maharg v m&S

[mystery1]

Re: maharg v m&S

I sent my application special and paid over the phone (latest time to pay by pone 15:15). To be honest any post should be ok but i expect to win and they should pay costs. I think you can also email but when reading the rules i saw something which said no but others have done so without issue.

It may also be an idea to give them one last warning by phone that their letter is wrong, to be polite, just so a judge will see you as the reasonable party. Remember to email the jist of the conversation to them and reference this in your witness statement

M1

[mahargrisch]

Re: maharg v m&S

Had time to think this over.

My original CPR 31.14 letter asked for documents referred to in the POCs.
I called these

1. The agreement
2. The assignment

The particulars of claim use the words " a contract between the defendant and M&S Financial services on or about xx/xx/86 and assigned to the claimant on xx/xx/2013"

The letter in reply to CPR 31.14 States that the words AGREEMENT AND ASSIGNMENT are not specifically mentioned.
Although the letter does not go on to categorically refuse to send copies of any documents it doesn't state that it will send them either.





So will my original CPR 31.14 letter asking for copies of the agreement and assignment be acceptable for the application or should I send another using the word CONTRACT.

[mystery1]

Re: maharg v m&S

Well contract or agreement will suffice. If they are not referring to a credit agreement then what are they referring to ? If it's not a credit agreement then their pocs fail miserably to comply with cpr 16 and pd 16 so you should ask the cheeky feckers to replead and see if that makes them think a little.

M1

[mahargrisch]

Re: maharg v m&S

I redrafted a CPR 31.14 request to include the word "contract" and also stated that although the word assignment is not specifically mentioned,they have referred to the contract being "assigned".I stated that as this action can only take place with a Notice of Assignment according to the LOP 1925,for them to refer to it the POCs they must have a copy of it.

I also stated that I believed they were acting unfairly and causing unnecessary delay by not providing me with the documents I requested.

I referred them to the paragraph in my 31.14 about complying with my request and allowing a further extension until they do.

I reminded them that they agreed to request documents from their clients during our telephone conversation.

This was sent recorded delivery last week.

The reply received today 7 days from receipt of my letter is attached .

Still not complying with my CPR 31.14 request.

No documents,no indication of time that they will be sent and no further extension to give them time to comply.

They have queried why I am requesting the documents and asking if it is my position that I am denying owing money under a credit card facility and if so on what basis.

They are still referring to a CREDIT CARD issued in 1986.
They have stated in the POCs that the particulars of the a/c was the &MORE CREDIT CARD NUMBER .

Do I reply to this letter showing that I am reasonable and helpful reminding them that they have not complied with my request to extend whilst they are waiting for their client.

Also is it a wise move to point out that the reason I am requesting the "contract" for the credit card is because I know it does not exist and that what is in existence is an application for a charge card that is lacking in the prescribed terms making it unenforceable as an agreement under the CCA 1974.

That the original account Number they refer to is not for the charge card.

That the issue of the &more credit card breaches CCA s51(1) , and is so different to the charge card that it does not fall under the protection of the CCA etc.



I still have 10 days to file a defence and they have run out of time to comply with my second CPR 31.14.

What is my best next step.

[ODC]

Re: maharg v m&S

What an arrogant letter from their solicitors. Just because their client is 'sophisticated' does not mean they cannot make mistakes either deliberately or otherwise. Its none of their business why yo have never asked for the CCA before now. It is your legal right to demand it and their legal obligation to supply it. Without it you can neither deny or admit owing money on a Credit card which you never even applied for .

[mahargrisch]

Re: maharg v m&S

My take on this is that they believed because I had not responded prior to commencement of litigation that I was unaware of the situation regarding storecard/credit card conversion and unenforceable agreements and that I would go meekly.
I think this letter is a fishing expedition to see what I know.
Why else ask about whether I deny owing money and on what basis.

Why not just supply the CCA that could prove their case.

It seems that they and their clients are sophisticated enough to try and avoid letting me see it.

[mahargrisch]

Re: maharg v m&S

What an arrogant letter from their solicitors. Just because their client is 'sophisticated' does not mean they cannot make mistakes either deliberately or otherwise. Its none of their business why yo have never asked for the CCA before now. It is your legal right to demand it and their legal obligation to supply it. Without it you can neither deny or admit owing money on a Credit card which you never even applied for .

This is the letter I have drafted in reply.
I have had many years of the M&S MERRY GO ROUND and do not want it to carry on with anyone else.



But I think that if I send this letter it might stand me in good stead with an application.


