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Re: maharg v m&S
Hi M
They have not closed the account as yet just asked to to call them to arrange payment in full 22/07/2010 and then without me calling them they sent a letter on 09/08/2010 confirming a new arrangement to pay.
P finall revision of letter with your improvement
Thanks
CONSUMER CLAIMS TEAM
MARKS AND SPENCER MONEY
KINGS MEADOW
CHESTER
CH99 9FB
xxxxxxx
ACCOUNT IN DISPUTE
ACCOUNT NO
Thank you for your letter of 19/08/2010 which I have read with interest.
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."
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.
This is a clear breach of s61(1) of CCA
* 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] EWCA Civ 633, [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 defence 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 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.
"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, and again I refer you to Wilson v First County Trust Ltd [2001] EWCA Civ 633, in which Sir Andrew Morritt Chancellor of the High Court and senior judge of the Chancery Division 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;"
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 Money's' claim that it was merely sending a replacement card. The OFT decided that the product was significantly different because the &MORE Credit Card could be used to buy products in other shops while the old style card could only be used in M&S stores. As a result M&S had to change the launch so that customers wishing to upgrade to the &MORE Credit 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
in fact the OFT specifically state
・ No communications or requests for payment should in any way threaten court action or other enforcement of the debt where the creditor or owner is aware that it cannot or will not be entitled so to enforce the agreement.
・ The creditor or owner should make it clear in communications to the debtor that the debt is in fact unenforceable. Failure to do so, where the creditor or owner is aware of unenforceability, would in our view unfairly mislead the debtor by omission.
Before I received your letter of xxxxxx it was my intention to enter a serious dialogue with yourselves 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 letter.
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 above Account No you remain in default of my s78 Consumer Credit Act request.
Yours
Hi M
Originally posted by middenmess
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P finall revision of letter with your improvement
Thanks
CONSUMER CLAIMS TEAM
MARKS AND SPENCER MONEY
KINGS MEADOW
CHESTER
CH99 9FB
xxxxxxx
ACCOUNT IN DISPUTE
ACCOUNT NO
Thank you for your letter of 19/08/2010 which I have read with interest.
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."
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.
This is a clear breach of s61(1) of CCA
* 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] EWCA Civ 633, [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 defence 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 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.
"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, and again I refer you to Wilson v First County Trust Ltd [2001] EWCA Civ 633, in which Sir Andrew Morritt Chancellor of the High Court and senior judge of the Chancery Division 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;"
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 Money's' claim that it was merely sending a replacement card. The OFT decided that the product was significantly different because the &MORE Credit Card could be used to buy products in other shops while the old style card could only be used in M&S stores. As a result M&S had to change the launch so that customers wishing to upgrade to the &MORE Credit 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
in fact the OFT specifically state
・ No communications or requests for payment should in any way threaten court action or other enforcement of the debt where the creditor or owner is aware that it cannot or will not be entitled so to enforce the agreement.
・ The creditor or owner should make it clear in communications to the debtor that the debt is in fact unenforceable. Failure to do so, where the creditor or owner is aware of unenforceability, would in our view unfairly mislead the debtor by omission.
Before I received your letter of xxxxxx it was my intention to enter a serious dialogue with yourselves 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 letter.
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 above Account No you remain in default of my s78 Consumer Credit Act request.
Yours
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