CCA Marks and Spencers Money

[Curlyben]

Re: CCA Marks and Spencers Money

Go for the formal complaint on #7 from Mocha's link

Can you scan and post, after removing personal information ??

If they are still refusing to budge there's a couple of routes open to you.
1/ a simple come on then if you think your hard enough and I'll see you in court.
2/ an official injunction against them taking further action an seeking declaratory relief in court under s142.
3/ just ignore them and wait for the DCA threats to start, which in itself can be good fun

[Ruby]

Re: CCA Marks and Spencers Money

How about if your want them to remove any defaults on your account because CCA unenforceable and get debt written off? Curleyben can you tell me the formal wording to use? Unfortunately DCA's calling is never good fun.
Lol
Ruby

[SarahG]

Re: CCA Marks and Spencers Money

Hi here is the agreement as a pdf, it hasn't scanned very well though. You may have seen one of these before? Definitely no prescribed terms nor does it mention any terms and conditions linking to it.

At the top left hand corner it says
IMPORTANT - YOU SHOULD READ THIS CAREFULLY.. CREDIT AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974. This agreement is made between us Marks and Spencers Financial bla bla and the person named below.....

There is only one page of the application form and a separate 4 page document of terms and conditions.

By the way the FOS has emailed me to get in touch with them:tinysmile_aha_t:

Even though I believe the "agreement" is unenforceable I have still used the card so morally shouldn't I pay something?

Thanks Sarah

[Curlyben]

Re: CCA Marks and Spencers Money



Pure and simple.

While there is the Moral Vs Legal argument, the unenforceability can be used to good advantage to secure a great settlement figure.
After all which would you rather have, something or nowt ??

[Ruby]

Re: CCA Marks and Spencers Money

Hi Sarah, so there is no doubt about enforceability, I love Curlyben's response! What have FOS said to you? After calming down from speaking to FOS myself I shall be taking on advice and writing back to M & S.

[maruvian]

Re: CCA Marks and Spencers Money

What you have been sent is mearly an application form. It would be a good idea to send a SAR as credit cards tend to have an application form and a credit agreement. What you have fulfils the Section 77/8 request, however there coud still be a credit agreement for this account. The only way that you will ascertain this is by SAR, don't just rely what they have sent you.

[Ruby]

Re: CCA Marks and Spencers Money

Since the paperwork they sent to FOS is the same as what I have at home, I think it is safe to assume there is no other paperwork involved - One application form and one leaflet stating terms and conditions.

[SarahG]

Re: CCA Marks and Spencers Money

Hi everyone, I have tried to contact the FOS but the person who I needed to speak to was not there.

I have already sent a Subject Access Request for the agreement also but they claim that the one sheet is one and the same.

I have also contacted OFT re harassment.

As soon as I hear anything I will let you know. Re FOS, I am not holding my breath though; just going through the motions

Will keep you posted.
Sarah

[Mochamoo]

Re: CCA Marks and Spencers Money

Just to clear a few things up here.
1/ the FOS do NOT have any dealings with unenforceable agreements, so taking this to them is a waste of time.

Hi everyone, I have tried to contact the FOS but the person who I needed to speak to was not there.

I'm getting confused now(easily done lol), why are you contacting the FOS?

[SarahG]

Re: CCA Marks and Spencers Money

Hi Mochamoo

In post 6 I mentioned that I had contacted the FOS, I just did this as going through the motions as I had hit a brick wall with M&S and this seemed to be the next step in the long winding process. The FOS contacted me and asked me to give them a call. That was why I contacted them. As I said I don't hold any hope.

Thanks Sarah

[SarahG]

Re: CCA Marks and Spencers Money

Hi All, response from the FOS pretty much as expected, you have spent the money you should pay it back. They said that it would have to be court route to prove enforceability.

So will M&S get back in touch and say pay up? Should I now pay £1 per month so that if it does go to court it shows I am willing or is that not a good idea, what can I expect now?

Do I say take me to court and see what happens?

Advice please.

Thanks Sarah

[Amethyst]

Re: CCA Marks and Spencers Money

Hi Sarah

Thats much as expected from the FOS.

Now you have to decide what route you want to take.

Do you want to use the unenforceable agreement to negotiate a low settlement figure to ditch the account once and for all, keep paying it at the low monthly figure - although this way it gets bandied about various DCA's and who knows what rubbish and threats they will come up with - until they try taking it to court and then defend on the unenforcable CCA (unless they come up with a true CCA further down the line), or try taking it into court for a declaration of unenforceability to ensure it is closed down once and for all.

Personally I think the first option is easiest if you possibly can. Otherwise yes you would be looking at employing a decent solicitor to take the declaration action and get the account wiped. Also remember this way, depending who you use, you could find yourself having to find up to 30% of the wiped debt to pay the company (money which you could use as a negotiated settlement figure?)

Remember that at the moment M&S can still attach non payments and defaults on the account to your credit file as per the McCuffick Judgement.

Just some thoughts anyway, I'm by no means a CCA expert.

Ame
xx

[SarahG]

Re: CCA Marks and Spencers Money

Hi Amethyst thanks for responding.

I would prefer to get rid of the account once and for all if possible. How much should I offer - I have heard of 10% is this feasible?

If I negotiate a lower settlement figure by negotiating am I admitting the debt if they decide to take me to court and will this go agains me also should I put 'without prejudice' on the letter?

Thanks Sarah

[Amethyst]

Re: CCA Marks and Spencers Money

Okay if you want to try a negotiation (how much is the account btw? ) then a good start is 10% indeed and have a top limit in mind (say 30%) which if they won't go below you will take it to court to sort out. I think negotiated settlement is best in these kind of cases as it finalises clearance of the account, doesnt cock up your credit rating quite so much, is quicker, and simpler. No means guaranteed they'll accept but if you can get them to admit they have no enforceable agreement or even if they don't if they KNOW you know its unenforceable and they can't take it to court then they might just take it lest risk getting nothing back on it, so worth a try.

If you look in the guides theres some hardship reduced settlement letters for an idea, I think combine that with a this is unenforceable letter from Curlys CCA guide then we'll have a decent start to an offer letter.

If they refuse to play ball on it then you need a back up plan, and basically the message will be 'accept my offer or i'll have to go to court to get it declared unenforceable' Of course your offer is a 'gesture of goodwill in the interests of bringing the matter to a timely and mutually agreeable conclusion.'

This is just how I'd handle it though at least to begin with, because of the risks of going to court, solicitors fees, and current delays most definately wouldnt see this sorted out before Christmas.

[Londoneye]

Re: CCA Marks and Spencers Money

Hi, from a law firm dealing with many CCA cases:
A cautionary note, I have read this thread and looked at the CCA which I find Illegible, if the agreement refers to "terms & conditions overleaf" then these t's & c's can be considered to be "embodied" in the document, should this be the case and the t's & c's contain the prescribed terms, the agreement could be enforceable. As M&S appear to have not supplied the t's & c's at his stage, you are in a strong position. Just be aware please.