M&S money Credit Card CCA Problems

[seriously fed up]

Silence is about as much as we can expect tbh.

[EOS-5D]

I spoke too soon!!

 

I recieved a letter from Jayne Ellett this morning, which I have attached.

 

In my previous letter to them, I asked them to explain to me S61(1)(a) and also to explain why it has no bearing on my agreement.

 

Needless to say the attached reply from them doesnt include any answers to my question, it just says what she's been saying all along, that the agreement is enforceable as it complies with S61(1)(b) & S189(4).

 

I'm going to insist that it DOESN'T comply because of S61(1)(a) and that maybe I need to take a peak at the ORIGINAL agreement at their premisses.

 

Can anyone see anything else that I may need to add to my reply.

 

 

Kind regards and many thanks in advance

 

EOS-5D

M&S CCA REPLY 12.pdf

[seriously fed up]

Hope you enjoyed the silence then - while I would agree with you "we surrender" would be best of all, its better than the alternative (ie this).

Look they cannot admit that you are right.

You might want to quote this at them - its from Wilson v Hurstanger in the HoL:

" "...Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest miss-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them."

and you should be able to find it at http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/144167-bb-cabot-2.html. However they will come back with "they were on the back". To see how much confidence they have in this position, get yourself along to your local M&S and lift a credit card application pack - have a look at the application. You will see its still two sides of one page, but with the crucial difference that on one page there is room for the usual personal details, BUT with the crucial difference that the sig box is now on the other side with all the T&Cs (including the prescribed ones).

Its interesting too that in her letter she constantly refers to 1b and never 1a. You might want to push on that point - take her through the consequences of not complying with 1a (ie 65 and 127 3) and ask her if she considers what they have provided is compliant with 1a (not just 1b), and is she aware of the consequences?

 

[EOS-5D]

Hiya SFU,

 

I knew it would only be a matter of a few days before I got another letter from them.

 

I'll get my reply done right now.

 

Thanks everso much, yet again, for your speedy and informative reply.

 

You're a real star.

 

Many thanks & kind regards

 

E5D

[EOS-5D]

Good Morning All,

 

Ive had another letter from M&S today, but this time its from Graham Officer (does his name still make you chuckle SFU) and seems to be a reply to the letter that I sent to PLR !!!

 

It doesn't seem to be saying anything different from the ones Ive had before from Jayne Ellett other than a mention of the court case Carey & others Vs HSBC & Others, but I thought I should post up on here just in case.

 

Does the fact that Ive now got a letter from Mr Officer has any significance.

 

 

Kind Regards

 

E5D

M&S CCA REPLY 13a.pdf

M&S CCA REPLY 13b.pdf

[citizenB]

You are wasting your time backing and forthing with any Creditor in respect of the CCA, in particular HSBC and M&S.

 

I would however be interested to know of the "law" that allows them to telephone you up to 4 times a day and make contact only once.

 

So are they claiming here.. that they can speak to you on the first call and then make 3 silent calls ? I rather think not.

 

They are obviously not going to address all of the queries you have and just dance around their own crib sheet.

 

Can you just confirm what two pages are supposed to form the back and front of the Application form ? Obviously I can see what the front page is..

 

The other pages are obviously part of a fold up leaflet and I see dates of 2006 and 2008, where if the application was made in 2003 would make the pages incompatible with the front !!

 

Sooooo.. what you really need is the text that would have been on the back of the application form at the time you signed it.

 

If M&S want any separate pages to be considered as part of the original document, then it has to refer to them somewhere in the applicaton form . I cannot see clearly enough to say whether or not any mention is made of referring to another document !

 

Regardless, I believe all the key information ie Prescribed terms have to be in the signature document although it can be double sided.

[seriously fed up]

the problem that they have Citizen B is almost certainly this - they photocopied the front page, but not the back. So all they can do is assert that a blank two page doc is what was signed.

