Court Claim - Arrow Global / Marks & Spencer - 30-7-2015

**nemesis45** · 3rd August 2015, 10:46:AM

Re: Court Claim - Arrow Global / Marks & Spencer - 30-7-2015

Hi welcome to LB,
Do you know if this account/contract was on an agreement " Regulated under the Consumer Credit Act 1974 or was it treated as an current account with an overdraft facility?
Not on CRA file could indicate that the default was more than 6 years ago, can you remember when the account was last used i.e. a payment into the account? Has there been any other companies chasing this, have Arrow /Reston been in touch before the claim was issued? If so has any payment been made in the last 6 years to any party.

nem

**FlamingParrot** · 3rd August 2015, 11:12:AM

Re: Court Claim - Arrow Global / Marks & Spencer - 30-7-2015

Originally posted by steveisfound View Post

Received a claim? Yes
Issue Date: 30-7-2015
Amount approx: 3300
Claimant: Arrow Global
Solicitor: Restons
Original Credit: Marks & Spencer

Particulars of Claim:
The claimant claims payment of the overdue balance due from the Defendants(s) under a contract between the Defendant(s) and Marks and Spencer Financial Services PLC dated on or about Dec 15 1998 and assigned to the Claimant on Feb 21 2013

Stat Barred? No

This sounds very similar to the case PT2537 :yo: posted about the other day, where Arrow were arguing an M&S reserve account was apparently an overdraft!

You will be pleased to hear Arrow got beaten to a pulp! :whoo:

I'm quoting his blog post below for your convenience: http://www.legalbeagles.info/forums/...Global-Limited

So the Arrow Global matter, well they lost as is to be expected but the manner of the defeat was pleasing.

The Client had taken out a M&S Charge card in about 1995, a while later the client was offered the chance of a “Flexible reserve account” which in essence is a credit token account which provides an amount of credit where you can draw down up to your credit limit by writing yourself a cheque.

The Client fell into difficulties for whatever reason and M&S werent helpful at all,they chose to sell the debt to Arrow who took the client to Court.

The client had tried to fight the case but realised that assistance was needed, so my firm enters the fray, we knock the case into shape and off to trial we go.

So our view is the agreement is unenforceable per s61(1)(a) CCA, s65(1) CCA and per s127(3) CCA.

We also argue the Default is defective as it only allows 12 days to remedy the breach and also it isnt in the prescribed form, words arent in capitals or afforded more prominence etc.

The Claimants argument, and this is a peach, is that the agreement isnt regulated because its a overdraft?@????

Well a few problems there, firstly its not an overdraft, M&S own website records confirm this, secondly an overdraft needs a current account to be sustained, you cannot have an overdraft without a current account, thirdly, the account couldnt hold a credit balance so therefore it couldnt be an overdraft.

We had a number of other issues to take but that was a flavour.

So we go to trial, the judge rules the agreement is irredeemably unenforceable, helpfully the statement we had said “Just ring us and we will give you credit” thus no signed agreement any way, and the Judge also ruled there was non compliance with s78 and basically Arrow never had a hope.

Note the defendant even recovered their costs! :high5:

We also argued that we should be entitled to recover the costs for the client who was out of pocket. The judge disagreed to begin with but once Tom Brennan made his submissions it was game over, the judge agreed the Claimants conduct was so bad that they should pay the costs. One of Toms points was that they were claiming they didnt need to comply with s78 CCA which was plainly wrong and they knew it was wrong from their own documents but they still maintained the argument anyway.

Of course, and PT will be the first to say this, every account is different, however, there are similarities. :grin:

Originally posted by steveisfound View Post

Other Info:
Last payment Oct 2011

My credit file last checked 24 April 2015 no defaults listed and M&S not even listed - Experian and previously same again Oct 2014 Equifax

Did you default before 2011? A lot of people keep making payments after default so the debts are not SBd but the defaults would have dropped off.

Originally posted by steveisfound View Post

I really don't understand how Arrow can issue a court claim when I haven't had communication from them or M&S, or any default notice etc... They apparently had this assigned to them back in Feb 2013 and now feel like taking me to court?
Any and all help is much appreciated with this... I was shocked and worried when I received the official court letter, but reading this site has helped put things into a calmer place!

You may have received a default notice a long time ago, you should also have received a notice of assignment.

Hopefully reading the quote above will make you feel even calmer. :ranger:

**steveisfound** · 3rd August 2015, 14:42:PM

Re: Court Claim - Arrow Global / Marks & Spencer - 30-7-2015

Originally posted by FlamingParrot View Post

This sounds very similar to the case PT2537 :yo: posted about the other day, where Arrow were arguing an M&S reserve account was apparently an overdraft!

