Please help me with this one I just want to be sure of my position and focus my thoughts, I would welcome your comments.

I have copies of application forms from Marks and Spencer but no agreement forms, one is probably a mail drop for their Reserve Account and one is from an in store promotion-'Apply for a credit card today, 10% off all today's purchases, immediate answer of approval etc' they make a phone call, say the application is approved, you get a temporary cardboard card to use that day and the plastic one arrives with card holder days later.The application forms haven't got any of the prescribed elements, they list things like your occupation, employers address , bank details etc.

I wasn't getting anywhere with M&S and made a temporary arrangement for 3 months to pay a lesser amount while I took the matter to FOS, I had believed that this arrangement stopped late charges and interest but this was not the case they just carried on with that and now at the end of the 3 months they want all the outstanding minimum payments unless I contact them by phone, they have made a series of thinly veiled threats.Since I wrote telling them all communications were being passed to FOS they have refunded the charges and interest they attracted.BUT the last letter I received was from Pre Legal Recoveries, they strangely have the same address as M&S, This was threatening house calls etc , as I have elderly infirm parents, I really didn't want that.So I rang them, from the beginning I said I wanted everything in writing to show my adviser, something they won't do(why not??????) they will agree something verbally and then confirm in writing...hmmmmm!

They say the application forms are enforceable, I will be taken to court,charges fees have bailiffs sent round to the house, put charges against my property(take both my kidneys) etc. While FOS is looking at they case I still have to pay an arranged amount etc. They were very aggressive. However bad guy turned into good guy and I'm almost on the brink of getting what I originally asked for-interest frozen and refunded to last April, they haven't put a DN on my file (they said they had)and said if I can make up the difference so the monthly payments equal 1% before 12 months, they won't; and they will accept my offered payments.

NOW ALL THIS SOUNDS TOO GOOD TO BE TRUE! Why are the DCA agreeing to something M&S wouldn't? The DCA are asking M&S to investigate and should give me the final answer tomorrow. I did send them this one -thank you conmankiller or stubieone

address

date

M&S Money

Kings Meadow

Chester

CH999 9FB

RE ACCOUNTS: xxxxxxxxxxxxxx

Dear Mr x,

Thank you for your letterxxxxxxxxx, the contents have been noted and a copy has been forwarded to the Financial Ombudsman Service.

It would seem that you are of the belief that you have discharged your obligations under the Consumer Credit Act 1974 in particular section 78(1).

You have provided me a copy of an application form not a properly executed agreement form.

Firstly, to comply with section 61 of the consumer credit act 1974 which by the way refers to the signing of an agreement (Not an application), a document must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed

These regulations I refer to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). These regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the SI1983/1553 without the prescribed terms the agreement does not conform to section 60(1) 1974 and therefore cannot be properly executed as described in section 61(1) CCA 1974.

The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: -

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit,

A term stating the rate of any interest on the credit to be provided under the agreement and

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--
(a)Number of repayments;
(b)Amount of repayments;
(c)Frequency and timing of repayments;
(d)Dates of repayments;
(e)The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

Nowhere on the application form that you supplied is there any reference to these terms. I wish to remind you that the absence of these terms will render a document unenforceable in court and I also wish to point out that these terms MUST be contained within the agreement and NOT in a separate document headed terms and conditions or words to that effect.
They must have been contained in a separate document, which is prohibited by the SI1983/1553, as there is no clear link to them within the signature document.

Therefore, you have failed to supply an enforceable document, which is correctly executed as to be so; it must conform to the Regulations under s60 Consumer Credit Act 1974.

I am of the opinion that a court is precluded from enforcing this agreement by s127 (3) CCA1974 as it is improperly executed under s61 CCA 74, the consequences of improper execution are set out in section 65 CCA 1974 and s65 sets out that only a court can enforce an improperly executed agreement subject to certain qualifications, one of those is that the document is signed and contains all the prescribed terms. Now since this document does not contain all the prescribed terms s127 (3) CCA 1974 strictly prevents the court from enforcing this agreement.

Yours Sincerely

This appears to be everything I originally asked for but I smell a rat, am I getting paranoid?

You seem to have covered all the stations up to now.

How did you get your copy of (what M&S call) the agreement? Was it via a section 78 request. If not you need to request it. Either that or do a SAR. <- (probably better than s.78)

My only concern would be the card holder. I'm not sure about the legislation on this but it's possible the card holder contained all the prescribed terms and might thus bind you into an enforceable agreement. But it's unlikely

Yes it was the 78 request and despite all the other letters I've sent along the same lines they haven't come up with the prescribed elements on anything. I can't remember what was on the card holder for the card account. I think the t&c were on a separate leaflet. I guess my problem is that I really expected M&S to be water tight and they sound so definite(but then they would) just smoke and mirrors?

So far they haven't called back, was this because I said 'It will give me a chance to clear it with my legal rep' or had my last letter just managed to filter through the system?

Thanks for getting back to me, it really helps to get someone to bounce back off.

Expect M&S (in fact every creditor) to carry on behaving as though they have a watertight case, with all the threats of court, charging orders etc. As you say it is all 'smoke and mirrors'. Right up to the court room doors in some cases.

But in the end, basically all the pt's must be on the agreement you signed (although that can be over two sides of one document and even several pages of a document, but they must all be absolutely and identifiably linked with page numbers etc.).

The others terms (schedule 1) may be referred to from the agreement document but not the schedule 6 pt's.

Remember also that what they have sent in response to s.78 is binding (s.172).