maharg v m&S

[mahargrisch]

Originally applied for M&S chargecard 1986.
Applied for CCA and recieved the following application form together with a letter stating that this is the original application form.
I was also sent T&C on separate sheet of paper dated 1986 plus conditions that refer to 2008.
These are the documents I have uploaded.
Also sent was 7 page doc entitled M&S CREDIT CARD IMPORTANT INFORMATION detailing current T&Cs.
As this will be the first CCA I have questioned I would appreciate any guidance.
Regards
Also sent M&S a SAR they have replied requesting a signature.

mahargrisch

[pandora]

Re: maharg v m&S

In the middle of an M&S stuggle mysef ... being going on well over 12 mths

I had a chargecard in 1990 - converted to a credit card about 2003 - which arrived with a card carrier ... !!

What they have sent you is an application form, which they will say they are relying upon as a regulated agreement, as it contains reference to the CCA74 in it. But it isn't its an application form ..

Anyway, from what I can tell, it has no prescribed terms in it - so its unenforceable ... rather than go into the whys here ... your best start would be to read Curlybens sticky ... http://www.legalbeagles.info/forums/...ad.php?t=13980

Its an excellent sticky ... and explains whats needed for a correctly executed agreement, and also gives you template letters to get you started ...

I will warn you, now m&S will come back and say under s61(b) of the CCA74 the terms can be embodied in another document (they mean the t&cs - which they can't) ... but we will deal with that when they do ... just come back on when you get a reply from them, and I will help you as much as I can .. as I say I'm over 12 mths down the line with them ... so I know what rubbish they will come out with to try and convince you that what they have sent is enforceable ... which it isn't full stop ... !!!

If like me, you have your chargecard replaced by a credit card, you may want to include in your letter a question why they have sent you a copy of your chargecard application, when you have requested a copy of your credit card agreement - they have told me (after a year of asking), that the revised t&cs they sent with the new credit card, meant a new CCA wasn;t req'd ... see what I mean .. haven't a clue !!

Anyway .. go and read Curly's sticky for starters ..... send the "in dispute" letter and see what they come back with ....

P

[mahargrisch]

Re: maharg v m&S

I wish to reply to M&S in connection with thier demand for a signature in order to process my SAR. This is the letter I have prepared.Is it worth sending.If not should I sign a request using an anti-tamper signature.


I refer to my previous correspondence specifically on XXXXXXXX my request for information under
section 77/78 of the Consumer Credit Act 1974 and on XXXXXXXX (received by you on 000000) my request for information under the Data Protection Act 1998 and your subsequent replies.


I have received from you a letter dated XXXXXXXXclaiming that you require a signature of authority before you can provide information under the Data Protection Act.There is no requirement under this act that requires a signature of authority.


According to the Information Commisioners Legal Guidance the act requires that under section;
4.1 Right of Subject Access
A data controller must comply with a subject access request promptly, in other words

as quickly as he can, and in any event within forty days of receipt of the request or, if
later, within forty days of receipt of –
(a) the information required to satisfy himself as to the identity of the person
making the request to enable him to locate the information which that person
seeks; and

(b) the fee.


The legal guidance also refers to
4.1.3 How does the data controller satisfy himself as to the identity of the person

making the request?
If accidental disclosure of the information held by the data controller to an individual
other than the data subject would not be likely to cause damage or distress to the data
subject, the data controller may rely upon the usual signature of the individual as proof
of identity and the information may be sent to an address known to the data controller

as being the address of the person making the request.


An amendment to section 7 of the Act has been brought in by paragraph 1 of Schedule

6 to the FoIA which provides that where a data controller:-
(a) reasonably requires further information in order to satisfy himself as to the
identity of the person making a subject access request and to locate the
information which that person seeks; and
(b) has informed him of that requirement,
(c) the data controller is not obliged to comply with the request unless he is

supplied with that further information.


I would respectfully remind you that on the XXXXXXXX you replied to my CCA request by sending me a copy of a chargecard application form,.You personally signed a statement of transactions for a credit card together with a letter detailing your intention to start recovery action.