And I completely agree that the prescribed terms should be on the sig side. Interestingly so do M and S - check out their current application form - personal details on one side, but terms and conditions on the other ALONG WITH the sig box.

As for ignoring them, this is always a matter of personal tactics. I tend to the view that I have seen Vint put forward - always have the last word. But, I see your point when you are just going round and round the main beneficiary is the Post Office. At the very least, I would suggest if they introduce a new point - no matter how arcane - there must be a reply.

I was much influenced by the Clinton campaign's use of "instant rebuttal".

[EOS-5D]

Just had a phone call from Alan Davies @ PLR, who said that even though the alleged account us in dispute, we still have to pay them. He also said that because of the arrears M&S could go for a charging order.

 

I'm just doing a letter of complaint now. He should know full well that he shouldn't use threats like that.

 

Just need clarification on the arrears. I thought if the account is disputed, we were under no obligation to make payments. He said that they'll refund any payments if the agreement was found to be unenforceable!!!!!!!

 

So, if he's right. How far back do they refund payments or is he talking rubbish

 

 

Cheers as always

 

 

E5D

[seriously fed up]

you have forgotten lesson 1. Never speak to these people on the phone. Just tell them that you are not playing their ridiculous security games, and will only deal with the matter by correspondence.

If the account is unenforceable in law they wont get a charging order because the account cannot be enforced in law. Check out the OFT guidelines on debt collection (you can google it) to get some ammo to throw against them. You need something more substantial than you dont like this.

The issue isnt that the account is in dispute, its whether the account can be enforced in court - see quote from Wilson v Hurstanger below. Its whether or not it can be enforced - whether the lender has fulfilled the signing requirement of the CCA (s61 1a) and so loses all their rights under the CCA and to reclaim their money by court order - that is what the dispute is about. That isnt the same as saying that the debt disappears.

It almost goes without saying that M&S will agree with this, far less the DCA monkeys that you have been dealing with today, who isnt so much talking rubbish as saying what he thinks he needs to say to get at least the arrears out of you. Remember that the DCA gets paid by results as does the guy you have been talking to. This isnt about truth, its about results.

[EOS-5D]

The aforementioned Mr Davies has sent me the attached letter .

 

Whilst I think I have the answers to most of his points, (already covered earlier in the thread, thanks SFU), I wondered if they could still record a default on my credit file even though the account is disputed and whilst enforceability of the agreement has yet to established by a court.

 

Many thanks in advance

 

E5D

PLR2.pdf

 

Me again,

 

Ive just checked with Companies House and they have NO listing for PRE LEGAL RECOVERIES. We all know that they're just another desk at M&S and when asked they say they're a seperate company owned by M&S.

Seeing as there is NO listing for them at Companies House, are they (M&S and PLR) breaking any laws by mis-leading us into thinking this company actual exsists and by chosing the name they have, mis-leading us into thinking LEGAL action is on the way.

 

In my reply to the above post, I'm going to ask PLR for their company details; reg no, directors; registered office etc etc

 

Cheers

 

E5D

[citizenB]

So, there is a dispute over the agreement.

 

They are now threatening to send someone to your home to collect payments. Just how does that work pray ? They have no court order and you are not giving them permission to attend your home.

 

Are they aware of OFT Debt Collection Guidelines.

 

They say you have you have ignored their attempts to contact you directly.. hmmm, by that of course they mean have you phone them. You have, as is your legal right, requested that all communication be kept in writing. That way you protect yourself in the event of any litigation.

 

They are also threatening to trash your credit rating with a default. Their thread is quite explicit, in that it could affect any employment opportunity. Isnt going to help their cause if you are unable to work is it ?

