Store card debtors to be let off

[mystery1]

Re: Store card debtors to be let off

Store card defined under the act?

could you link

Peter

Perhaps you could read what i wrote.

A restricted use debtor-creditor-supplier agreement (store card) upgraded to an unrestricted use debtor-creditor agreement is a modification and needs all the prescribed terms, signature etc.

In Mayhew the judge ruled the storecard agreement was unenforceable and then ruled the agreement needed a modification agreement for the credit card but since it wasn't it too was unenforceable.

The modification agreement (lack of) had nothing to do with the first agreement status.

The ruling in Mayhew is consistent with statute. I have seen a few times on forums that this is so and i suspect this also explains a previous lack of cases on the subject because many knew the outcome before it happened. Any such upgrade will fail in court unless a new agreement has been obtained. It has always been pretty certain that if a debtor maintains no signature truthfully and thus convinces the judge of such no agreement under CCA will be enforced modifying or otherwise.

M1

Yes indeed it is constant with statute, however it is only the case in this particulr instance(others may be similar or they may not).

The first agreement is relevant because it may be of the same catergory as the subsequent one, in this case it wasnt but it does not mean to say that it is not in all cases.

This is an exellant result, and a hearty well done to all concerned.

What i would hate to see hapen is that people who do not fully understand the judgment thinking that it applies to them when it does not, what i would hate even more is for CMCs to be able to convince people that it does, and get them to part with there hard earned on the stregnth of it.

This is not a liscence for everyone who has had a new card issued from a store account to claim unenforceability, it may be simmilar it may well be not.

Just a word of caution

Peter

Under what circumstances would a storecard ( restricted use debtor creditor supplier) being changed to a normal credit card (unrestricted debtor creditor) not require a modifying agreement with the prescribed terms signature etc ?

None that i can think of. It's a different type of credit as defined in the act.

M1

Storecard is not a defined term but restricted use debtor creditor supplier is (near enough anyway). Consumer Credit Act 1974


Did you miss the highlighted text or just choose to ignore it ?

M1

[labman]

Re: Store card debtors to be let off

If people are considering trying to take similar action to that of Plan B, I think the real point being made here is they would be wise to invest £1.00 in requesting a copy of the CCA Agreement first to ensure it exists.

If they fail to provide an agreement, they would then be well advised to cover their backs by sending the CPUTR letter pushing the OC on this point and specifically stating if court action is taken in the future, the letter will be used as part of the evidence.

I can't access the CPUTR from this device, but I will try to remember to post it up later.

[Guest]

Re: Store card debtors to be let off

[quote=mystery1;259883]Perhaps you could read what i wrote.]


Sorry ithought i did.
I don't want to be put into a situation where it looks like i am rubbishing this win, it is a great result and as i said well done to all concerned.

However the status of a storre card depends on its terms and conditions, it may well be as described by M1 or it may not , that was my point.

Yes if a credit facility changes from ristricted to unristricted use the creditor needs to get get a modifying agreement signed, this is hardly news.

In the case in question though this was not a deciding factor, IMO as there was no initial agreement to modify, the first one was declared unenforceable.

As i remember according to the transcript there was nothing said about the second agreement, other than one should have been sent.

My point is that it depends on what it says on the T and Cs also it must be bourne in mind that had the innitial agreement been correctly executed not sending of the modifying agreement would not have made it unenforceable, all transactions made under ithe earlier agreement would have been reclaimable.

There are far more intersting aspects of this judgment that I personally would like to discuss, the DN issues raised could be very useful for instance and also i would like to hear more about how the hearsay rule was introduced to silence their witness.

Peter

[TUTTSI]

Re: Store card debtors to be let off

Well done PT and Watsons Solicitors for taking this case on and winning. You have my vote every time x

[mystery1]

Re: Store card debtors to be let off

Para 12 of the the judgement.

