M&S Storecard to Credit Card

[PRBrown]

Does anyone have any definitive interpretations, views, evidence, or experience of the situation regarding M&S and the change from storecard to credit card?

 

I originally took out a M&S store card in 1996. In 2003 I was sent a M&S credit card. I didn't request it, I didn't fill out any form or apply for it, it was simply sent as a replacement for the storecard I had.

 

When I did a recent CCA request to M&S for my Credit Card I was sent a copy of the application form for the store card and some current T&C's for the credit card.

 

Is the storecard application - enforceable or not for the storecard - sufficient evidence of an enforceable agreement for a Credit Card? My gut instinct says no, but that's only my laymans view.

 

I don't know whether to start disputing the account or not, and would like to know more about what other people have found out before I do anything drastic.

[IainHL]

Hello there PRBrown. Whilst I can't claim what I say is definitive, but my experience is the same as yours. In response to my CCA request for the credit card they sent my application form/agreement for the charge card that preceeded it.

 

I am not sure if this is what you mean by storecard, however my recollection is that the charge card was the one where you had to pay off the balance in full every month. Because of this there was no interest charged/payable. And therein lies the rub. The application form/agreement they sent me makes no reference to interest charges (apart from the fact it is fairly illegible, another failing under the Act), so where is their authority to charge me interest as they have been doing on the credit card? The answer is simple, they don't have one.

 

However, do be prepared for a long fight, and many letters from M&S spouting their view that they have an enforceable agreement. I have even had to point them to the appropriate parts of the Statutory Instruments because they tried to claim they had 40 days to respond to my CCA request! Just be sure of yourself , read the threads in this M&S forum to see what has happened to others, and keep writing those letters to M&S. It has taken me from April till now to get to the point where they basically now have the choice of taking me to court (with an unenforceable agreement), doing nothing, or agreeing to write off the balance and close the account.

[seriously fed up]

I had some involvement with M&S over the summer, as they issued court documents against me. I was in the same situation as you - my &more card just arrived one day, no documents, no sig needed, just go out and use it. The foundation of their legal claim was, they said, the agreement (which was 25 years old) for the Chargecard. I put in a defence and a couple of weeks later they withdrew their action.

My defence basically asserted that

1. they had - and they admitted this - no signed agreement for the &more card

2. if they did produce the Chargecard agreement, it would not be compliant - no rate of interest, no credit limit, no repayment details and no signature. Basically I took a punt on this - I really didnt know, EXCEPT that I found two people on this site who had got back from M&S their Chargecard agreements which were about as old as my own (slightly less old actually) and they were rubbish, so on the basis that it was less likely that they had got worse with the passage of time, this seemed a decent bet

3. the Chargecard and &more cards were SO DIFFERENT that M&S could not just transfer people from one to the other in the process free way that they did wilth me (and seem to have done with you). My defence identified that &more could be used anywhere with the mastercard sign, whereas the Chargecard was only useable in M&S; the credit limits, even allowing for inflation, were very different; the T&Cs were very different. Iain has referred to there being no credit - but I think this depended on which type of Chargecard you opted for. Mine did bring credit.

4. M&S by sending the &more card without being requested arguably committed an offence under s51 of the 1974 Act - unrequested credit token - and that this too made any agreement unenforceable.

Its hard to say which bit(s) of this frightened them off, but, as I said, this never even got to to Court, not even a prelimnary hearing.

For what its worth a friend who at the time M&S moved to &more worked in the credit card industry said that the rest of the industry was "****ing gobsmacked" by the way that M&S did this.

Basically, my view based only on my own experience is that they are trying it on. I dont see how an agreement for one product can simply be transferred to another product without any kind of admin process (for instance your signature agreeing to be bound to the new terms and conditions). Moreover

a. would the chargecard agreement stand up in court - are the prescribed terms on the sig page? If not then they are back to zero, as that is the document that they have to rely on.

b. to send you that WITH &more T&Cs is stupid almost beyond words as its IMPOSSIBLE that the two documents will have ANY relationship to each other. Very often lenders will assert "here is your agreement, and here are the associated T&Cs" - they cant even assert that here.

[IainHL]

A question if I may seriously fed up, on behalf of the original poster and all of us currently arguing with M&S.

 

After they withdrew their action what happened to your account? Did they agree to close it? Did they remove the information from the CRAs?

 

If you have your own thread on this perhaps you could include a link?

[PRBrown]

Thanks for your replies. The card was an "account card" which I suppose was a chargecard. You didn't need to pay off the balance every month although the interest rates were huge for that time , and it could only be used in M&S stores.

 

Interestingly, some T&Cs arrived today in the post that they claim was attached to the original application form. They look as if they could belong to the original application but whether they were a tear-off, or on the back of the form, isn't clear.

 

The terms provided are compliant except for the credit limit where it states a limit will be "subject to approval by us". I'm not sure whether that makes the whole thing not compliant or whether it's just a small technicality that would get ignored in court. I hope it does invalidate the agreement.