[EOS-5D]

Thanks CB

 

I've just downloaded the CAG Toolbar ;-)

 

Take Care

 

E5D

[seriously fed up]

This is doorstep collection- often threatened, but how often do they actually do it? See letter 3 here The Consumer Forums - Debt collectors and also the more detailed advice if they do actually turn up. This is on the next page

There is a discussion about whether they can register a default or not, even though the account is in dispute, or is clearly legally unenforceable because they have not fulfilled their duties under the CCA in some way (eg the signing requirements s61). You can find this here - most recent stuff first so it might be an idea to start a few pages further back, or just work back - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case-138.html. Some argue they cant, others (I am probably in that group) say they can as I would say while they lose their rights under CCA, it doesnt mean they lose all of them. That view is though disputed (probably a minority one on the discussion). BUT, it is clear that any information that they register does certainly have to be accurate.

As for ignoring them, CitizenB may well be right - you havent phoned them. However there is another DCA - think of the very top of a roof - which seems to run on sort of auto pilot with increasingly horrible threats made every couple of weeks. I suspect it can only be stopped if you utter the words they want to hear - "I surrender".

My view? Another threatogram (though I suspect they will register a DN). You might want to poke them on misrepresentation though. It wont take you far - I dont think there is a law preventing M&S (or actually HSBC) having their own inhouse debt collectors with another name in the hope that this spices things up a bit (even if it is just another name, and probably is another desk in the same office). Barclays do it with Calders for instance (though I think Calders is a properly registered company?).

[citizenB]

Barclays do it with Calders for instance (though I think Calders is a properly registered company?).

 

Off topic I know, sorry EOS, but just responding to seriouslyfedup.

 

Calders are actually Mercers trading as.. the chain of command as another cagger found out just recently is

 

Barclays Bank plc - Barclays Bank plc t/as Barclaycard - Barclaycard t/as Mercers - Mercers t/as Calders Financial. Take on any one of those and it would appear you take on the lot with Barclays Bank footing the bill

[seriously fed up]

Knew Mercers were in the family tree somewhere, but couldnt think how. Thanks Citizen

[EOS-5D]

Hi Again,

 

I've had a reply from M&S this morning (attached), In my letter to them, I asked them to explain why S61(1)(a) doesn't apply to my alleged agreement with them. They completely ignored this question in their reply.

 

I also asked them if I could visit their offices to view the ORIGINAL document. As you will see in their reply, they have refused this, saying there is no need and enclosed a copy of the photocopied application form.

 

Interestingly, you will also see that they have referred to this document as an "agreement form". Surely an agreement is an agreement and NOT a form!!!!

 

EOS-5D

M&S CCA REPLY 15.pdf

[IainHL]

Ah, back to Jayne Ellett this time I see! As SFU said (I think it was earlier in this thread), of course their legal department is going to agree with them. It is hardly there to agree with you, is it?

 

I feel you are now at this stage (please note that this was written to one of their DCAs):

Regarding the alleged debt Marks & Spencer Financial Services believe that what they have supplied to me is a legally enforceable document. I do not believe that it is. If they truly believe that it is then no doubt they will take this matter to court. That is their prerogative, but I will vigorously defend any such action. You may consider this to be my final response on the matter, and any future letters from yourself will be filed, but not responded to.

with thanks to Slick132

In the light of their intransigence I don't think there is much more you can do.

Edited July 5, 2010 by IainHL
Added credit to Slick132

[seriously fed up]

Ok lets go through their letter paragraph by paragraph

Paragraph 1 is basically to get you worried - an obvious interpretation is "the tame lawyer we keep in a box in a cupboard says that we have you by the short and curlies mate, so you either better get your legal eagle on the job (at whatever expense to you) or pay up like we said".

Paragraph 2 is we have fulfilled the requirements of s78 as that nice Judge Waksman said, by sending you out any old rubbish.

Paragraph 3 - pay up or we are going to keep phoning you

Paragraph 4, if you think you are hard enough (and stupid enough) get the OFT on to us.