" In my judgement the claimants analysis is wrong and there was a modification of the agreement requiring compliance with regulation 7"


M1

[Angry Cat]

Re: Store card debtors to be let off

Well done PT and Watsons Solicitors for taking this case on and winning. You have my vote every time x

Absolutely agree!

[labman]

Re: Store card debtors to be let off

Dear Sir/Madam,

Your Ref: xxxxxxx

This is a formal request under the Consumer Protection From Unfair Trading Regulations (CPUTR) 2008.

I require your organisation to provide written confirmation that states clearly whether you currently hold an original signed Consumer Credit Agreement, or whether you do not hold an original signed Consumer Credit Agreement pertaining to myself.

For the avoidance of doubt, an original signed Consumer Credit Agreement is just that; not an application for credit and not a reconstructed or microfiched document from other sources.

Please note that until such times as a legally enforceable, original Consumer Credit Agreement can be produced and a copy sent to me by return, then this letter is not an acknowledgement of debt.

Please also note that failure to provide a direct answer to this request will be brought before the court, should you decide to defy the content of this letter and instruct solicitors to pursue enforcement action regardless.

Yours faithfully,


As promised a couple of posts ago.

[Guest]

Re: Store card debtors to be let off

Intersting point about the DN being none compliant because it quoted to little to pay the arears. Reminded me of this, an observation of prof goode from Woodchester.

The decision would apply equally where the default notice states too small a sum as required to cure the breach. Here, the position is that the owner is not bound by that statement by virtue of s 172, but arguably might be estopped at common law from demanding more; on the other hand s 89 specifically provides that compliance with a default notice cures the primary breach. In that case, it is suggested, the inneffectiveness of a notice specifiying too much should not be mirrored by the

complete ineffectiveness of a notice specifying too little - s 89 should prevail.

Peter

[PlanB]

Re: Store card debtors to be let off

[quote=Mr.Peterbard;259911]

Perhaps you could read what i wrote.]


Sorry ithought i did.
I don't want to be put into a situation where it looks like i am rubbishing this win, it is a great result and as i said well done to all concerned.

However the status of a storre card depends on its terms and conditions, it may well be as described by M1 or it may not , that was my point.

Yes if a credit facility changes from ristricted to unristricted use the creditor needs to get get a modifying agreement signed, this is hardly news.

In the case in question though this was not a deciding factor, IMO as there was no initial agreement to modify, the first one was declared unenforceable.

As i remember according to the transcript there was nothing said about the second agreement, other than one should have been sent.

My point is that it depends on what it says on the T and Cs also it must be bourne in mind that had the innitial agreement been correctly executed not sending of the modifying agreement would not have made it unenforceable, all transactions made under ithe earlier agreement would have been reclaimable.

There are far more intersting aspects of this judgment that I personally would like to discuss, the DN issues raised could be very useful for instance and also i would like to hear more about how the hearsay rule was introduced to silence their witness.

Peter

Although I have lived and breathed every aspect of this case for over a year I must admit it is hard to grasp the "modifying agreement" legal issue. But I think it may be incorrect to say that if the first agreement had been correctly executed all transactions made under that earlier agreement would have been reclaimable even if no subsequent lawful agreement was created. Maybe someone with knowledge will tell me what happenend when the original balance was transferred from the storecard to the credit card. Did one account close and the next one never get lawfully opened

I'm pretty sure that I never reduced the credit card balance to a zero at any point so maybe I did still have a financial hangover from the first product which could have been chased in court if the original paperwork had stacked up :confused2:

[labman]

Re: Store card debtors to be let off

[quote=PlanB;259998]

Although I have lived and breathed every aspect of this case for over a year I must admit it is hard to grasp the "modifying agreement" legal issue. But I think it may be incorrect to say that if the first agreement had been correctly executed all transactions made under that earlier agreement would have been reclaimable even if no subsequent lawful agreement was created. Maybe someone with knowledge will tell me what happenend when the original balance was transferred from the storecard to the credit card. Did one account close and the next one never get lawfully opened

I'm pretty sure that I never reduced the credit card balance to a zero at any point so maybe I did still have a financial hangover from the first product which could have been chased in court if the original paperwork had stacked up :confused2:

That's a very interesting point, because there are a shed load of people out there who have agreements with WFS which are probably unenforceable, but have been the subject of a modifying agreement.

