maharg v m&S

[middenmess]

Re: maharg v m&S

Interesting post by pt on this thread....


Is it safe to contest the CCA? - Legal Beagles Consumer Forum

[mahargrisch]

Re: maharg v m&S

Hi P sent my reply to M&S regarding non -compliantCCA for chargecard and non-existant CCA for credit card.Your help much appreciated.

Hi mid I agree with you that after seving a DN demanding payment in full amounts to termination.Thanks for pointing me in this direction


I set up a standing order for the payment plan for the previous 12 months and this is still in place and payments still being made.
As I mentioned earlier M&S unilaterally renewed this reduced payment plan in August.But I am concerned that continuing to make payments means that I don't accept the non-existent CC agreement has been broken.


Whilst I still make payments they are just going to keep insisting the CCA is enforceable and that they can change a storecard into a credit card.In order to force the issue I think I don't have any choice but to cease paying.

[middenmess]

Re: maharg v m&S

[quote=Angry Cat;169558][quote]: by mahargrisch:
and as in my case the account is not terminated the oc has just sent a letter stating the o/s balance and asked me to contact them to discuss repayment.If there was a fault with the DN they are allowed to just serve another one.

If, the agreement has not been terminated, then yes, the OC can rectify their mistake/fault by re-serving another default notice.

M&S have already written requesting the full outstanding balance which must be taken as termination IMO.

[Angry Cat]

Re: maharg v m&S

[Quote]: by mahargrisch:
and as in my case the account is not terminated the oc has just sent a letter stating the o/s balance and asked me to contact them to discuss repayment.If there was a fault with the DN they are allowed to just serve another one.[Quote]

If, the agreement has not been terminated, then yes, the OC can rectify their mistake/fault by re-serving another default notice.

[pandora]

Re: maharg v m&S

Hi ... just popped into see how you were getting on .....

Sure Diddy will be along soon on the DN - don;t forget your main thrust is the fact that the CCA is poop !! (any dodgy DN is just the cherry on the cake - its the CCA that needs to be right in the first place .. and it isn't ... :tinysmile_grin_t: )

P

[mahargrisch]

Re: maharg v m&S

Did you manage to get a reply from Diddydicky?

Hi m
I have pm diddydicky asking him to look at this but as yet I have had no joy

[middenmess]

Re: maharg v m&S

Brandon v Amex has put paid to the 14 days or lack of as far as faulty DNs go.
Unless a creditor acts within the 14 days or the debtor settles the breach within 14 days plus the few days the creditor didn't allow for whilst the DN was in the post the Judge has ruled that just the amount of days notice is irelevant.

As I'm sure others on LB will agree this Judge cannot overrule an Act of Parliament.

He can interpret the law as he sees fit but if he misdirects himself on a point of law then an appeal on that point must succeed.

Did you manage to get a reply from Diddydicky?

[mahargrisch]

Re: maharg v m&S

posted by middenmess

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.

with the absence of any further help on DNs I have done a little research.
Brandon v Amex has put paid to the 14 days or lack of as far as faulty DNs go.
Unless a creditor acts within the 14 days or the debtor settles the breach within 14 days plus the few days the creditor didn't allow for whilst the DN was in the post the Judge has ruled that just the amount of days notice is irelevant.

The judgement just skips over the fact that no specific date was stated in the DN

34. Now, somewhat theoretical though it is, had American Express taken enforcement
action within 14days of 19June, it may well be that the validityof thatenforcement
action would have been open to challenge I express no final view on the mattcr but I
do understand the argumcnt because,to go back to section87,it must specify the
nature of the breach and if the breach is capable of remedy what action is required to
remedy it. The whole idea is thata debtor should have 14 days within which to
redeem the position,in this case pay £275.80. So I understand the argument.As I
say, I do not dismiss it as being unreal. But, the fact of the matter is no enforcement action
was taken within 14 daysof 19June. So we have the service of the enforcement notice
but nothing immediately happens. In those circumstances, even if Mr Brandon's point is a good one
it seems to me to be not relevant in that he has not
suffered any prejudice at all by virtue of that technical breachbecause, nevcr mind
within 14 days he did not, for example, within 21 days, which on my finding would clearly
have been an appropriate period of time properly to comply with seCtion 87.
He did not send American Express the cheque for £215. Nothing happened. So he remained
in breach of his obligation to pay a monthly instalment


and as in my case the account is not terminated the oc has just sent a letter stating the o/s balance and asked me to contact them to discuss repayment.If there was a fault with the DN they are allowed to just serve another one.

[mahargrisch]

Re: maharg v m&S

did i advise you on this in another place?
/

Hi diddydicky.
I have not posted this on any other place.In fact I didnt realise the significance of DNs until middenmess raised them in post #9.

I have another situation where default notice with arrears was raised,then received a DN for full amount and then received a NOA from a DCA. I have sent SAR and requested my credit report from CRA as although I was told verbally the debt was sold by OC I think I need more concrete proof of termination and would welcome your advice.

[ODC]

Re: maharg v m&S

Subscribing with interest. I still get a daily call from whichever DCA they have sold this crap on to. Needless to say I never answer them.

At the moment its Red Castle aka Gothia.

PS havent had a threatomatic from them in a long while

[diddydicky]

Re: maharg v m&S

did i advise you on this in another place?
/

[pandora]

Re: maharg v m&S

Hi there,

Had a read through pretty much ok .. make sure you're not making the same point more than once to keep the content down, punchy and easier on the reader.

Where you have ..."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."

IMHO not sure that coming straight out with the "moneys a gift that was never intended to be paid" may put in the best light of any Judge - as it comes across a bit blunt and like you're trying to wriggle out of paying (not for a minute suggesting you are !!) ... which may just make the Judge a bit arsey and try and make you.

Sometimes I think its best to be a bit more fluffy .. this is how I may have put it in my letter ..

To be clear, the absence of the prescribed terms as detailed and required by s60(1) of the CCA74 renders this agreement unenforceable in law - refer s127(3) as discussed earlier in this correspondence.

Furthermore, you appear to infer 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;"

So to correct your assertions a correctly executed agreement is proven as being required to satisfy both this dispute, and your compliance to the Consumer Credit Act 1974.

I'd probably just end the letter at this point, conclude with you will only communicate in writing, won't accept telephone calls or any invitation for any proposed home visit.

Hope suggestions are ok.. and they are just (my picky !!) suggestions ... the most important thing is to let them know that what they have sent is not acceptable, or enforceable, and the case law supporting it .. which you have ... !!


P :beagle:

[mahargrisch]

Re: maharg v m&S

Hi M

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.

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

[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

[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.