You will be pleased to hear Arrow got beaten to a pulp! :whoo:

I'm quoting his blog post below for your convenience: http://www.legalbeagles.info/forums/...Global-Limited

Note the defendant even recovered their costs! :high5:

Of course, and PT will be the first to say this, every account is different, however, there are similarities. :grin:

Did you default before 2011? A lot of people keep making payments after default so the debts are not SBd but the defaults would have dropped off.

You may have received a default notice a long time ago, you should also have received a notice of assignment.

Hopefully reading the quote above will make you feel even calmer. :ranger:

Thanks for your swift replies!

I was offered an M&S Chargecard in 1997 and subsequently they offered me this Personal Reserve in 1998. Due to a major change in personal circumstances in 2003 I had to contact M&S as I was no longer able to service the debt with them. I entered into an arrangement of paying £20pm, which I adhered to until October 2011 when my circumstances deteriorated. I contacted them and they were going to send an I&E form etc... but I never received anything ever!

I now await the responses to my 2 letters and would really appreciate any comments or guidance on what to do next?

Many thanks

**steveisfound** · 3rd August 2015, 14:48:PM

Re: Court Claim - Arrow Global / Marks &amp; Spencer - 30-7-2015

- - - Updated - - -

Originally posted by nemesis45 View Post

Hi welcome to LB,
Do you know if this account/contract was on an agreement " Regulated under the Consumer Credit Act 1974 or was it treated as an current account with an overdraft facility?
Not on CRA file could indicate that the default was more than 6 years ago, can you remember when the account was last used i.e. a payment into the account? Has there been any other companies chasing this, have Arrow /Reston been in touch before the claim was issued? If so has any payment been made in the last 6 years to any party.

nem

Hi

Thanks for the welcome!

It was a drawdown credit facitlity with a credit limit and cheque book - no bank or current account. M&S set a credit limit and you paid yourself a cheque when you wanted to use the lending facility. Minimum monthly payments on the outstanding balance, with the option to pay off as much or as little (subject to the minimum monthly payment) as you like.

It was defaulted on back in 2003 and a payment arrangement with M&S was adhered to until Oct 2011, when my circumstances deteriorated further.

thanks!

**nemesis45** · 3rd August 2015, 16:11:PM

Re: Court Claim - Arrow Global / Marks &amp; Spencer - 30-7-2015

Originally posted by steveisfound View Post

- - - Updated - - -

Hi

Thanks for the welcome!

It was a drawdown credit facitlity with a credit limit and cheque book - no bank or current account. M&S set a credit limit and you paid yourself a cheque when you wanted to use the lending facility. Minimum monthly payments on the outstanding balance, with the option to pay off as much or as little (subject to the minimum monthly payment) as you like.

It was defaulted on back in 2003 and a payment arrangement with M&S was adhered to until Oct 2011, when my circumstances deteriorated further.

thanks!

OK the arrangement to pay means that the debt is not statute barred as any payment restarts the clock ticking again.

A site team member who works for a firm of solicitors has been involved in beating Arrow in court when it was claimed the these accounts were overdrafts.

It will be very interesting to see what Arrow come up with for a CCA request.

Did you sign any form of agreement when the account was opened.

nem

**jon1965** · 3rd August 2015, 16:29:PM

Re: Court Claim - Arrow Global / Marks & Spencer - 30-7-2015

Yes Nem
Flaming Parrot linked to the thread earlier

This is a link to his blog
https://consumercreditlitigationandd...lobal-limited/

FYI he is a litigation executive with a wealth of experience involving some major consumer credit rulings

Here is a list of some of them
https://consumercreditlitigationandd...ess.com/about/

**steveisfound** · 3rd August 2015, 16:42:PM

Re: Court Claim - Arrow Global / Marks &amp; Spencer - 30-7-2015

Originally posted by nemesis45 View Post

OK the arrangement to pay means that the debt is not statute barred as any payment restarts the clock ticking again.

A site team member who works for a firm of solicitors has been involved in beating Arrow in court when it was claimed the these accounts were overdrafts.

It will be very interesting to see what Arrow come up with for a CCA request.

Did you sign any form of agreement when the account was opened.

nem

Thanks!

Erm..as it was 16/17 years ago .... I cannot honestly remember if I signed anything or it was offered over the phone?

I know I applied and signed for the M&S Chargecard account, and I suppose it was because of how I conducted myself with that account, that I was subsequently offered a personal reserve credit facility?

**nemesis45** · 3rd August 2015, 16:50:PM

Re: Court Claim - Arrow Global / Marks &amp; Spencer - 30-7-2015

Originally posted by steveisfound View Post

Thanks!