As you are aware, disclosing data without adequate checks of identity is contrary to the 7th principal of Data Protection, listed in schedule 1 of the Data protection Act 1998:
7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
Clearly then if you are complying with your obligations under this act you must be satisfied as to my identity therefore I cannot see that you;
“ reasonably require further information in order to satisfy yourself as to my identity “


I would also point out that M&S money have sent statements,correspondence and sensitive personal information for many years to the above address.I remind you therefore that my original application for a Subject Access Request was received by you on XXXXXXXX and that you have 40 days from this date to reply with the information requested.
For the sake of clarity I have attached a copy of my original Subject Access Request in which I clearly state that I require any information you hold relating to all accounts and in particular to the M&S CREDITCARD No XXXXXX XXXXXX.This must include but it is not limited to a photocopy of the original Consumer Credit Agreement together with statements and transaction lists.


Yours faithfully

[mahargrisch]

Re: maharg v m&S

I received this reply to my in dispute letter from m&s.
My letter states unenforceable CCA and that it relates to chargecard not credit card.
The pdf is the letter which i cannot make head nor tail of.
The agreement they allude to in the letter is the application form i have posted at the beginning of this thread.
The thumbnail of the reconstituted terms and conditions has a postmarked letter presumably to confirm that these were the t&cs at the time the alledged cca was signed.
This has been doctored,unfortunately it states 4 FEB 1966.Does this mean that I received my chargecard when I was 7 cos Ive still got the first pair of pants I bought AND THEY FIT.

[pandora]

Re: maharg v m&S

Ms Hughes is busy she's responding to both my complaints. With the same letter ... so don't worry you're not getting special treatment .. they are just templates one size fits all ...!!!

Firstly, the CCa they have provided is illegible and for a chargecard not a credit card - even so there are no prescribed terms in it (from what can be read)

Secondly whilst reconstructed agreements are ok for basic satisfaction of s78 requests (and they will quote Carey and ors v Hsbc in support of this), these docs will not stand up in court.

Thirdly the reconstructed agreement merely confirms that no prescribed terms were or are located in the original.

Fourthly, the CCA does not say that prescribed terms can be embodied in any other document than the executed agreement itself.

They have inferred that the reverse of the app had the t&cs on it ... put them to strict proof.

But to be honest, if you don't understand the letter they have sent, and lets face it its disjointed because its just a load of template paragraphs ... write back to them thanking them for their reply, and simply stating that the letter is not in plain english for the layman to understand, and that you wish them to explain in simple language and in basic terms for Consumer to understand and digest what they are trying to say ... that'll put the cat among the pigeons .. because she won't be able to !!! :tung:

[mahargrisch]

Re: maharg v m&S

Thanks P
I drafted this letter in reply.Any thoughts?

ACCOUNT IN DISPUTE
ACCOUNT NO




Thank you for your letter of xxxxxx which I have read with interest.


You refer quite correctly to the requirements of section 61(1)(b) of the Consumer Credit Act 1974.
However you have left out some pertinent facts.

As you are no doubt aware the documentation you have provided in no way complies with the consumer Credit Act 1974 (CCA) in so far as it is completely lacking any of the prescribed terms required for a credit agreement.
The prescribed terms specified in Sch 6 of Consumer Credit (Agreements) Regulations 1983 SI1553 are as follows:

* credit limit
* repayments
* rate of interest

There is no mention of any of these terms in the M&S Chargecard Application form and as such this document has no validity in law as a regulated credit agreement.

It is in fact a clear breach of s61(1) of CCA 1974

* 61.—(1) A regulated agreement is not properly executed unless
(a) a document in the prescribed form itself containing all the prescribed terms
and conforming to regulations under section 60(1) is signed in the prescribed
manner both by the debtor or hirer and by or on behalf of the creditor or owner,
and
(b) the document embodies all the terms of the agreement, other than implied terms,
and
(c) the document is, when presented or sent to the debtor or hirer for signature, in
such a state that all its terms are readily legible.

Futhermore this document is totally unenforceable in a court of law as laid out in CCA s127(3)

* 127.-(3) The court shall not make an enforcement order under section 65(1) if section
61(1)(a) (signing of agreements) was not complied with unless a document (whether
or not in the prescribed form and complying with regulations under section 60(1))
itself containing all the prescribed terms of the agreement was signed by the debtor or
hirer (whether or not in the prescribed manner).

This was also addressed in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:


* 33 In my judgment the objective of 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 s 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 mis-stated.

