delay in the CPR 31.14 letter........................best keep that for a Judge to read later on.

 

Get the CPR letter off by Recorded Delivery and do NOT sign it.

[Pumpkinhead]

Many thanks again Supasnooper. Letter sent unsigned and by Recorded Delivery. I also took precaution of faxing a copy over to them for which I have a safe transmission receipt.

[diddydicky]

i think i would apply to strike out the claim as there is no legal basis on which to bring the action -(the defective DN)= unlawful rescission

[Pumpkinhead]

Hi everyone. Here is an update.

 

I sent off my CPR31.14 on 26 Oct but have not received anything to date. Just rung and my request has been received. They (solicitors) have requested the info from M&S but not received anything. They are chasing them up.

 

Trouble is I need to put in my defence by 16th November. So far I have just acknowledged and said I intend to defend.

 

What should I do now? Can I apply to have the case struck out or request more time to put my defence together?

 

On another point should I ask to have the case struck out as the DN is defective?

 

Urgent advice welcome!

[42man]

I think you should apply an embarrassed defence, then await the AQ and request the judge order the other side to produce the documents in your draft order for directions....