Merchants Rentals Plc

[julesmitch4]

Re: Merchants Rentals Plc

My contract with Handepay states Hypercom T4220 no choice was given to me. Is this helpful? I offered MR £5.00 a month Merchant Rentals have sent me an email dated yesterday :
Dear Julia

I have spoken with xxx with regards to your offer and we have decided to avoid further costs for both parties we will accept your payment plan. First payment to reach us in the next 7 days. Further payments to reach us by 12^th of every month for next 86 months and last payment to be £4.95.


If you default on this agreement we will take legal action without further notice.

I look forward to hearing from you.


Regards
Are MR getting desperate! I am getting on a bit so in 86 months I may not be on planet earth any more! I wonder if MR will still be doing this to other sole traders in 7 years from now!

[Merchants Rent]

Re: Merchants Rentals Plc

I had spoken with places like citizens advice..

Thanks for that I will send these details to the FSB for their submission to the OFT. Could you provide a couple paragraphs of written detail.. date.. how long the rep was with you ?

Did he/she take the contract away not giving you time to check the detail ? Etc etc
(Am I right in thinking all contracts have a cooling off period and if you don't have the contract
to check this basically prevents you from checking the terms within the "cooling off" period ?)

Regarding my specific situation..
I am considering defending the summons. I would like succinct para's of the various points raised here to use as a defence.

In my case it's a limited company does this affect the consumer credit act argument ?

I'm being told that the unfair contract terms is the only real road open to me to defend the summons.

I checked the contract this morning and the the rep has written the name of the company down incorrectly. Could I claim that technically the terms of the contract only apply to company written on the contract ? i.e. the wrong company.

I'm also interested in the argument that the rep must be licensed to act in the matter ? How would I find out if they were licensed or not ?
And where can I find the legislation that covers this ?

All help gratefully received.

[CleverClogs (RIP)]

Re: Merchants Rentals Plc

My contract with Handepay states Hypercom T4220 no choice was given to me. Is this helpful?

I believe it may be, as you did not select the item to be hired and hence section 101 of the Consumer Credit Act 1974 applies to the agreement. Regardless of what the agreement states to be the minimum notice period, the minimum notice period by statute is three months.
How much notice did you actually give to that wunch of bankers?

Are MR getting desperate?

Probably not, though one might wonder why they accepted your offer.

Perhaps they'd looked once more at their Consumer Credit Licence (attached) which does not permit them to canvas for business off trade premises?

[Merchants Rent]

Re: Merchants Rentals Plc

My contract with Handepay states Hypercom T4220 no choice was given to me. Is this helpful? I offered MR £5.00 a month Merchant Rentals have sent me an email dated yesterday :
Dear Julia

I have spoken with xxx with regards to your offer and we have decided to avoid further costs for both parties we will accept your payment plan. First payment to reach us in the next 7 days. Further payments to reach us by 12^th of every month for next 86 months and last payment to be £4.95.


If you default on this agreement we will take legal action without further notice.

I look forward to hearing from you.


Regards
Are MR getting desperate! I am getting on a bit so in 86 months I may not be on planet earth any more! I wonder if MR will still be doing this to other sole traders in 7 years from now!

I'm no expert and having calmed down a bit I would probably suggest you pay them for now.
..and see how all this pans out. If they are forced to amend the terms of their contract in future you could argue that this proves your contract was unfair in the first place and stop paying them.

If I defend the summons and win on the basis of it being an unfair contract then I believe this would set a precedent ? And you could use this if they ever took you to court.

I've been to Small claims several times over my 30 yrs in business chasing non payers.. and I think the legal folks here would probably agree it is a lottery.

I've been told that even at £400-600 Merchant Rentals are losing money on all this.. so it makes sense to drag things out.. make them put in more work... and more cost I'm told that if I put in a defence a mediation process will begin and they must take part in this and that all takes time and costs them money. I'm told my costs in this are limited to an additional £75 until they get judgement at which point they can legally get the heavies involved. Have I got this right ?

In my case its a limited company I'm told the consumer credit act doesn't apply to limited companies ?

[yorkshirepud]

Re: Merchants Rentals Plc

The t4220 terminal is the same they wrote on my contract Julia. I too had no choice of terminal.

