CCA Marks and Spencers Money

[SarahG]

Hi I was wondering if you can help. We have been struggling with payments and was advised to see if the creditors had a valid CCA. Now I have received one side of an application form with no prescribed terms but Marks and Spencers Money are insisting that this is a valid agreement.

I have today received a letter from Collections Direct UK and they mention the following in their letter

"The Ministry of Justice and the OFT have recently issued a consumer alert, warning people of the risks of being mislead over the enforceability of consumer credit agreements. We therefore strongly recommend you now seek legal advice if you intend to rely any further on the alleged breach of any of the acts that govern this account, pertaining to your liability to our client, as your current understanding is inaccurate. We confirm that a copy of this letter and previous correspondence will be made available to the courts and all governing bodies upon their request.

In the circumstances, we will not be entering into further protracted correspondence and request the you remit your proposals for settlement of this debt within 5 days from the date of this letter, together with a payment on account. Failure to do so will lead to further action being taken for recovery of the above amount, as per our client's instructions."

I am not sure how to respond - any ideas.

Thanks Sarah :beagle:

[Ruby]

Re: CCA Marks and Spencers Money

Hi, Sarah - I have an 'application form' that M & S are insisting is a valid agreement! I have been making regular token payments to M & S for a couple of years now so there are no threats from DCA's however I have sent all my paperwork to the FOS - I'm sure I have a valid case so hopefully the FOS will go in my favour and I can get £8500 wiped off.
I calculate I have paid about £5000 in interest to the account too - without a CCA why not try to get that back too. No where on their 'application form' did it state APR or interest rate, credit limit - nothing except my name address and employment details.

[SarahG]

Re: CCA Marks and Spencers Money

Hi Ruby, I too have got in touch with the FOS who have said that they are looking into the fact that M&S insist the application is in fact an agreement, I would say it is probably the same as yours. So it will be interesting to see what they have to say.

Marks and Spencers are aware that I have taken my complaint to the FOS but they are constantly harassing me for payment!

[Ruby]

Re: CCA Marks and Spencers Money

Lets keep each other posted with any news then! FOS said that they have given M & S till the 13th (today) to get back to them. When I called FOS yesterday they still had not received a reply as yet. I took out my card in 2003, I wonder if they still use the same 'application form'?
Two years ago my circumstances changed and I got into financial difficulty. I mentioned to M & S that I had received advice from the CCCS (similar thing as CAB) and a token payment of £5 was set up for me per month. I have made my payments regularly and on time and therefore in exchange they have stopped the interest and I don't get any calls from them at all. I hope this helps you in some way. Be nice to them and honest and they should come round to your way of thinking. Good luck! As for the FOS and the 'application form' - lets hope we get something really nice to celebrate in time for Christmas.

[Ruby]

Re: CCA Marks and Spencers Money

Hi Sarah, just had a phone call from Mr Patel at FOS - complete waste of time!!! FOS stance is as long as you have made use of the card then the agreement is enforceable and they do not look at the legalities of the CCA. Know any credible claims management company that can look into this for us? Mr Patel suggested we get a solicitor involved. The FOS are paid by the finance companies - surprise, surprise I'm spitting blood!

[SarahG]

Re: CCA Marks and Spencers Money

Hi Ruby, well an application form is unenforceable in court ...

Application Form
a)An application form with no Prescribed Terms, so void via s59. It cannot be regarded as an Agreement
b)A Court would be precluded from Enforcement because of s61(1)(a), s65 and s127(3).
c)No Prescribed Terms = does not comply with s61(1)(a). That makes it improperly executed.
d)Improperly Executed = can only be enforced by a Court because of s65.

Enforcement is therefore not possible if there are no Prescribed Terms - because of s127(3) makes it clear that unless a document exists that contains the Prescribed Terms and is signed by the Debtor, then the Court cannot enforce if the Agreement was made before CCA 2006.


When I first got in touch with the FOS they told me to ask the ICO to get M&S to send a properly executed agreement but as M&S were insisting they had sent an enforceable agreement I asked the FOS to look again, I will wait for a reply but don't hold much hope.



Will keep you posted.....Sarah :beagle:

[Ruby]

Re: CCA Marks and Spencers Money

From what I understand from the conversation with FOS this evening is that even if there was no sign of an agreement of any kind the most they can do is ask the company for circa £25 as inconvenience cost to me! Was I speaking to Dumbo? (sorry I have two young kids).

[Mochamoo]

Re: CCA Marks and Spencers Money

I'm rubbish with the whole CCA thing but have a read of this ~~~ Consumer Credit Agreements - A Guide ~~~~ inc. Letters - Legal Beagles has loads of info in it xx

[Sapphire]

Re: CCA Marks and Spencers Money

You beat me to it Mocha lol, yes please read the guide to the CCA and shout if you encounter any problems.

[Ruby]

Re: CCA Marks and Spencers Money

I have read the guide however what happens when you have reached a deadend? i.e. you know you have an uneforceable agreement but the company has pleading otherwise and the FOS take their side!
Lol
Ruby

[SarahG]

Re: CCA Marks and Spencers Money

Hi All thanks for your responses.

Looking at the thread it doesn't say what to do if there isn't an enforceable CCA and you want to use that as an advantage to offering a full and final offer.

I am hoping to get some money from a PPI claim and would like to offer a full and final offer of about 10% due to an unenforceable agreement.

What do you suggest should be the next course of action considering M&S keep saying one side of an application form with no prescribed terms is an enforceable agreement?

Thanks Sarah

[Mochamoo]

Re: CCA Marks and Spencers Money

Will see if I can find you an expert x

[Sapphire]

Re: CCA Marks and Spencers Money

If it doesn't have any of the prescribed terms basically it then is unenforceable and if they took you to court they would have to prove thats its a valid agreement which they can't so therefore a judge would laugh them out of court.

Basically that means you can use that as leverage but then again why would you want to pay something that is unlawful and uncollectable anyway.

In no way am I advocating avoiding the debt and normally recommend negotiating a repayment plan but as its unlawful, its their lookout isn't it.

There's a letter in the guide Legal Beagles #9 DCA Ignores CCA that you can send them, that will concentrate their minds for a while.

[Curlyben]

Re: CCA Marks and Spencers Money

Just to clear a few things up here.
1/ the FOS do NOT have any dealings with unenforceable agreements, so taking this to them is a waste of time.
2/ Without a scan to read I'm not going to make a judgement, but as previously mentioned without the prescribed terms they are onto a hiding to nothing.
3/ An application CAN be an agreement if it contains all the correct terms
4/ read the link Mocha posted earlier, should shed some light on things
5/ s127(3) ONLY applies to Pre April 2007 agreements as it was repealed under CCA 2006.

Any other questions ??

[SarahG]

Re: CCA Marks and Spencers Money

Hi Sapphire, the link didn't work to the #9 DCA Ignores letter.

Thanks Sarah
------------------------------- merged -------------------------------
Thanks Curlyben for your reply.

The one side of an application form I been sent under CCA and SAR is dated 2003 and I believe definitely unenforceable as it does not have any prescribed terms.

Thanks Sarah