Xxxxxxxxxx
xxxxxxxxxx
xxxxxxxxxx
xxxxxxxxxx
xxxxxxxxxx
xxxxxxxxxxx


17/02/2014




Dear xxxxxxxxxx


Re: Arrow Global Limited vxxxxxxxxxxxxxxxxxxxxxxxxxxxx




Thank you for your letter datedxx/02/2014.




I respectfully refer you to the fourth from last paragraph of my CPR 31.14 Request dated xx/02/2014 asking that if you require more time to comply with the provision of the documents I have requested that you inform me in writing with an extension of the time to file my defense 14 days from the date you expect to comply.


I would also respectfully point out that I do not need to explain my reasons for requesting a copy of the Credit Agreement. Suffice it to say that it it is my legal right to do so and your legal obligation to supply it.


In an attempt to save court time and expense however I am prepared to inform you of the reasons why I require sight of these documents.


You have claimed in your POCs and the“confirmation of assignment” letter that a contract for an M&SCREDIT CARD dated 30/xx/1986 with an original account numberxxxxxxxxxxxxxxxx was assigned to your clients.


There is no agreement or contract in existence for an M&S CREDIT CARD.


The original account number for a 1986 MARKS & SPENCER CHARGECARD application is not the same account number you have quoted.


The date you have quoted is not the date on the MARKS & SPENCER CHARGECARD application.




The documents you refer to in your POCs and confirmation letter and the actual documents are so different as to lead me to believe that you have in your possession an agreement and assignment I have never seen.


Without them I can neither deny or admit owing money on a Credit card.




There is an application form for theMARKS & SPENCER CHARGECARD dated 15xx/1986 which purports to be an agreement under the CCA 1974,however this lacks the prescribed terms.

• credit limit
• repayments
• rate of interest

There is no mention of any of these terms in the M&SChargecard Application form and as such is a clear breach of s61(1) of CCA and renders the contract unenforceable. This document has no validity in law as a regulated credit agreement.


I respectfully point out that the provisions of s127 (3-5) were repealed by the Consumer Credit Act2006 but for agreements entered into before 6th April 2007 the provisions of s127(3 to 5) still have effect.


You refer to your letter that your claim is for monies owed under a credit card facility issued by Marks and Spencer Financial ServicesLtd.in 1986.


In fact Marks and Spencer supplied an unsolicited credit card in November 2003 without an agreement or contract.Prior to this date to my knowledge MSFS did not issue credit cards.


I have correspondence from MSFS stating that they did not have to issue a new agreement or contract as the original chargecard agreement or contract was sufficient even though the original contract was clearly unenforceable..


I would like to point out that the &MORE CREDIT CARD is so different to the MARKS & SPENCER CHARGECARD as not to fall under the protection of the Consumer Credit Act 1974
s51 (3)(a) or(b)
s51(3)Subsection (1) does not apply to the giving of a credit token 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 byhim under a credit-token agreement which continues in force, whether or not varied.


The OFT have advised MSFS that the &MORE Credit Card is so different to the M&S Storecard in that it 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.


Infact 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.
S51.-(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.
M&SMoney 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 and forced MSFS to change the launch of the &More Credit Card. 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.




To conclude with the above in mind if you are not prepared to either comply with my CPR 31.14 request xx/02/14 ,namely supplying the documents I have requested ,provide the date you expect to comply and the subsequent extension of time to file my defense or withdraw your claim with an undertaking that it will not be sold or refiled I have no choice but to seek an application to the court to have the proceedings struck out or stayed for non compliance and a summary costs order.




As the time to comply with my CPR 31.14 of xx/02/2014 has expired I expect to receive a reply by return . To enable you to comply I have provided an email address. Falure to respond will leave me no choice but to seek the application without further notice.




I look forward to your prompt reply.






Yours sincerely
xxxxxxxxxxx

[mystery1]

Re: maharg v m&S

To conclude with the above in mind if you are not prepared to either comply with my CPR 31.14 request xx/02/14 ,namely supplying the documents I have requested ,provide the date you expect to comply and the subsequent extension of time to file my defense or withdraw your claim with an undertaking that it will not be sold or refiled I have no choice but to seek an application to the court to make you comply with cpr or have the proceedings struck out for non compliance and a summary costs order.




M1

[FlamingParrot]

Re: maharg v m&S

What an arrogant letter from their solicitors. Just because their client is 'sophisticated' does not mean they cannot make mistakes either deliberately or otherwise. Its none of their business why yo have never asked for the CCA before now. It is your legal right to demand it and their legal obligation to supply it. Without it you can neither deny or admit owing money on a Credit card which you never even applied for .

