Arrows/Restons stayed Claim M+S credit card debt - Application to lift Stay

[Guest]

phantom

presume you (the J) mean 'substantive'?

[dx100uk]

ah! you filed an embarrassed defence:mad2:

no wonder,

 

so this time follow our tried and trusted method eh?

[Phantom943]

Apologies for the typo it should of course read substansive defence

 

Sorry you've lost me with this, please explain.

[dx100uk]

The claim was defended on the basis no defence could be entered as there was a lack of documentation to back up the claimants claim and none were included in the claim.

[Phantom943]

Seasons greetings all.

I have some work to do this week in assembling a defence for this matter.

Starting with the original Application for credit, im looking for people's views on this.

The document can be found in post 9 and is page ten of the attached PDF.

 

Im particularly looking for views on whether or not this is enforceable as my thrust of arguement will be that it does not include the prescribed terms and conditions within the four corners of the document.

 

Is there anything else which could constitute a defect?

and how do i go about setting this out in document form.

 

Many thanks in advance.

[dx100uk]

post 22 for a start

[Phantom943]

Many thanks.

They have provided two sets of what they say are T&C's my point will remain they are not contained within the four corners of the application form.

 

No notice of assignment,

from memory i think thier WS points to theres suficient information contained within other documents,

 

im going to be making a big point that their agent went to court and stated that the docs were available,

just not on the day

then back tracked a little and was in the process of saying it takes time to produce, at which point the Judge stopped her.

 

I'm looking for a nice choice of words to suggest that 13 months from request is reasonable amount of time in which to have supplied these and they havent or have witheld them for whatever reason. Some help with suitable words would be great.

 

The point about authorised payments.... this would of been payplan or similar i wasnt involved in that aspect and the other half has no recollection of what the arrangements would of been. Again soem suitable words may be hellpful if its thought this avenue is worth following.

 

I saw a thread regarding costs, im unable to find it again but there did appear to be some good argeuments against their costs, if someone canb recall the thread and point me in the right direction that would be helpful.

 

Theres also contained within their WS references to Default notice, we are sure there was no default notice sent to us or indeed a termination notice, again pointers on how to cover this aspect may be helpful.

Many thanks once again.

[dx100uk]

there are not 2 sets of T&C's in their WS?

 

dx

[Haunter]

“Other half opened a M&S account in September 1989.”

 

 

The agreement is subject to the CCA 1974 before it was amended in 2006, if the agreement does not comply with the statutory requirements of containing all the prescribed terms within the ‘4 corners’ of it, then you can rely upon s.127(3) of the 1974 Act before it was amended and the authority Wilson v First County Trust, House of Lords decision on this point, where it was held that such an agreement was irredeemably unenforceable against the debtor.

s.127(3) of the 1974 Act was repealed by the amendments in 2006!

Check your own records of the account statements and compare them with the amount stated as arrears in the default notice, if they are not the same, then the default notice is not accurate and therefore invalid.

Bear in mind that before the 1974 Act was amended the time limit to remedy the breach stated in the default notice was 7 days (it’s 14 days now since 2006).

As they haven’t complied with your s.77/78 request under the CCA, they are not entitled to enforce the agreement, although they will probably comply with it now after the recent hearing.

The PPI on the agreement is a relevant and material issue, because PPI is a fraud on the consumer (it was never “mis-sold”), this means that the agreement is a prohibited article under ss.1.7(b)(i) & 1.8(d) of the Police and Criminal Evidence Act 1984 as it has been used in connection with fraud contrary to s.1 Fraud Act 2006, in your case as the agreement is dated 1989, the PPI is deception under the Theft Act 1968.

As the agreement has been assigned, the Claimant is recognised as a creditor under the 1974 Act and therefore he is legally responsible for the PPI on the agreement and liable to pay it all back to you.

Work out how much PPI is due back to you and counterclaim for it.

The illegality principle applies to the agreement and the court (no court in the jurisdiction) can assist the Claimant on his claim:

The illegality principle – the law

The rule stated by Lord Mansfield CJ in Holman v Johnson (1775) 1 Cowp 341, 343, is a rule of public policy that;

“The principle of public policy is this; ex dolo malo non oritur actio ["no action arises from deceit"]. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own standing or otherwise, the cause of action appears to arise ex turpi causa ["from an immoral cause"], or the transgression of a positive law of this country, there the court says he has no right to be assisted.”

In Patel v Mirza [2016] UKSC 42, Lord Toulson (with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Hodge agreed) said:

[1] “No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.” So spoke Lord Mansfield in Holman v Johnson (1775) 1 Cowp 341, 343, ushering in two centuries and more of case law about the extent and effect of this maxim. He stated that the reason was one of public policy:

“If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.”

[120] The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, b) to consider any other relevant public policy on which the denial of the claim may have an impact and c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. Within that framework, various factors may be relevant, but it would be a mistake to suggest that the court is free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate.”

Happy New Year

Haunter

[Phantom943]

Good morning and Happy New year.