Erm..as it was 16/17 years ago .... I cannot honestly remember if I signed anything or it was offered over the phone?

I know I applied and signed for the M&S Chargecard account, and I suppose it was because of how I conducted myself with that account, that I was subsequently offered a personal reserve credit facility?

OK it's a distinct possibility that after all the time elapsed that no agreement now exists, this may lead to claims that this was an OD but I think that is now doomed to failure.
Just wait for the response to the CCA request Steve.

nem

**FlamingParrot** · 3rd August 2015, 19:21:PM

Re: Court Claim - Arrow Global / Marks &amp; Spencer - 30-7-2015

Originally posted by steveisfound View Post

Thanks for your swift replies!

I was offered an M&S Chargecard in 1997 and subsequently they offered me this Personal Reserve in 1998. Due to a major change in personal circumstances in 2003 I had to contact M&S as I was no longer able to service the debt with them. I entered into an arrangement of paying £20pm, which I adhered to until October 2011 when my circumstances deteriorated. I contacted them and they were going to send an I&E form etc... but I never received anything ever!

I now await the responses to my 2 letters and would really appreciate any comments or guidance on what to do next?

Many thanks

Well, they have 14 working days to respond to the CCA request but highly unlikely they will. Seven days for the CPR request, that's the one you need to chase up after the seven days are up. Normally you don't chase the CCA request because non compliance can be used in your defence, however, in this case it may be worth chasing it up to see if they come up with the same argument that it was an overdraft. The CCA request does not apply to an overdraft. For now all you can do is wait till their time's up and maybe read the case I quoted above. :ranger:

The author of the post, [MENTION=551]pt2537[/MENTION] is a very experienced consumer credit litigator who has won numerous cases. :yo: At some point he almost specialised in beating Arrow! :grin: :grin: :grin:

- - - Updated - - -

Originally posted by steveisfound

I know I applied and signed for the M&S Chargecard account, and I suppose it was because of how I conducted myself with that account, that I was subsequently offered a personal reserve credit facility?

What happened to that one? Did you get it replaced with a general purpose credit card a few years later?

**steveisfound** · 12th August 2015, 10:47:AM

Re: Court Claim - Arrow Global / Marks &amp; Spencer - 30-7-2015

Originally posted by FlamingParrot View Post

Well, they have 14 working days to respond to the CCA request but highly unlikely they will. Seven days for the CPR request, that's the one you need to chase up after the seven days are up. Normally you don't chase the CCA request because non compliance can be used in your defence, however, in this case it may be worth chasing it up to see if they come up with the same argument that it was an overdraft. The CCA request does not apply to an overdraft. For now all you can do is wait till their time's up and maybe read the case I quoted above. :ranger:

The author of the post, @pt2537 is a very experienced consumer credit litigator who has won numerous cases. :yo: At some point he almost specialised in beating Arrow! :grin: :grin: :grin:

- - - Updated - - -

What happened to that one? Did you get it replaced with a general purpose credit card a few years later?

Hi

Well I have received a response from Restons which makes no sense and they claim that I do not need the copy of the contract, assignment or demand, as there is sufficient information on the Particulars of Claim for me to understand what the claim relates to...

I have uploaded my original letter and their response and the particulars of claim (with personal details removed).... all help and comments really appreciated!

Attached Files

**nemesis45** · 12th August 2015, 12:09:PM

Re: Court Claim - Arrow Global / Marks &amp; Spencer - 30-7-2015

A standard template letter, however CPR 31.14 does apply until the claim is actually allocated to the small claims track and Restons can be reminded of that and the fact it's non of their ot their clients business what may or may not have been supplied by the original creditor.

The CCA request ( don't chase if the don't comply) has more impact on the situation if the agreement is not produced the debt is unenforceable until they do produce it.

It's the CCA which will be crucial here because of the change from store card to credit card, the correct agreement and terms& conditions must be supplied.

nem

**FlamingParrot** · 12th August 2015, 15:17:PM

Re: Court Claim - Arrow Global / Marks &amp; Spencer - 30-7-2015

Originally posted by steveisfound View Post

Hi

Well I have received a response from Restons which makes no sense and they claim that I do not need the copy of the contract, assignment or demand, as there is sufficient information on the Particulars of Claim for me to understand what the claim relates to...

I have uploaded my original letter and their response and the particulars of claim (with personal details removed).... all help and comments really appreciated!