 

The form is clearly an application form, but the Terms sent today do state it is a credit agreement regulated etc etc. Without a SAR I can't be sure the application form and terms are related but it would be safe to work on the assumption that they are at the moment.

 

If I decide to fight this my only strong defence might be the application is for a chargecard while they are seeking payment of a credit card. I wish it was clear whether the credit card cannot be considered related to the charge card application.

 

I have a similar thread about MBNA/Virgin where the Virgin card was supplied without even an application being filled out - http://www.consumeractiongroup.co.uk/forum/mbna/229916-mbna-virgin-dodgy-cca.html - but no-ones replied to that one yet.

 

Thanks again for your help. If it gets to a fight I'll keep this updated.

[seriously fed up]

One thing to be appreciated about my case is that since I live in Scotland, it was heard under Scottish law. The Consumer Credit Act is the same, but the procedures are different.

When I got the court claim, i had a period of time to put in a defence (about a month - which I did) and a date for the first hearing was set for about two months later. About a month before the hearing, I got a letter from the solicitors who were acting for M&S saying that they had considered my defence and that, "without admission of liability and purely on a commercial basis" they wanted to move for dismissal. Now, I could just have let that happen, but the problem with dismissal is that they would have been able, had they chose to do so, to put the case back in again at some point of their chosing. So, I insisted on a motion of absolvitor (The judgement pronounced when a court assoilzies - finds for - the defendant) This meant their case was settled to the advantage of the defender - ie me - and they could not bring another case for the same cause. They also undertook to remove all adverse credit references in relation to this account. Did they close the account? Since that account can no longer be legally enforced, it hardly matters

You can get the whole story - including a verbatim copy of the defence - at http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/199747-help-court-papers-m.html

PRB, taken together there will be an apparent compliance, but what I dont see is how you can even hope to link up a Chargecard application (or even a Chargecard agreement) with &more T&Cs. What you are asking for is the agreement that you signed for the Chargecard including its T&Cs. The &more T&Cs are a variation from this. In any event, does an agreement for a card with a relatively low credit limit, different interest rates and repayment arrangements and which can only be used in one shop, can be used as the basis for another card (with another number?) with all of these things changed? Basically the issue is whether the change is SO great that there should be a new agreement. Have a look at my defence on that point.

Just one last thing to note - dont expect them to agree with you. Even when they had decided to abandon their case (on my terms) it was only on a "commercial basis and without admission of liability". In other words, even when they are wrong, they are still not wrong.

[PRBrown]

You can get the whole story - including a verbatim copy of the defence - at http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/199747-help-court-papers-m.html

 

Wow! Excellent thread and very well done.

 

I'm in Scotland too, so all of it is extremely interesting. I get the impression that the Scottish system is more complicated and possibly a lot scarier for an individual that the English system, but it also seems much fairer too. I like the idea of the "period of adjustments" which seems very civilised although I'm sure some of the exchanges could get quite heated. Don't want to start a Scottish/English battle here. It's just the impression that I get.

 

PRB, taken together there will be an apparent compliance, but what I dont see is how you can even hope to link up a Chargecard application (or even a Chargecard agreement) with &more T&Cs. What you are asking for is the agreement that you signed for the Chargecard including its T&Cs. The &more T&Cs are a variation from this. In any event, does an agreement for a card with a relatively low credit limit, different interest rates and repayment arrangements and which can only be used in one shop, can be used as the basis for another card (with another number?) with all of these things changed? Basically the issue is whether the change is SO great that there should be a new agreement. Have a look at my defence on that point.

 

It's a point that is well made in your defence, and if it gets down to it I will "borrow" your arguements.

 

Just one last thing to note - dont expect them to agree with you.

Fortunately, I'm not naive enough to believe it will be the slightest bit pleasant or easy, but I appreciate the warning.

 

My job requires a lot of diplomacy and I have to deal with angry, irrational, beligerent, bullying, and downright nasty people on a regular basis, so I'm ready for anything between a reasoned argument to "giving as good as you get". I never take it personally so I won't be losting sleep or worrying about it. I don't work for a DCA and I'm not involved in the financial services industry in any way - in case you were wondering about the beligerent, nasty and irrational people I have to deal with.

[seriously fed up]

Not sure about "complicated". I think some of its problem is a tendency to contrinue to hide behind acrcane terminology - assoilzie for instance.

Re my defence - borrow as you think best, and if you think I can help, post on here or pm me.

Bit surprised they are having another go in Scotland as I know they lost another case up here at almost the same time. My hypothesis is that they go for a number of cases (btw, just out of interest, if they do issue court papers, dont be surprised if its McClure Naismith who act for them) - say 100. Of those 100, x% will just crumble and come to an arrangement with them; y% might proceed to court but with such a poor defence that they lose; z% put up a good defence and they back off. If they see these as bad debts on which they wont get anything back without trying their hand at the law, then as long as the costs of the z% that they lose (which they minimise by not actually going to court) is less than what they recover from x+y, then they are ahead. I suspect this is all about percentages from their pov, and from our pov showing that we know how to see them off.