Cheeky sods!

As far as I know, Diana Mayhew never asked for a copy of the CCA before proceedings were issued, like most consumers, she was unaware of the technicalities of the CCA and just made a monthly offer to Santander:

Di was unaware of the legal implications of the errors made by Santander, so to suggest that she used the CCA 1974 to avoid a debt is wide of the mark. If i was paying my debt and the creditor agreed to accept my payments then sued me, id darn well use whatever legislation to protect me too.

That didn't stop her from winning her case! :grin:

My take on this is that they believed because I had not responded prior to commencement of litigation that I was unaware of the situation regarding storecard/credit card conversion and unenforceable agreements and that I would go meekly.

They should know better!

I think this letter is a fishing expedition to see what I know.
Why else ask about whether I deny owing money and on what basis.

Why not just supply the CCA that could prove their case.

It seems that they and their clients are sophisticated enough to try and avoid letting me see it.

Because, as we all know, it does not exist!

Id also point out that the leading commentators in Professor Sir Roy Goode QCs publication Goode Consumer Credit Law and Practice appeared to support out own analysis of the matter on the upgrade, infact we took the Judge to the Goode publication along with the OFTs intervention documents. So it wasnt just some Debtor thinking up technical arguments to avoid a debt!!

If i havent made my point here already then i simply need to refer to two very useful judgments which set out clearly the message to these lenders

The first is the Judgment of LJ Sedly in Wilson v Howard Pawn Brokers

The moral for a pawnbroker such as Mr Howard is that if he wants the rewards of his trade he must operate strictly by the book, and that the result of failing to do so may be not merely to unravel agreements, but to reverse the indebtedness that they have purportedly created.

and secondly from the landmark ruling of Wilson v Secretary of State ( often called Wilson v First County Trust)
Lord Nicholls said:

“72. Undoubtedly, as illustrated by the facts of the present case, s 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in cases of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

73. The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach. Infringement of statutory requirements rendered the loan and any security unenforceable. So did the Hire-Purchase Act 1965, although to a lesser extent. This approach was roundly condemned in the Crowther report …
‘It offends every notion of justice or fairness that because of some technical slip which in no way prejudices him, a borrower, having received a substantial sum of money, should be entitled to retain or spend it without any obligation to repay a single penny.’.

[Mr $quandaŁot]

Re: maharg v m&S

Let them be silly and go to court (unlikely when they become aware of the Santander vs Mayhew case) and they will lose if our very own Paul takes your case!

[ODC]

Re: maharg v m&S

Surely one phone call from Paul or Celestine would be enough to ruin their day

[Mr $quandaŁot]

Re: maharg v m&S

Any news on this one?

[ashlea]

Re: maharg v m&S

Guys I am new to this forum but could do with a little help with M&S &More card ppi. Original Chargecard purchased 1986 with ppi, suffered injury 1995 made sucsessful claim. Am disabled and have not worked due to injury, employment medically terminated 1997. 2003 unsolicited &More credit card upgrade, cover stated replacement cards, charge cards cancelled, balance automatically transferred to &More account. Rang to complain, told upgrade mandatory, keeping charge card not an option, outstanding balance already transferred & ppi set up, queried ppi due to being unemployed due to disability told pop set up as I had it on old card. Defence to ppi claim in no pre existing injury and that ppi falls outside of OFT ruling so is upgrade of a desperate insurance product and not new policy,

Any advice appreciated.

[FlamingParrot]

Re: maharg v m&S

Guys I am new to this forum but could do with a little help with M&S &More card ppi. Original Chargecard purchased 1986 with ppi, suffered injury 1995 made sucsessful claim. Am disabled and have not worked due to injury, employment medically terminated 1997. 2003 unsolicited &More credit card upgrade, cover stated replacement cards, charge cards cancelled, balance automatically transferred to &More account. Rang to complain, told upgrade mandatory, keeping charge card not an option, outstanding balance already transferred & ppi set up, queried ppi due to being unemployed due to disability told pop set up as I had it on old card. Defence to ppi claim in no pre existing injury and that ppi falls outside of OFT ruling so is upgrade of a desperate insurance product and not new policy,

Any advice appreciated.

It may be best to start a new thread in the PPI section of the forum so it doesn't get missed: http://www.legalbeagles.info/forums/...nce-Reclaiming

Welcome to LB

[ashlea]

Re: maharg v m&S

Did as you suggested so far

1 don't know

1 advert

Advert critic

And 1 wannabe comedian

Any realistic help would be appreciated