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

[Mr $quandaŁot]

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.

Paul has seen the application form M&S sent and has assessed this case. He is the lawyer who kindly wrote a reply to Pre Legal Recoveries. I will use him if need be unless he has changed his mind about my case.

[FlamingParrot]

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

That would probably depend on the amount outstanding on the account. If it is over Ł5k then the case would be allocated to the county court Fast Track and they would be risking not only their own legal costs but made to pay the other side's costs if they lost. If the case is in the Small Claims Court they may want to have-a-go, although I'm aware of at least one case where M&S discontinued on receipt of a copy of the Santander vs Mayhew judgment the day before the hearing :fear:

WOW! in that case, here it is, so you guys can 'hit them' with it if and when required. :okay:

[pt2537]

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

one wondes what triggered the sale of a huge portfolio of accounts to Sigma SPV limited???

Seems certain credit card company didnt fancy a second hammering at the hands of the judiciary.

[FlamingParrot]

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

If another judge doesn't agree with Henrietta Manners' view then I would strongly suggest an Appeal. That would be your plan b. That's exactly the situation that M&S and Santander don't want to find themselves in because it would expose them to the possibility (I prefer probablility) of a legal precedent which would be binding on them in relation to the 5 million accounts they have on their books :eek2:

I should say that DJ Manners was most reluctant to reach her judgment and she spelt that out clearly throughout the day in court. In the end she had to concede that her hands were tied by the law. Believe me she tried very hard to avoid this. She was up against a damn fine barrister though and LIPs may not be so successful

Mr $quandaŁto said on his first post that the balance is Ł10k, that's way above the small claims threshold, so it shouldn't be too difficult to find legal representation on a conditional basis I would think. :nerd:

But we're getting ahead of ourselves here, there's no indication whatsoever that this is ever going to court! In many cases the decision to go to court depends on the creditor's circumstances: if they are note homeowners there's no possibility of obtaining a charge on property to secure the debt, and if they are unemployed or on a low income, all they'd get is Ł1/month if they won and got the CCJ, hardly worth the trouble!

[PlanB]

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

As Plan B wisely says you need to have a plan b in case the judge doesn't agree with Judge Manners.

If another judge doesn't agree with Henrietta Manners' view then I would strongly suggest an Appeal. That would be your plan b. That's exactly the situation that M&S and Santander don't want to find themselves in because it would expose them to the possibility (I prefer probablility) of a legal precedent which would be binding on them in relation to the 5 million accounts they have on their books :eek2:

I should say that DJ Manners was most reluctant to reach her judgment and she spelt that out clearly throughout the day in court. In the end she had to concede that her hands were tied by the law. Believe me she tried very hard to avoid this. She was up against a damn fine barrister though and LIPs may not be so successful

[FlamingParrot]

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

So basically they will attempt to bluff people that they have a case and if someone contests it on the basis of Mayhew then they will not risk going to Court

It's very easy to bluff people because the majority haven't even heard about unenforceability, let alone card transformations or the Mayhew case! Forums like this one are beginning to raise awareness about these issues but sadly most people are still unaware of their legal rights and are easily intimidated by the banks and the threat monkeys they unleash.

We are privileged to have all this information and its our duty to spread the word, so more and more consumers are aware that creditors don't hold the upper hand. We are also lucky to have a couple of people on board here who were directly involved in the case, :clap2: not everyone's that lucky! :nono:

Let's not forget that Satan's Den didn't just miss out on the Ł5k Mayhew allegedly owed them on the infamous card, they were saddled with Ł50k worth of costs! :bounce:This is likely to act as a disincentive for any creditor in a similar situation to go to court, especially when they will have other cases that are easier to win.

[PlanB]

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

So basically they will attempt to bluff people that they have a case and if someone contests it on the basis of Mayhew then they will not risk going to Court

That would probably depend on the amount outstanding on the account. If it is over Ł5k then the case would be allocated to the county court Fast Track and they would be risking not only their own legal costs but made to pay the other side's costs if they lost. If the case is in the Small Claims Court they may want to have-a-go, although I'm aware of at least one case where M&S discontinued on receipt of a copy of the Santander vs Mayhew judgment the day before the hearing :fear:

[FlamingParrot]

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

Forget the transformation issue for now, would the application form M&S sent me make the agreement enforceable?

We can't tell without seeing it, however, I doubt that would really be relevant if you signed agreeing to T&Cs for a restricted use product you could only use in M&S stores.

I've also read somewhere that sending an unsolicited credit token is a criminal offence. I'll have to dig that up.

[ODC]

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

To avoid setting precedent if they lost, simples!

As noted on various posts above, there are around 5 million such 'upgraded' or 'modified' storecards around, so it would be disastrous for the likes of Satan's Den and HSBC if such precedent was set.

So basically they will attempt to bluff people that they have a case and if someone contests it on the basis of Mayhew then they will not risk going to Court

[Mr $quandaŁot]

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

Indeed, my opinion also but just opinion sadly unlike this from the same judgment which is what actually sealed their fate.

I believed her evidence that she had not received any terms and conditions, either when she took the application form or when she received the card. I therefore find that the April 2000 agreement is unenforceable.

Forget the transformation issue for now, would the application form M&S sent me make the agreement enforceable?

[gravytrain]

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

If a multinational company like Santander did not think the judgement of a mere CC Judge was correct then why not appeal it.

they would quote my last post I suppose. Who knows

[gravytrain]

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

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.

Seems pretty clear to me.

M1

Indeed, my opinion also but just opinion sadly unlike this from the same judgment which is what actually sealed their fate.

I believed her evidence that she had not received any terms and conditions, either when she took the application form or when she received the card. I therefore find that the April 2000 agreement is unenforceable.

[FlamingParrot]

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

Rankin was the claimant, not defendant.

Indeed, this point is often missed, as with the infamous Carey case which is the bank's and DCA's favourite: challenge your agreement or dispute your account and you get a number of quotes from Carey thrown at you. What they never tell you is that, in those cases, the debtors took the creditors to court to have their agreements ruled unenforceable, in that case the onus was on the debtor to prove there hadn't been a properly executed agreement. Mayhew, on the other hand, was the defendant.

The Rankines did win a few cases in the beginning, that's how they got the idea of building a business out of it. I saw their Panorama program in 2008: "Can't pay, won't pay". They may have been confidence tricksters, I don't dispute that, however, they opened our eyes to the possibility of the almighty banks making mistakes with the paperwork for our cards and loans. They attempted to turn it into a money-spinner and that's where they were wrong, some of us nearly fell for it at the time!

[FlamingParrot]

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

If a multinational company like Santander did not think the judgement of a mere CC Judge was correct then why not appeal it.

To avoid setting precedent if they lost, simples!

As noted on various posts above, there are around 5 million such 'upgraded' or 'modified' storecards around, so it would be disastrous for the likes of Satan's Den and HSBC if such precedent was set.

[Mr $quandaŁot]

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

I would not consider this as a 'done deal'. In fact there are just two certainties in life!

As Plan B wisely says you need to have a plan b in case the judge doesn't agree with Judge Manners.