Hi, new here and looking for further advice (or just reassuarance that I am going in the right direction).
On the 16th May, I was served with Court Papers for an Ordinary Action in our local Sheriff Court (I live in Scotland) by McClure Naismith acting for M&S Financial Services.
The writ alleges that M&S have no reason to believe the agreement is broken, or that there are any other actions between the parties and that the court has jurisdiction. More interestingly it goes on to say that on or about 1st December 1984 I entered into a credit card agreement with them and that they will produce this. Two things here -
1. first of all it wasnt for a credit agreement but for their Chargecard (and therefore quite different t&cs I would guess) and
2. secondly it wasnt included in the bundle of papers they sent me on 29th April in reply to a CCA request.
The defence that I put in is
ANSWERS TO CONDESCENDENCE
1.The averments regarding the defender are admitted. The existence of jurisdiction is admitted. Quoad ultra not known and not admitted.
2.Denied, as
a.There is no signed agreement in existence for the Mastercard xxxxxxxxxxxxxxxxxxxxxx. The DEFENDER will present a letter from the PURSUERS confirming this.
d.The above notwithstanding, the transfer without request to a new agreement by Marks and Spencer FS is not enforceable as the Chargecard and Mastercard are so different as not to fall under the protection of the Consumer Credit Act 1974 Section 51 (3)(a) or (b). In particular the terms and conditions of the Chargecard and Mastercard differed in that
i.The agreement for the Mastercard is for a credit card, while the Storecard agreement was for a store card.
ii.Credit limits and interest rates for the two cards differed, as did other terms and conditions
iii.The Mastercard could be used in shops and businesses anywhere which displayed the Mastercard sign, while the Chargecard was restricted to use in Marks and Spencer shops.
3.Denied, as
a.No Default Notice has been served on the DEFENDER by the PURSUERS.
b.Given that the agreement is not enforceable in law, the PURSUER had no legal authority to require payment
4.Admitted but justified as there is no legal agreement between the parties, and the action has been brought before a Default Notice has been served, as required by law.
PLEAS IN LAW
1.The PURSUER’S averments are irrelevant et separatim lacking in specification, the action should be dismissed
2.The purported credit card agreement which the PURSUERS will present as evidence, does not conform in form or content to Section 60(1)(a) of the Consumer Credit Act 1974 and as such is unenforceable under Section 127(3) of the same Act. The Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported credit card agreement supplied by the Pursuer as unenforceable.
3.The PURSUERS on or about September 2003 from Chargecard to Mastercard was an offence under Section 51(1) of the Consumer Credit Act 1974, rendering any agreement between them and the DEFENDER unenforceable
4.The PURSUERS, by virtue of not having served a Default Notice, are not entitled under the Consumer Credit Act 1974 Section (87) to demand payment of the balance and the DEFENDER craves that the application be dismissed.
So basically my defence is that they dont have anything signed for the &more credit card. The agreement that they say they will produce I am suggesting will not match the requirements of the CCA (to be honest I dont know - I dont have it as I dont keep documents from 25 years ago, typically.However, on the basis of some questions I put on CAG, and got two replies, agreements signed 4-6 years after 1984 wont stand up, so it seems unlikely that an earlier one would).
Moreover, and to go back a wee bit, I CCAd them in March and finally got a reply on 29th April. It did NOT include any agreement - there isnt one for &more, which they admit in their letter of 29/4, but they dont produce the chargecard agreement either, though in the writ they say they will produce it in Court.
One thing that is troubling me is that as a result of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)
"9 Copies of old agreements and security instruments where the agreement or security instrument has been lost etc
Any copy of an executed agreement made before 19th May 1985 or of a security instrument relating to security provided before that date which is given to the debtor, hirer or surety under any provision of the Act on or after that date may comprise an easily legible statement of the current terms of the agreement or security as the case may be insofar as they are known to the creditor or owner where, due to an accident or some other cause beyond his control, the creditor or owner does not have in his possession the executed agreement or security instrument or any copy thereof. "
My agreement was December 1984 so it would fall under this. I wonder if they might be going to use this - just produce the current T&Cs, unsigned in court and quote these regs. They have said in their writ that they will produce the agreement in court. But how would things stand if they fell back on this, even though they would have no signed agreement, only the evidence of the operation of the account? Can anyone advise on this - or anything else re the above.
thanks very much :tinysmile_grin_t:
On the 16th May, I was served with Court Papers for an Ordinary Action in our local Sheriff Court (I live in Scotland) by McClure Naismith acting for M&S Financial Services.
The writ alleges that M&S have no reason to believe the agreement is broken, or that there are any other actions between the parties and that the court has jurisdiction. More interestingly it goes on to say that on or about 1st December 1984 I entered into a credit card agreement with them and that they will produce this. Two things here -
1. first of all it wasnt for a credit agreement but for their Chargecard (and therefore quite different t&cs I would guess) and
2. secondly it wasnt included in the bundle of papers they sent me on 29th April in reply to a CCA request.