[CleverClogs (RIP)]

Re: Merchants Rentals Plc

If I defend the summons and win on the basis of it being an unfair contract then I believe this would set a precedent ?

It wouldn't, as it would be heard in the County Court; it would only set a binding precedent if they appealed and lost.

Nevertheless, a case heard in a County Court may be persuasive...

In my case its a limited company I'm told the consumer credit act doesn't apply to limited companies ?

I'm not sure about that.

You could try making a request for the executed agreement and all documents referred therein under section 79 (link) of the Consumer Credit Act 1974; it may slow them down and they might even be unable or unwilling to comply with the request.

[Deepie]

Re: Merchants Rentals Plc

I'm looking to leave my current Merchant service provider ..been with them 3 years in June 2014

Just read my T & C it says I have to give 1 months notice after the first 12 months...

And then goes on to say a cancellation charge of £150 plus VAT on each terminal.....

Rip off..........




























7

[Merchants Rent]

Re: Merchants Rentals Plc

You could try making a request for the executed agreement and all documents referred therein under section 79 (link) of the Consumer Credit Act 1974; it may slow them down and they might even be unable or unwilling to comply with the request.

Presumably this is a different agreement to the one I signed ?

In view of the fact I have to put a defence in within the next week, should I ask for this as part of document disclosure I.e via the court ?

If it says in the agreement it is governed by the consumer credit act.. Does this means CCAct applies even though it if the hirer is a limited company ?

Do we get into higher costs if it's heard in a county court ?

[CleverClogs (RIP)]

Re: Merchants Rentals Plc

Presumably this is a different agreement to the one I signed ?

No - it would be the same agreement.

In view of the fact I have to put a defence in within the next week, should I ask for this as part of document disclosure I.e via the court ?

I had not appreciated the urgency of this matter - a CCA request could take a fortnight to default, which is time you don't have.

If it says in the agreement it is governed by the consumer credit act.. Does this means CCAct applies even though it if the hirer is a limited company ?

I believe that it does, as the company is/was a consumer of a business service and the hirer of the terminal used to access that service.

I do hope that Andrew will pop along soon to comment but, under he says otherwise, I believe that section 101 of the CCA sets the minimum notice period to three months rather than twelve, that all the claimant may be entitled to receive would be three months' monies at the most and that section 173 of the CCA (link) means that they cannot rely on any term or condition regarding the minimum notice period.

Do we get into higher costs if it's heard in a county court ?

Rather than heard where - in a Kangaroo Court?

The matter of costs would depend on the track to which the claim was allocated; as it is quite simple and less than £10,000 it would presumably be allocated to the Small Claims Track.

[SXGuy]

Re: Merchants Rentals Plc

I.e Costs would be paid by each party, so it can be costly, and you would need to be sure of a win.

[Merchants Rent]

Re: Merchants Rentals Plc

No - it would be the same agreement.
I had not appreciated the urgency of this matter - a CCA request could take a fortnight to default, which is time you don't have.

I'm not following you.. why would I ask for a copy of an agreement I've already got ?

I was thinking of including the following in my defence and would welcome any suggestions, additions and advice about this.

"Under section 101 of the Consumer Credit Act 1974 which Merchant Rentals states governs the agreement. Regardless of what the agreement states to be the minimum notice period, the minimum notice period by statute is three months. Where the item(s) to be hired are not chosen by the hirer, section 101 of the Consumer Credit Act 1974 does apply and that the minimum notice period is therefore three months, that section 173 of the Act prevents a term in a contract from removing the hirer's rights and that hence all the claimant might expect to receive would be three months' notice or three months' payments in lieu of notice. (amended after Post 72)

I wasn't given the option to select which terminal was installed.

Also
OFT - Group 8: Excessive notice periods for consumer cancellation.

Schedule 2, paragraph 1, states that terms may be unfair if they have the object or effect of:

(h) automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express his desire not to extend the contract is unreasonably early.