Also in the case of Wilson v First County Trust Ltd [2001] 3 All ER 229, Sir Andrew Morritt said:

* 26 The recognition that there is nothing in the 1974 Act which prevents an improperly executed regulated agreement from giving rise to contractual rights, nor which prevents the right to possess goods pawned as security passing on delivery of the goods, provides the answer, as it seems to us, to the principal argument advanced on behalf of the Secretary of State in support of his submission that there is nothing in s 127(3) of the 1974 Act which is incompatible with convention rights. It was said, in effect, in relation to art 1 of the First Protocol, that, where there was no document signed by the debtor--or where the document signed by the debtor did not contain all the prescribed terms of the agreement--neither the agreement, nor the delivery of the pawn, conferred any enforceable rights on the creditor. So, in the present case, the creditor had no relevant 'possessions' to the peaceful enjoyment of which it was entitled, or of which it was deprived by s 127(3) of the 1974 Act. In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid; so there is nothing to engage the rights guaranteed by art 1 of the First Protocol. Nor, on that analysis, does the creditor have any civil rights in respect of which it is entitled to a fair and public hearing by an independent and impartial tribunal. Article 6 of the convention is not in point.

So in a nut shell the lack of prescribed terms renders this agreement unenforceable and the moneys a gift that was never intended to be repaid.


With regard to your contention that the &MORE Credit Card is covered by the alleged agreement you have supplied,.it is patently obvious from my above points that this is unenforceable under the Consumer Credit Act 1974 and this is a complete defense at law.




However I would like to remind you that as the &MORE credit card is so different to the M&S storecard as not to fall under the protection of the Consumer Credit Act 1974 s 51 (3)(a) or(b)
s51(3) Subsection (1) does not apply to the giving of a credittoken to a person-
(a) for use under a credit-token agreement already made,
or
(b) in renewal or replacement of a credit-token previously accepted by him under a credit-token agreement which continues in force, whether or not varied.


The &MORE Credit Card could be used anywhere that displayed a Mastercard sign while the charge card was restricted to use in Marks and Spencer shops,Credit limits,interest rates and other terms and conditions differed for the two cards.




In fact the Consumer Credit Act 1974 is quite clear on this particular point
s51.-(l) It is an offence to give a person a credit-token if he of has not asked for it.
(2) To comply with subsection (1) a request must be contained in a document signed by the person making the request,unless the credit-token agreement is a small debtor-creditor supplier agreement.


Your assertion that the process M&S Money used to launch &Money Credit Cards was recommended by the OFT is misleading at best.
M&S Money were reprimanded by the OFT who brushed aside M&S' claim that it was merely sending a replacement card. The OFT decided that the product was significantly different because &more could be used to buy products in other shops while the old style card could only be used in M&S. As a result M&S had to change the launch so that customers wishing to upgrade to the &more card had to confirm that they wanted the card by contacting MSFS while customers who want to keep their store card needed to do nothing. The company also had to undertake to change the wording in its store card agreement that purported to give MSFS an unrestricted unilateral right to change the terms of the agreement.
The OFT has specifically stated that M&S Money does not have the right to change one type of card into another.
As you have brought up the OFT I would also like to remind you that guidance given by them goes on to advise that lenders would be acting unfairly, and potentially in breach of their consumer credit licenses, if they misled borrowers by:
• hiding or disguising the fact that there was never a proper signed agreement in the first place
Before I received your letter of xxxxxx it was my intention to enter a serious dialogue with yourslves in connection with this account.However your deliberate efforts to mislead and your contention that the documents you have sent are legally enforceable when this is patently untrue have made me look closer at my position.
Accordingly I suggest that you waste no more of your time and money arguing over legalities.I have researched my position , any letters you send in connection with Consumer Credit Act 1974 will be answered by referring you back to the contents of this letterIf it is your intention to regurtitate template answers to the points raised in my letters I respectfully request that you refer them to someone who has the authority to reply in an informed manner.
I remind you that until you rectify your obvious failure to furnish me with a true copy of a properly executed agreement relating to the aboveAccount No you remain in default of my s78 Consumer Credit Act request.
Up Yours

[pandora]

Re: maharg v m&S

Hi there,

Letter is v good, OFT regarding credit tokens spot on .. I put this in my letter .. me being me just a few things that when I read I may have put differently .... but its all subjective and the letter is good as it is ..

My thoughts were .....

In your opening I wouldn't give them any positives with ref to 61(b) ... they are using 61(b) to try and justify the fact that the pres terms absent from the agreement (app), but elsewhere i.e the t&cs .. they are trying to confuse you .. which I know they haven't ;-)

IMO .. I would take this out, and just say where you go on to discuss s61 of the act yourself, something like ..... tinker to your hearts content .. !!

