CCA Marks and Spencers Money

[Curlyben]

Re: CCA Marks and Spencers Money

Nice idea Londoneye and thanks for the heads up, BUT, if the prescribed terms are NOT included within the four corners of the credit agreement, they can reference what ever T&C's they like as they are meaningless.
This was covered off in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

Sched 6 of SI 1983/1553 lays down precise format for credit agreements, which basically states that all prescribed terms MUST be within the signature document and not under a seperate T&C heading or sheet, they come under important financial information and should preceed the customers signature.

[SarahG]

Re: CCA Marks and Spencers Money

Hi just for confirmation the scan was not very clear however the copy that I have on my file does not refer to any terms and conditions be it overleaf or anywhere, saying that it would be good to see what is actually overleaf as all I have is one sheet of an application form and a separate document of four sheets which are A5 size and would be back to back.

Thanks Sarah

[SarahG]

Re: CCA Marks and Spencers Money

Hi I decided to get a magnifying glass and type out the actual text that is not very legible - how sad am I!

Before granting credit we will search the files of one or more credit reference agencies who will supply us with credit information from the Electoral Register. These agencies will keep a record of the search whether or not this application proceeds and this information may be used by other lenders in agreeing applications for credit by you and those with whom you are linked financially and/or for debt tracing. We may make periodic searches of credit reference and fraud prevention agencies to manage your Account with us, to take decisions regarding credit, including whether to make credit available or continue to extend existing credit. The searches will not be seen or used by lenders to assess your ability to obtain credit. Your name address an date of birth will not be made available to companies outside the Marks and Spencer Group for marketing purposes, although the data may be held by the Marks and Spencer Group of by approved organisations which may include insurance companies in under to maintain your account for testing, monitoring, training and to process your account and in respect of insurance products for underwriting and claims handling. We may disclose any information relating to any account where in our reasonable opinion this is necessary for the prevention of fraud or money laundering or we have a legal obligation to disclose it to any person making the request. We may check your details with fraud prevention agencies and if you give us false or inaccurate information and we suspect fraud we will record this. We may share this information with the group and with other organisations to make decisions about you or anyone financially associated with you for credit or insurance purposes. You declare that you are entitled to disclose information about anyone else referred to by you and authorise us to search, link and/or record information at credit reference agencies about you and/or anyone else referred to by you. We will link applications and and/or any individual identified as your financial partner, at credit reference agencies, which will link your financial records. Thereafter each other’s information may be taken into account in future applications by either or both of you. You have a right to ask for a copy of the information we hold on you and to have any inaccuracies corrected The Marks and Spencer group may use your details to send you information about other goods or services or for research purposes. If you prefer not to receive such information/research please tick the box.
I confirm that the information that I have given is true and correct. I understand that at its sole discretion, Marks and Spencer Financial Service plc may decline to issue me with a &more credit card, or subsequently cancel it and that, if I have applied for a credit card. Marks and Spencer Financial Services plc may issue me with a Marks & Spencer Chargecard.
Once you have signed this agreement, you will have for a short time a right to cancel. Exact details of how and when you can do this will be sent to you by post by the creditor.

[veilside01702]

Re: CCA Marks and Spencers Money

Hi SarahG....
Just an idea that ame might say can't be done..... but can you not negotiate removal of data from credit reference agencies as part of a settlement ?
Could be worth doing if they have recorded data that might hurt your credit scoring?
If this is as it appears to be an application form and they produce a different agreement in court, then they would have NOT supplied the requested agreement under your section 77-79 request, but knowingly supplied incorrect documents??

anyone agree??
just a few idea's sarah to see if there is anything else we can come up with....
Russ

[Londoneye]

Re: CCA Marks and Spencers Money

Hi Sarah G, sounds ok, just check at the top of the page where it says this is a credit agreement blah blah blah, Curlyben, don't know what your qualifications are, but I can assure you that t's & c's overleaf will be accepted by a court as being embodied within the same document.

[Londoneye]

Re: CCA Marks and Spencers Money

Curlyben, just re read my last post, apologies, I shouldn't be questioning your knowledge, you have clearly studied the CCA1974 in detail. I stand by what I said though. Most county courts will side with the establishment if they possibly can, this is one of those areas where they can and will. Although it doesn't look like it will be relevant to SarahG's claim anyway.

[Ruby]

Re: CCA Marks and Spencers Money

Hi me again, not been checking into this post recently. I was supplied with the same one sided application form as Sarah and a completely separate leaflet stating T & C's. It is a horrid shame that the county courts feel they have to side with the establishment no matter what .....

[SarahG]

Re: CCA Marks and Spencers Money

Hi I am confused after Ruby's post, does that mean that this would be enforced in court? Am I right to try and get a low full and final settlement because of the unenforceability?

Thanks Sarah

[Curlyben]

Re: CCA Marks and Spencers Money

To follow on from Londoneye's comments.
Unless the creditor could PROVE that the prescribed terms where indeed embodied within the T&C then they would still be unable to take enforcement action.

They would need to show that any T&C's supplied for court where indeed included with the original agreement and not simply generic terms.

It's really a case of who blinks first and how far you are prepared to push them.

[Londoneye]

Re: CCA Marks and Spencers Money

Hi all,

I seem to have confused the issue here, if the prescribed terms are on a seperate document, or are overleaf but there is no reference on the front to the terms being overleaf, (as seems to be the case with SarahG & Rubys agreements), we believe this would be unenforceable.
If the first page refers to terms overleaf and those terms contain the prescribed terms, we believe the agreement would be enforceable.
Hope this helps!
------------------------------- merged -------------------------------
Me again!
If the terms are referred to and there is any doubt as to whether the terms supplied relate to that particular agreement, or indeed were overleaf, we would expect the agreement to be declared unenforceable.

[SarahG]

Re: CCA Marks and Spencers Money

Hi All, update on this. I had a reply from the FOS who said the usual however he did indicate that the 'agreement' would probably not be enforceable in court. With that in mind I sent a 10% F&F but they refused I upped the offer a little and they have still refused but said if I ring them we can come to an amicable monthly payment.

What do you think I should do - negotiate a monthly payment or say take me to court?

Advice would be greatly appreciated.

Thanks Sarah

[Ruby]

Re: CCA Marks and Spencers Money

Hi Sarah, I believe from memory you and I have the same application form. From what I have read in recent times, it appears that the original Terms and conditions have to be embodied in the agreement or at the very least the agreement has to refer to the T & C's enclosed. In my application form neither is the case.

It is up to you, you will ruin your credit rating if you stop paying them. I'm no expert on this matter but for what this is worth this account is unenforceable and therefore they won't take you to court but bombard you with phone calls.