8.1 A clause which states how long a contract has to run is likely to be among its most important 'core' terms²⁴ If a lesser term in small print can be used, relying on customer inertia, to extend the contract period beyond what the consumer would normally expect, it is not a core term, and is liable to be considered unfair.
8.2 Particular suspicion attaches to a term in a contract for a fixed period which, if early notice to cancel is not given, automatically commits the consumer to a renewed fixed term.
8.3 The OFT considers that an over-long cancellation notice term may also be unfair in a contract which continues indefinitely rather than for a fixed term. Consumers entering such contracts normally expect to be able to end it a reasonable time after they decide they no longer want or can no longer afford what is provided under it. If they are required to make a cancellation decision too far ahead of time, they are liable either to forget to do so when they need to, or wrongly to anticipate their future needs. In either case, the effect of the term is the same as that of an 'automatic renewal' clause – they experience an unintended extension of their payment obligations.

I am supported in defending this summons by The Federation of Small Business who intend to make a submission about this to the OFT and have campaigned successfully and already brought an end to the use of these "automatic rollover" contracts in several sectors.. including energy, waste management and telecoms.

If these contracts are already consider unfair and have been withdrawn in several sectors why should an exception by made for Merchant Rentals PLC ?

I would like to add that these unfair terms were not stated at the time of signing.

I'd like to add something about the lack of a Severance clause in the T&C's ?? Plus I'm happy to add anything else folks can come up with ?

Is it worth asking them to provide proof the rep was licensed to sign the contract ?

I wonder if it was standard practice for them to retain all copies of the agreement in which case they make it impossible for anyone to check the T&C's of the agreement within the cooling off period ? I would like to know if anyone reading this was actually given a copy of the agreement at the time of signing ? I was under the impression this was a legal requirement ? If this was the case I would like to also submit these details to the FSB and would welcome written statements to that effect from anyone reading this who is in the same position ?

Am I right in thinking if I made a payment equivalent to the three months notice into court and this is the amount the court decides is owed, then this mitigates my costs ?

[CleverClogs (RIP)]

Re: Merchants Rentals Plc

I'm not following you.. why would I ask for a copy of an agreement I've already got ?

Because you can and because if they cannot (or will not) satisfy that request, they are barred from enforcing the agreement until/unless they do comply.

However, it's too late for that unless you can get an extension.

I agree that the twelve months notice period is unreasonably long. I would state that, where the item(s) to be hired are not chosen by the hirer, section 101 of the Consumer Credit Act 1974 does apply and that the minimum notice period is therefore three months, that section 173 of the Act prevents a term in a contract from removing the hirer's rights and that hence all the claimant might expect to receive would be three months' notice or three months' payments in lieu of notice.

But that is not really a defence; I'll see if I can get someone along to knock it into shape.

[Merchants Rent]

Re: Merchants Rentals Plc

Because you can and because if they cannot (or will not) satisfy that request, they are barred from enforcing the agreement until/unless they do comply.

Could I not request this as part of "document disclosure" when submitting my defence ?

So when/if the court asks "why do I want a copy of an agreement I've already got what would I give as a reason" ?

However, it's too late for that unless you can get an extension.

Wouldn't MR need to comply with a request for full document disclosure before a date is set for the the case ?

I agree that the twelve months notice period is unreasonably long. I would state that, where the item(s) to be hired are not chosen by the hirer, section 101 of the Consumer Credit Act 1974 does apply and that the minimum notice period is therefore three months, that section 173 of the Act prevents a term in a contract from removing the hirer's rights and that hence all the claimant might expect to receive would be three months' notice or three months' payments in lieu of notice.

But that is not really a defence; I'll see if I can get someone along to knock it into shape.

I very much appreciate your help on this.

IYO Is it worth trying that the company name is incorrectly recorded in the agreement and that this weakens any case based on the specifics of the agreement ? If I say i accept there is a contract and that "the company" has complied with the "spirit" of the agreement but the unfair notice terms weaken the legality of the agreement.. and this inaccurate wording also weakens the agreement to the extent the specifics of the contract are compromised ?

[Never-In-Doubt]

Re: Merchants Rentals Plc

I've asked Andrew to pop in and see what he thinks, we are looking at this behind the scenes as well, so please bear with us......

[ATW]

Re: Merchants Rentals Plc

If the debtor is a limited company I don't think the CCA applies whatever the contract might say in its heading. Its a business machine hired by a business to help it conduct its business so subject to what others have to say I think the CCA may be a red herring.