"With respect to the prescribed terms being absent from the alleged agreement presented, you have made reference to s61(b) of the CCA74, which you seem to infer supports such an omission. Your suggestion is incorrect, for your information S61(b) relates to general terms and conditions only, it is 61(a) of the CCA74 that is pertinent with regards to the location of prescribed terms as required under S60(1) of the CCA74, which must be located within the pages forming the executed agreement itself.

Furthermore, if the executed agreement should embody more than one page, clear reference should be made of this, with each page designed to form part of the executed agreement clearly linked by page number and reference - of which it is clearly established that the alleged copy agreement provided in this matter makes no such reference or discussion, and is proven as consisting of a singular page only."


With regards to their desperate statement that historical use dentoes enforceabililty, I said this ..

"You have inferred that in the absence of an agreement meeting the terms of the Consumer Credit Act 1974, that its validity and enforceability, is somehow proven by virtue of any historical use.

This is a somewhat flawed argument, as cited by Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633, who said at para 26 of the judgement, that in the case of an unenforceable agreement:

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

Only ideas ... your letter as I say covers really well the relevant areas, and is v good - just thought I'd offer a bit more if you wanted to use it .. or not ...

(by the way I heard somewhere else... that HSBC who bought the credit card business from M&S have written off all the repalced cards because they are unenforceable .. whether its true or not only time with tell .... but not in one letter from them have they threatend court, just "we will continue or collection activities"

P

[mahargrisch]

Re: maharg v m&S

Hi P
really excellent advice.
I am using your suggestions to improve my letter.
m

[middenmess]

Re: maharg v m&S

Hi maharg

Did you receive a Default Notice from them?

[mahargrisch]

Re: maharg v m&S

Hi middenmess

Hi maharg

Did you receive a Default Notice from them?

I recieved a DN in July 2008 with arrears of £1090.00 but have been on a payment plan with no interest since Aug 2008.DN was issued because the amount agreed under the arrangement was less than the 1% of a/c balance they required

They wrote to me stating this plan had come to an end in July 2010 and asked for the full amount O/S and stating that if I didnt pay or call them they would County Court or use a DCA who might call at my house.

As this was not possible I started to look into my situation.I sent cca request in at the end of July 2010 and they sent me a letter in Aug 2010 confirming my new arrangement (exactly the same as the last) which starts in sept 09.

I had not contacted them about paying the full amount or to arrange a plan.
My arrangement between Aug 08 and July 10 was up to date and during that time I paid £1450.00.

[pandora]

Re: maharg v m&S

No problem .. glad to have been of help...

On the subject of DNs ... I have already recd a DN last year .. asked for the arrears, but was defective as insuffcient time for remedy and the layout was not compliant.

They then sent a formal demand for the lot.

I have not paid anything since going into dispute ....

I haven't mentioned the defective DN .... thats my rainy day trump card !!! Why alert them to the fact, when I already have a v dodgy CCA .. shall only reveal this as part of my defence IF they take the court route ... this and the cr*p they have supplied and spouted, together with the dodgy DN shoud well and truly see them off and they should if they have any sense, discontinue proceedings ... until then .... ssshhh !!!!!

Let me know how you get on once they respond to your letter ...

P

[middenmess]

Re: maharg v m&S

The letter you posted from M & S asks for the full amount owing.

If they didn't serve you with a compliant D/N under CCA sect.87 before so doing giving you 14 days to rectify the breach then they would appear to have unlawfully repudiated the contract which if correct would mean that they could only then claim the arrears due at that time.

Putting you on a payment plan could be seen as rectifying the breach on the original default notice in my opinion--others might see it differently.

[mahargrisch]

Re: maharg v m&S

First time I have looked into the DN.
just a quick look through the regulations and

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

the DN(same date as letter advising of its imminent arrival) states that the breach must be remedied within 14 days of the date of this notice.
So does this mean what I think it means?

[middenmess]

Re: maharg v m&S

So does this mean what I think it means?

In my opinion that D/N does not comply with requirements as it does not state a specific date that the breach has to be rectified by and does not allow for service which is 2 working days for 1st class and 4 days for second class mail.

I am still of the opinion that another D/N should have been served before they closed the account as per their letter of this August.

Best to PM member diddydicky as he is the knowledgeable one on default notices and accepting the repudiation.