The defence that I put in is
SHERIFFDOM OF XXXXXXXXXXXXXXXXXXX
Court Ref. No. XXXXXXX
in the cause of
MARKS & SPENCER FINANCIAL SERVICES PLC, a company incorporated under the Companies Acts, having its Registered Office at Marks & Spencer Financial Services, Kings Meadow, Chester, Cheshire GH99 9FB
PURSUER(S)
Against
Me residing at where I stay
DEFENDER
1.The averments regarding the defender are admitted. The existence of jurisdiction is admitted. Quoad ultra not known and not admitted.
2.Denied, as
a.There is no signed agreement in existence for the Mastercard xxxxxxxxxxxxxxxxxxxxxx. The DEFENDER will present a letter from the PURSUERS confirming this.
- The agreement allegedly entered into on or about 1 December 1984 is unenforceable in law as it lacks details required by the Consumer Credit Act 1974 Section 60(1)(a) – including, but not limited to, there being no heading saying it was a Consumer Credit Agreement; no credit limit; no details about repayments; no term stating the rate of interest to be applied; no signature by the defender.
- On or about September 2003, Marks and Spencer Financial Services sent the defender a Mastercard (xxxxxxxxxxxxxxxx) in breach of the Consumer Credit Act 1974 Section 51(1) and committed an offence in that they gave me a credit token when I had not requested this. The DEFENDER will present a letter from the PURSUERS confirming this.
d.The above notwithstanding, the transfer without request to a new agreement by Marks and Spencer FS is not enforceable as the Chargecard and Mastercard are so different as not to fall under the protection of the Consumer Credit Act 1974 Section 51 (3)(a) or (b). In particular the terms and conditions of the Chargecard and Mastercard differed in that
i.The agreement for the Mastercard is for a credit card, while the Storecard agreement was for a store card.
ii.Credit limits and interest rates for the two cards differed, as did other terms and conditions
iii.The Mastercard could be used in shops and businesses anywhere which displayed the Mastercard sign, while the Chargecard was restricted to use in Marks and Spencer shops.
3.Denied, as
a.No Default Notice has been served on the DEFENDER by the PURSUERS.
b.Given that the agreement is not enforceable in law, the PURSUER had no legal authority to require payment
4.Admitted but justified as there is no legal agreement between the parties, and the action has been brought before a Default Notice has been served, as required by law.
PLEAS IN LAW
1.The PURSUER’S averments are irrelevant et separatim lacking in specification, the action should be dismissed
2.The purported credit card agreement which the PURSUERS will present as evidence, does not conform in form or content to Section 60(1)(a) of the Consumer Credit Act 1974 and as such is unenforceable under Section 127(3) of the same Act. The Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported credit card agreement supplied by the Pursuer as unenforceable.
3.The PURSUERS on or about September 2003 from Chargecard to Mastercard was an offence under Section 51(1) of the Consumer Credit Act 1974, rendering any agreement between them and the DEFENDER unenforceable
4.The PURSUERS, by virtue of not having served a Default Notice, are not entitled under the Consumer Credit Act 1974 Section (87) to demand payment of the balance and the DEFENDER craves that the application be dismissed.
So basically my defence is that they dont have anything signed for the &more credit card. The agreement that they say they will produce I am suggesting will not match the requirements of the CCA (to be honest I dont know - I dont have it as I dont keep documents from 25 years ago, typically.However, on the basis of some questions I put on CAG, and got two replies, agreements signed 4-6 years after 1984 wont stand up, so it seems unlikely that an earlier one would).
Moreover, and to go back a wee bit, I CCAd them in March and finally got a reply on 29th April. It did NOT include any agreement - there isnt one for &more, which they admit in their letter of 29/4, but they dont produce the chargecard agreement either, though in the writ they say they will produce it in Court.
One thing that is troubling me is that as a result of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)
"9 Copies of old agreements and security instruments where the agreement or security instrument has been lost etc
Any copy of an executed agreement made before 19th May 1985 or of a security instrument relating to security provided before that date which is given to the debtor, hirer or surety under any provision of the Act on or after that date may comprise an easily legible statement of the current terms of the agreement or security as the case may be insofar as they are known to the creditor or owner where, due to an accident or some other cause beyond his control, the creditor or owner does not have in his possession the executed agreement or security instrument or any copy thereof. "
My agreement was December 1984 so it would fall under this. I wonder if they might be going to use this - just produce the current T&Cs, unsigned in court and quote these regs. They have said in their writ that they will produce the agreement in court. But how would things stand if they fell back on this, even though they would have no signed agreement, only the evidence of the operation of the account? Can anyone advise on this - or anything else re the above.
thanks very much :tinysmile_grin_t:
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