M&S store card turned credit card - what next?

[gravytrain]

Re: M&S store card turned credit card - what next?

I still think not defending should they serve the papers in my case would be extremely silly and that's what they would be hoping for anyway.

I would take advice, depending on what papers they have and what evidence they present, same as any other case lacking precedent.

The problem with cases like this is that some tend to thin k that one size fits all, in this case all card upgrades are unenforceable, it simply is not the case, it depends.

If there are other supporting arguments as in Plan Bs case all the better.

[Mr $quandaŁot]

Re: M&S store card turned credit card - what next?

I believe point one was the matter of the un-executed original agreement not the section 82 issue that was point 2.

This is the point I was trying to make.

I still think not defending should they serve the papers in my case would be extremely silly and that's what they would be hoping for anyway.

[gravytrain]

Re: M&S store card turned credit card - what next?

The lawyer who was there is PT2537 who is a member on this site. I know that because I was standing next to him in court since Plan B was the Defendant Diana Mayhew in the case :faint:

There were four legal arguments and we won on three of them. But you only need one to get a claim dismissed Counsel Paul Brant made the point that the credit card wasn't a simple *upgrade* or variation of the original store card's Tc & Cs it was a whole "transformation". This was the main legal argument and we won on it.

The judgment may have been made by a county court but it sent shockwaves through Santander and M & S which have about 5 million of these accounts between them. Santander had the right to appeal and they chose not to. Maybe that's because they didn't want this landmark judgment ratified by the COA. The claimant's silence speaks volumns :tape:

Yes I know, and I agree, fact is that it hasn't been "ratified", which argument was unsuccessful ?

[gravytrain]

Re: M&S store card turned credit card - what next?

If you read the judgement you will see that the defendant won on point one and the judgement is in favour of the defence on points 2 &3 but the claimant would have won on point 4 (s78) (i understand the defendant would have appealed this if it mattered)

M1

I believe point one was the matter of the un-executed original agreement not the section 82 issue that was point 2.

This is the point I was trying to make.

[Mr $quandaŁot]

Re: M&S store card turned credit card - what next?

Furthermore, I wonder how successful DCAs really are? All major smartphones now have an option to block numbers, resulting in calls going to voicemail. Some people are already giving up landlines and if not, there's a truecall option.

I think many DCAs rely on the fact that most people don't know their consumer rights, confuse debt collectors and bailiffs etc. Some M&S Pre Legal Recoveries template letters are also trying to use this to their advantage i.e. threats after threats without mentioning that in reality to actually get any of their threats materialised they would need a court order!

[PlanB]

Re: M&S store card turned credit card - what next?

No new agreement signed for their mastercard.

Just curious whether M&S (HSBC) might serve the court papers regardless in the hope that I wouldn't defend? I would of course and have made it crystal clear on all my correspondence with them.

The creditor can't serve court papers without first sending you a Letter of Claim or they'll be in breach of Civil Procedure Rules. That will give you the opportunity to spell out your reasons for believing the account cannot be enforced in court. Regrettably in my Santander case the creditor's solicitor Howard Cohen skipped that step.

I also have a M & S credit card which began life as a store card with no new agreement signed in between. But M & S chose to play games with me when I pointed this out to them. They produced a copy of a letter they say that they sent me at the time informing me that my store card was being replaced by the new product and inviting me to call them if I didn't want it. A sort of inertia selling effort but one the OFT may have let them get away with (although I doubt a court would).

This baffled me since I have a remarkable memory and I had never seen that letter before. But then I noticed that the address on the top of the letter related to a house I had sold three years before that M & S letter was *sent*. I had been living at that address when I opened the first store card and can only assume that they used that as a reference point for this imaginary letter. That puts the 'con' in reconstituted if you ask me.

I wrote back with documents from Land Registry showing the house had been sold and the completion statement from my solicitor as further proof. I also drew their attention to the fact that they had been sending me statements to my new home/address for years after that. I accused them of forgery. I haven't heard from them for over a year. I wonder why :confused2:

[Mr $quandaŁot]

Re: M&S store card turned credit card - what next?

Back to the original 'agreement', M&S sent me an application form with some largely illegible terms and conditions photocopied; it was a clear recon. Whether that would be enough for them to win had there not been a transformation from a store to a mastercard is debatable. In that situation I would probably request to visit their offices in Chester and see what they actually have, but I don't think it's relevant as things stand now.

As I mentioned before, I haven't heard from a single DCA as we speak but I'm not ready to relax yet.

[PlanB]

Re: M&S store card turned credit card - what next?

Yes I understand the argument, I am sure your lawyer will way up the pro's and cons for you. I re read the judgment last night, and I still think that the variation/ modified agreement angle has been a little over stated in most reports, only my opinion. The solicitor who was there will of course have a better idea.
I am only reading the transcript, but it does read like the judgment was based on three other issues as well.
Together with the fact that this was only in the lower court and sets no precedent.
I would only say treat it with caution, you are doing the right thing by taking advice in my opinion.