I realise this is slightly different as the original agreement and subsequent agreements are both restricted, but it would still be interesting to know what happens to the original chunk when the modifying agreement is made. SAR's to WFS muddle the figures to such an extent it is impossible to work out what actually happened.

[mystery1]

Re: Store card debtors to be let off

[QUOTE=PlanB;259998]

Although I have lived and breathed every aspect of this case for over a year I must admit it is hard to grasp the "modifying agreement" legal issue. But I think it may be incorrect to say that if the first agreement had been correctly executed all transactions made under that earlier agreement would have been reclaimable even if no subsequent lawful agreement was created. Maybe someone with knowledge will tell me what happenend when the original balance was transferred from the storecard to the credit card. Did one account close and the next one never get lawfully opened

I'm pretty sure that I never reduced the credit card balance to a zero at any point so maybe I did still have a financial hangover from the first product which could have been chased in court if the original paperwork had stacked up :confused2:

BBC NEWS | Business | M&S backs down in credit card dispute


I would doubt if many store to credit transfers were done with agreements being completed after the OFT got involved. This was over 8 years ago.

It would be a hard sell to a judge to say that however many payments were made did not clear the storecard balance.

M1

[Ihaterbs]

Re: Store card debtors to be let off

[QUOTE=PlanB;259998]

Although I have lived and breathed every aspect of this case for over a year I must admit it is hard to grasp the "modifying agreement" legal issue. But I think it may be incorrect to say that if the first agreement had been correctly executed all transactions made under that earlier agreement would have been reclaimable even if no subsequent lawful agreement was created. Maybe someone with knowledge will tell me what happenend when the original balance was transferred from the storecard to the credit card. Did one account close and the next one never get lawfully opened

I'm pretty sure that I never reduced the credit card balance to a zero at any point so maybe I did still have a financial hangover from the first product which could have been chased in court if the original paperwork had stacked up :confused2:

If the original agreement was restricted use which was subsequently transposed to an unrestricted use the latter would be a modified agreement and therefore any balance under the agreement is now unenforceable as the new agreement was never executed. How does "reclaimable" come into this?

[Guest]

Re: Store card debtors to be let off

Must admit didnt give it much thourght when wrote it , and it is a good point, still i think i have it right.
Bare in mind, that as my post on the default notice show there is very little that is right or wrong, if it was up to Prof Goode the DN would have been legit even though the sum was less tham what was owed.

Yes i agree if there was another agreement issued and the ballance was transfered the ballance would be subject to that agreement enforceable or not.
However in this case the creditor was under the impression that no other agreement was needed so he didnt issue one.

That means that the ballance remained with the orriginal unenforceable agreement together with the transferred ballences from the other cards fortunately.

If the orrginal agreement had been properly executed in my opinion the ballance would have remained there and the agreement would have been enforceable, there would i imagine been some argument about the sums transferred, but i would place my money on those being enforceable and reclaimable also.

Peter

[ODC]

Re: Store card debtors to be let off

I would say there is much discussion going on in the Leeds Threat Centre of the Clownells group. It will interesting to see what Bovine Excrement they spew forth when challenged about the shedload of M&S card debt they bought. They have sent me confirmation that my alleged agreement date exists long before M&S dished out free credit credit card gifts to all their charge card customers

[charitynjw]

Re: Store card debtors to be let off

I posted an analysis by Prof. Goode on one of Sparkie's threads a while ago.

A bit dated, but still seems to hold water.

(Sorry about the second page - I still haven't sorted that, lol!)