Responses to these are quite straightforward

Paragraph 1, just ignore them - just threats

Paragraph 2 - Waksman distinguishes between the "information purpose" (s78) and the "proof purpose" (s61 and 1a in particular). Its interesting that when they refer to s61 its always to 1b which only requires terms to be embodied and not contained as 1a does. You might want to write back and ask them if the consider whether they feel that 1a would be satisfied by the documents they have sent you, or whether they think a court would accept what they have sent as 1a compliant (IainHL's suggested wording is very good imo). My guess is that they will ignore you and instead hide behind 1b or having fufilled their requirements under s78. But you have asked.

They wont let you see the original because all they have is a microfiched copy of the front page of your application. So in a sense they are right here - they have already let you see all they have, so going to their office to view it is a bit of a waste of time.

Paragraphy 3 - I tried using this one - doesnt always work, but it does sometimes -

"Secondly I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.

I now require all further correspondence from your company to be made in writing only.

I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

If you continue to harass me by telephone, you will also be in breach of the Wireless Telegraphy Act (1949) and I will report you to both Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

Be advised that any further telephone calls from your company will be recorded."

The last bit is particularly good, as even if you arent, they dont know that and have to work on the basis that you are. Btw, they will write back saying that they do not consider what they have done to be unlawful (and to be fair it might not be) but you arent concerned with the calls you have had so much as stopping them in the future and if it does this (or even reduces them) then it has achieved your purpose

 

Para 4 - your time is better spent watching the World Cup than contacting the OFT, unless M&S have come to your door, set fire to your house and sold your kids into slavery OFT wont want to know. They might get a warning, but M&S would say its embodied in the terms and conditions that they can do this, and point out that the OFT dont actually have the power to stop them. Seriously, I havent seen OFT side with anyone other than the banks, or say "nothing to do with us gov". Dont do it.

Edited July 2, 2010 by seriously fed up
add ref to ianhl's post

[EOS-5D]

Thanks Guys.

 

What about Ms Ellett referring to the alleged agreement as an "agreement form".

 

Any implications??

 

Cheers

 

E5D

[seriously fed up]

she could call it the Turin Shroud for all the odds it would make. Just the same as it if waddles and quacks its probably a duck, if it says application form at the top its probably an application from.

This is the usual guff. You make an application and they look at and decide to send you a card, so by employing Paul Daniels to do the necessary it becomes an agreement.

For one thing, the application form is just that - its an application form - check it out - if its like any of the forms that i have seen it will have phrases in it such as "if my application is accepted". Thus, I would contend that s59 applies - "59.—(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.". At the time that you signed that form it was no more than prospective - filling it out didnt get you the card - the agreement with the bank at that point was no more than prospective (in any sense of prospective that I know) and thus it has to be void.

[EOS-5D]

Thank you SFU.

 

Very much apprieciated.

 

E5D

[SRR1972]

Hi ESD

 

I am at pretty much the same point in the process and same issues really - application form not application.

The advice you are getting above is good 1 wee point for you I got a truecall system to screen my calls and its worked a treat no DCA can get through - google it to see the details if your interested

 

S

Edited July 3, 2010 by SRR1972
cos I cannea spell !!

[EOS-5D]

Cheers SRR, I'll take a peek at that.

 

Right, I've had a reply from M&S to my letter to PLR, asking them for they company details (comapny registration number, directors etc etc) because when I checked with Companies House, PLR do not seem to exsist in their own right.

 

In the response (which for completeness, ive attached) M&S now refer to PLR as "their pre-legal recoveries TEAM"

 

Looks like the corner in which they are painting is getting slightly smaller

 

Kind Regards

 

E5D

M&S CCA REPLY 16.pdf

[seriously fed up]

go at this long enough and you will have them balancing on one leg

[EOS-5D]

Well, in my last letter to them, Ive told them to either get me in court to prove they are right or to bog off.

 

I dont think it will be too long until they're jumping on the spot on their pogo stick!!!! AND I wont be happy until they fall off