They are reiterating what you already said in your letter about the MCOL system not allowing attachments therefore no requirement for documents to be attached to the claim, that was the precise reason for your request. It seems to be Restons standard template as can be seen here: http://www.legalbeagles.info/forums/...-for-overdraft

You haven't told us whether this was originally an M&S storecard that was later turned into a general purpose credit card. If so it is very likely to be unenforceable. Although this case doesn't set precedent as such because Santander didn't appeal, it would be highly relevant: http://www.bbc.co.uk/news/business-17670803

Some issuers of store-branded credit cards may be unable to collect debts run up by some of their defaulting card holders, following a court ruling.

Judge Henrietta Manners ruled at Clerkenwell and Shoreditch county court that Santander could not collect a debt of £5,126 on a Harrods card.

She said this was mainly because the store card's terms and conditions were not properly supplied and signed. But its later upgrade to a credit card was also not carried out correctly.
The Harrods card-holder in question, Diana Mayhew, said she never asked for the upgraded card, issued in 2003. She said: "It arrived on my mat completely unsolicited - a new-style card with a Mastercard logo and a welcome letter. "If you send someone a card marked 'Harrods, go spend', the temptation is massive to use it. "I would not have spent £5,000 on that card if I had not been given it, I certainly would not have applied for it."

Fresh agreement required

Santander argued in court that GE Capital, which ran the Harrods store card business at the time, had not needed to send new terms and conditions for the newly issued credit card.

But the judge disagreed, saying that even though Diana Mayhew had activated the unsolicited credit card, regulation 7 of the Consumer Credit (Agreements) Regulations of 1983 still required the bank to supply fresh terms and conditions.

Implications for M&S

Santander's defeat could affect food and clothes retailer Marks & Spencer .

Its card business, which is a wholly owned subsidiary of HSBC bank, had instigated a wholesale conversion of 2.6 million of its store cards to credit cards in September 2003.
By October that year, the OFT had taken a dim view of this as well.

Marks & Spencer, like GE Capital, had been telling its store-cardholders that their cards would be upgraded to credit cards automatically.

M&S was forced to step back, and to make clear to customers that if they wanted to keep their store card, they could simply ignore the new bit of plastic that had fallen, uninvited, through their letter box.

On the specific point at issue in Diana Mayhew's case, M&S declined to say whether it had supplied all its cardholders with updated terms and conditions at the time of the upgrade.

This thread is also worth looking at: http://www.legalbeagles.info/forums/...card-what-next :thumb:

**steveisfound** · 14th August 2015, 10:09:AM

Re: Court Claim - Arrow Global / Marks &amp; Spencer - 30-7-2015

Originally posted by FlamingParrot View Post

They are reiterating what you already said in your letter about the MCOL system not allowing attachments therefore no requirement for documents to be attached to the claim, that was the precise reason for your request. It seems to be Restons standard template as can be seen here: http://www.legalbeagles.info/forums/...-for-overdraft

You haven't told us whether this was originally an M&S storecard that was later turned into a general purpose credit card. If so it is very likely to be unenforceable. Although this case doesn't set precedent as such because Santander didn't appeal, it would be highly relevant: http://www.bbc.co.uk/news/business-17670803

This thread is also worth looking at: http://www.legalbeagles.info/forums/...card-what-next :thumb:

Hi

Thanks for this... it wasn't a store card turned into a credit card. M&S card is different to the Personal Reserve account -
It was a drawdown credit facitlity with a credit limit and cheque book - no bank or current account. M&S set a credit limit and you paid yourself a cheque when you wanted to use the lending facility. Minimum monthly payments on the outstanding balance - like a credit card account, with the option to pay off as much or as little (subject to the minimum monthly payment) as you like.

I have received a response today from Arrow together with my £1 postal order, who say it has arisen from an overdraft facility and therefore doesn' t fall under the CCA request?

I have uploaded the document and as they are not going to provide me with any of the information, proof or documents.. I don't know what to do to enter my defense?

Attached Files

Arrow Global Response001adj.jpg (58.9 KB, 1 view)

**nemesis45** · 14th August 2015, 10:15:AM

Re: Court Claim - Arrow Global / Marks &amp; Spencer - 30-7-2015

Originally posted by nemesis45 View Post

A standard template letter, however CPR 31.14 does apply until the claim is actually allocated to the small claims track and Restons can be reminded of that and the fact it's non of their ot their clients business what may or may not have been supplied by the original creditor.

The CCA request ( don't chase if the don't comply) has more impact on the situation if the agreement is not produced the debt is unenforceable until they do produce it.

It's the CCA which will be crucial here because of the change from store card to credit card, the correct agreement and terms& conditions must be supplied.

nem

A contract is mentioned in the Particulars of Claim so it will have to be disclosed 14 days prior to a hearing.

I personally would send a written request to M&S asking for a copy of the " contract for the account."

nem

Court Claim - Arrow Global / Marks & Spencer - 30-7-2015