Pages 11&12 of their WS are the two seperate documents in question.

[dx100uk]

and neither of those are the full set of either T&C's

they are each pages long.

and if you look at the little numbers around the end

[cant clearly see in the scan]

neither date code related from the correct time period

so their CCa return is BOGROLL

made up from a couple of old sheets from their filing cabinet.

and an application form devoid of all the require prescribed terms.

[dx100uk]

the defence in this thread

https://www.consumeractiongroup.co.uk/forum/showthread.php?483337-MMF-Moriarty-claimform-old-Mr-lender-PDL&p=5087051#post5087051

gives you the bones of what you need to state

bar the PAPDC bit

[Phantom943]

I will be drafting the defence throughout the day.

Two quick questions.

 

1. A 1989 M&S Storecard/ Charge Card: what type of credit agreement would of been inferred would it be a rolling credit account or credit card at the point of inception.

 

2. PPI: would this forma part of the same application or be treated as a wholly sperate matter. Im assured nothing re PPI was ever sent only verbal information by the individual filling o

[dx100uk]

store charge card changed to a credit card later on

 

PPI is nothing to do with your claim whatsoever

 

that was levied by M+S not a DCA.

[AndyOrch]

The following may be of interest....

 

https://www.consumeractiongroup.co.uk/forum/showthread.php?413394-Santander-v-Mayhew-Judgement-in-favour-of-Consumer-Store-card-upgrade

 

Andy

[Phantom943]

Interesting,

however this may not be of much use to me as i cannot be sure that the card was changed

and even if it were i have no evidence it was changed or indeed when that would of been.

 

My gut feeling is that it was changed hence the rather vague details provided regarding transactions etc,

which only show debits and credits to the account and are watermarked M&S bank, not M&S Fincial services.

 

Another issue

ive noted is that the application form appears to have been over stamped with a serial number,

however thsi number does not reflect any part of the account number,

in effect there is no account number on the application form/ agreement either before or after inception.

[AndyOrch]

If you entered into the agreement 14th Oct 1989 it was a store card...they only converted to CC around 2003 I think.

 

https://bank.marksandspencer.com/explore/about-us/history/

 

http://www.bbc.co.uk/news/business-17670803

[dx100uk]

which all proves its bogroll

those document other than a sig are nothing to do with me.

 

shame [or not] about the statements

as until it was a credit card

you would only of been able to make purchases in house to M+S

[Phantom943]

Looking at the application form with regards to T&C's. Post No9 page ten.

 

In the top right hand box it makes reference to "see over" relating to lost or stolen cards.

 

The purported T+C's supplied (there were two)

are obviously not a photocopy of the original as the print is far too clear

but does corresppond to the section mentioned on the application form.

 

My question is then,

does this confirm that the T&C's were not within the four conrers of the form,

or could it be successfuly argued that they were supplied at the the point of inception.

 

In any case

my point would be they are not a copy of the actual form or part of at the point signing the application form.

 

I note also that the supplied copy is not complete

as there is clearly parts missing from both the top and bottom of the form,

but is this enough to state it is incomplete.

 

Cheers.

[AndyOrch]

Whatever they have disclosed will be questionable.....not going to have a copy of an agreement/T&Cs from 1989.

[Phantom943]

Theyve sent two copies one has the date 1989 the other 2004.

[AndyOrch]

Theyve sent two copies one has the date 1989 the other 2004.

 

Agreement with your signature ?

 

And further agreement for a store card or a credit card ?

[Phantom943]

Apologies for any confusion.

We have a photocopy of the application form which is signed by both parties from 1989, they have provided two copies of T&C's one of which they say is from 1989 The other they say is from 2004, though interestingly they are saying that these T&C's were in place when the account was terminated in 2011

[AndyOrch]

And is this application from 1989 for a store card or credit card...a world of difference....the T&Cs are irrelevant if not for the correct type of agreement.

[Phantom943]

The application was for Marks and Spencer Account Shopping.

The form then goes on to say its a Marks and Spencer Account Card.

 

I have just noted a few more points,

The 1989 document only mentions Budget Card and Charge Card

no mention of M+S Account card as per the application form.

 

Thinking more widely,

if these supposed T&C's were on the back of an application form,

then the account holder did not receive them as they formed aprt of the application which was sent away to be signed off.

There is absolutely no evidence at all that they were sent out an any point thereafter.

 

As for the 2004 T&C's

there does appear to be a discrepancy,

the document correctly identifies the account type as being ACCOUNTCARD (note the typo)

then goes on to say

"the clauses below are taken from the M&S Account card terms and conditions.

The definitions and other terms and conditions are set out in full in your copy of the terms and condition.

 

Theres then a clause relating to interest and variations of interest which says

"Interest is chargeable as explained in clause 7" only problem is clause 7 in the supposed 1989 document does not relate to interest.

 

i suspect very strongly the 2004 document has been made up,

particularly regarding the Typo's and some of the strange spacing used in setting out a number of paragrapghs.

 

Neither document has an M&S logo.