The lawyer who was there is PT2537 who is a member on this site. I know that because I was standing next to him in court since Plan B was the Defendant Diana Mayhew in the case :faint:

There were four legal arguments and we won on three of them. But you only need one to get a claim dismissed Counsel Paul Brant made the point that the credit card wasn't a simple *upgrade* or variation of the original store card's Tc & Cs it was a whole "transformation". This was the main legal argument and we won on it.

The judgment may have been made by a county court but it sent shockwaves through Santander and M & S which have about 5 million of these accounts between them. Santander had the right to appeal and they chose not to. Maybe that's because they didn't want this landmark judgment ratified by the COA. The claimant's silence speaks volumns :tape:

[mystery1]

Re: M&S store card turned credit card - what next?

Yes that was the opinion of this judge in this particular case, it may well be that the judgment applies but until precedent is set each will turn on its own evidence, this is all I am saying.

These forums are full of county court judges opinions which vary from case to case, the Mayhew case was a tour de force in that the solicitors got judgment on a number of issues, including the DN, the section 78 and the lack of an original agreement.
I cant see in the transcript any indication of how much each of these elements contributed to the decision. the creditors seem to think the main factor was the lack of an original agreement( well they would).
caution is always a good idea in my opinion.
In any case Paul will asses the situation accurately for you I am sure.

If you read the judgement you will see that the defendant won on point one and the judgement is in favour of the defence on points 2 &3 but the claimant would have won on point 4 (s78) (i understand the defendant would have appealed this if it mattered)

M1

[ODC]

Re: M&S store card turned credit card - what next?

I do wonder though if any of these M&S cases have ever seen the inside of a Courthouse and had the legaility tested. The OFT statement on the illegality speaks volumes to me. M&S were warned and belatedly tried to shut the loophole door after the horse had bolted

[gravytrain]

Re: M&S store card turned credit card - what next?

The DCAs have had 4 yrs to take a case against me and have singularly failed to do so. There is a substantial amount of money involved so surely it would be worth their while to try.

Why do DCA's sometimes enforce and sometimes not ? I suspect there are a number of factors, you may well be right, i know many cases where dca's buy debts never intending to enforce because they know there is no point, even if they got the judgment.(blood and stone) who knows.

[ODC]

Re: M&S store card turned credit card - what next?

The DCAs have had 4 yrs to take a case against me and have singularly failed to do so. There is a substantial amount of money involved so surely it would be worth their while to try.

[gravytrain]

Re: M&S store card turned credit card - what next?

Yes that was the opinion of this judge in this particular case, it may well be that the judgment applies but until precedent is set each will turn on its own evidence, this is all I am saying.

These forums are full of county court judges opinions which vary from case to case, the Mayhew case was a tour de force in that the solicitors got judgment on a number of issues, including the DN, the section 78 and the lack of an original agreement.
I cant see in the transcript any indication of how much each of these elements contributed to the decision. the creditors seem to think the main factor was the lack of an original agreement( well they would).
caution is always a good idea in my opinion.
In any case Paul will asses the situation accurately for you I am sure.

[mystery1]

Re: M&S store card turned credit card - what next?

http://www.bailii.org/cgi-bin/markup...method=boolean



Was the 2003 upgrade valid? In September 2003 the Defendant's card was "upgraded" to a dual card meaning that it was now a storecard and a Mastercard. The new card was sent unsolicited to the Defendant who needed to sign and activate it before she used it. It was open to the Defendant to decline the new card but she chose to activate it and use it. The new card had an introductory rate of interest for transferred balances and using it would gather loyalty points. The Defendant took advantage of both these features. The Defendant says that the agreement changed from a restricted use debtor-creditor-supplier agreement to being an unrestricted use debtor-creditor agreement and a debtor-creditor-supplier agreement which amounts to a modification of the agreement such that compliance with the requirements set out in regulation 7 of the Consumer Credit (Agreements) Regulations 1983. Compliance with the regulation requires a copy of the fresh agreement containing the relevant prescribed information to be served on the debtor. The Claimant did not allege that any such document was sent to the debtor. It was the Claimant's case that the new card was supplied under a credit token agreement which remained in force and that there was no modification attracting regulation 7. In my judgment the Claimant's analysis is wrong and there was a modification of the agreement requiring compliance with regulation7. The Claimant did not argue that it had complied with the regulation.



M1

[ODC]

Re: M&S store card turned credit card - what next?

Gravytrain whilst I understand your concerns in this matter I feel that the fact not one DCA has actually carried out the threats speaks volumes for the fact that they know the alleged debt is unenforceable. After all M&S were warned that what they did was illegal http://www.dailymail.co.uk/news/arti...edit-card.html