[pandora]

Re: maharg v m&S

Hi there,

I only thought the DN asked for the arrears ... with a letter asking for the whole amount later on... or was this a 2nd DN? My own DN only asked for the arrears - although they did send me 2 - which were both wrong anyway ... !! ;-)

As far as I know (and I'm no expert !), a lawful DN can only lawfully request the true arrears (i.e no penalty charges etc included in the figure). Which must be clearly noted and not open to interpretation.

There has to be at least a clear 14 days period post date of service (delivery to me and you) - which is 2 days if sent 1st class and I think 4 days if sent 2nd (sure I'll be corrected if thats not accurate), to allow the debtor to remedy the default, and place the account back in the position as if the breach had never occured (i.e as if you had never missed any payments). A date should be technically be noted, to again save confusion or interpretation - but some don't ... as long as its more than 14 days allowed a Judge will allow in most cases.

The whole amount outstanding can lawfully be demanded in the DN, but only if that sum is equal to the arrears outstanding at the time of issue (i.e if you were right at the end of your agreement term and you missed the last few payments or so).

If the DN demands the whole amount as remedy, and this is not the case (i.e the arrears only for a few months and you've got a bit to go on the term), then that's unlawful repudiation, as this means that the DN they have issued is not allowing you to put things as they were (i.e pay the arrears and act as if nothings happened), and then continue with monthly repayments as per the terms of your original agreement.

In this case, you have instead been demanded to pay everything outstanding for the remaining period of the agreement, which in essence means redemption of the loan in one go - which in reality results in the termination/end of the agreement as if you paid the total amount outstanding (as demanded in the DN), then you subsequently wouldn't owe anything anymore. (if that makes sense !) ..... which is unlawful repudiation and also their immediate termination of the agreement under the regs governing the issue of DNs.

(If you want to take a peek, the regs are found in :- The Consumer Credit Act 197 s87(1) and The Consumer Credit (Enforcement, Default and Terminatino Notices) Regulations 1983 (as amended in 2006) [FONT='Times New Roman','serif'] [/FONT]

If the DN is defective, it means that the OC or new owner, is only lawfullly entitled to receive the genuine arrears due at the time the DN was issued - which you can counter sue against - which hopefully will wipe it out or leave you with very little your liable for.

Before mentioning or accepting any unlawful repudiation, its (IMHO) most wise to wait for a formal letter of termination (if the DN didn't unlawfully demand the whole amount outstanding), as they can issue a new DN to rectify their errors. (which I know is wrong but they can and do).

Better to wait until you've had a formal demand for the lot (which I think you already have), or a DCA rears its head and asks for the same, or its sold .. although they haven't come out with it .. this all signifies their termination of the agreement - whereby you could if you wanted to, throw in to a letter your acceptace of their unlawful repudiation of the agreement.

Although I too have had a formal letter of demand, and we've been round the DCAs, I haven't formally accepted their unlawful repudiation, and remain waiting for a formal letter of termination, as I don't want to give them any heads up on it (although its clear that they have terminated it by subsequently asking for the lot anyway) ...

There's debate on whether its depremental to your case if you don't formally accept the unlawful repudation of the account at the time it happens. I have only sent my acceptance letter to OCs where I have had a formal letter of termination from them .. i.e we have terminated your account kind of thing .... where its absolutely clear of termination ... if I haven't recd this letter (and I've a poor CCA) I have let the DN sleep until needed.

I don't think that as a considered layman by the courts it would be too depremental to your defence if you haven't formally accepted unlawful repudiation at the time (pleased to be corrected if not good advice !) , as (if in my case should it get to court) I will say that its only when I recd legal advice that it was pointed out to me of their unlawful repudation of the agreement - which is why I hadn't formally accepted it the time .... but now I'm aware of their legal obligations and breaches .... I do accept ...

You could maybe use this tack in your own situation whereby you have been paying payments post DN ... just a suggestion, not a recommendation, you'll get lots of advice should it come down to it ...

As I say I haven't mentioned the dodgy DN to them yet .... I already have a CCA which is total pants ... and the iffy DN would just be the belt and braces really in any court defence ....

I have for the past 12 mths or so, concentrated on the poor CCA and rubbish they have sent to me, which is keeping them at bay ...

There may be difrering opinions to my post, which is always good and healthy, I've just noted down some of the things I've found out and my own interpretation of DNs, which I have used in my own fights ...

Maybe helpful ... or not ... !!

P