Viscount Stair vs Amex

[Viscount Stair]

Hi all! I am very new here, so allow me to introduce myself:

 

Ironically, I am a lawyer (fallen on hard times through ill-health and "redundancy") but Consumer Credit is not my specialism and, besides, I'm too closely involved to think critically. I do hope - in time - to be able to repay any help in kind.

 

This is the farthest advanced of several battles I will have to fight in coming months.

 

I made my CCA and Data Protection Act requests to Amex - for a Blue Card taken out in 1998 - and received an imposing special delivery package this morning with 7 years worth of statements and what purports to be a true copy of my executed agreement but looks to me like a "reconstruction".

 

I know this will have been done to death but there is so much good information here I can't find the bit I need right now.

 

What are the top tips for identifying "reconstructions"?

 

A quick scan does show that the interest rates and cash back rates are both wrong. The rates are the ones that apply now, not the ones that applied in 1998 - hmmmmm.

 

Does that tend to confirm my suspicions?

 

What else should I be looking for?

 

I will try to post scans later.

 

Thanks in advance for any help CAGers can provide.

[Mr lex]

Hi VC and welcome,

 

From the sounds of it, it is unlikely to be enforcable. We can have a look when you post it. Remember to remove any personal details first

 

Lex

[banker_rhymes_with]

Hello VC!

 

As Mr Lex has already said, if you can Scan and post it here, then many eyes can look and see what may be wrong with it.

 

But note the "many eyes" bit, as these Forums are also read by the bankers, so take care to remove your details, and/or throw in a few Red Herrings to keep them in the dark...like ticking a Married box if you are single etc.

 

Avoid changing anything that will confuse CAGGERS trying to help, but by all means edit anything that is not vital that mainly identifies you.

 

Slight changes to dates, marital status, etc, I think you will get the drift!

 

Cheers,

BRW

[citizenB]

Welcome to CAG.

[Viscount Stair]

Thanks for making me feel welcome!

 

Not been able to scan the "true" copy yet, but a third (provable) inaccuracy has occurred to me.

 

My DPA "disclosure" has arrived too - partial in both senses of the word. Who'd have thought that a decade of business with Amex generated so little information?

 

I'll be back soon to take up those offers of help.

[Viscount Stair]

Not been on top of things for a bit - job applications and even interviews (huzzah!) have kept me busy and unable to sort out whatever is wrong with the scanner.

 

In the meantime, I have had an interesting offer from Amex to waive the (unenforceable, as far as I know) collection fee and write off an apparently arbitrarily calculated chunk of the debt in return for early settlement. (I won't give the amount or even the percentage because it's curiously precise and I wouldn't want to blow my cover).

 

Is this par for the course when dealing with Amex or is it a sign that they know they could not enforce in court and want to get whatever they can by other means?

 

Just wondering aloud.

[banker_rhymes_with]

Hello VS!

 

Just wondering aloud.

 

No problem, that is what CAG is about. The silly question is the one you don't ask.

 

Tread carefully with any form of discounted offer from a banker, and especially Amex.

 

Many bankers throw out offers like confetti and, in many cases, they are not at all sincere. The vast majority are just blunt tricks to try and get people to Telephone them, the larger the discount, the more they hope people will knee jerk into picking up the Telephone.

 

You can see their logic: if someone is interested in Paying 20%-40% of the alleged Debt, if nothing else, it tells them they can and want to Pay 20%-40% of the alleged Debt. That is probably the whole purpose of the offer. It may, for example, make the Debt more sellable to a DCA, as they can say the Debtor has indicated a willingness and desire to Pay £x, thus making the Debt much more attractive when it goes up for tender or auction sale in DCA Land.

 

However, whilst some offers are a little more sincere, most of these real offers often carry a nasty little sting in the tail. These are the ones that can be called Short Settlements, i.e. they offer a lump sum discount, but neglect to point out they can still chase you for the balance.

 

What you need, assuming you have the funds available to pay any offer, is a binding Full and Final Offer, one that includes a written undertaking from the banker concerned that when you make the Payment, that is the end of the matter for good, no strings attached whatsoever. You'd be wise to include other specific clauses such as the removal of any adverse Data, along with an undertaking that they will desist from ever mentioning the alleged Account ever again, to anyone.

 

Get all of that in Writing before you Pay them a penny, and make sure the F&F Offer Letter is signed by a real banker, not one of the facsimile signatures and invented names you see on many banking letters. For example, one bank in particular seems to use a number of names that do not appear to relate to real people. Amex may do the same, so make sure any Signature is signed in ink, by hand, and by someone with the appropriate level of authority within their organisation.

 

I think you can now see that any offer has to be taken with a pinch of salt, and it may not mean very much. By that, I mean it may not be a reliable indicator of the strength or weakness of their position.

 

Indeed, 97 times out of 100, it's just a vehicle being used to convey other less palatable intentions.

 

Cheers,

BRW

[Mr lex]

Great advise from B.R.W.......

 

.....and never a truer word spoken.

 

Lex

[Viscount Stair]

Thanks for the advice and for the benefit of your experience.

 

Now, if I can get that scanner sorted ...

[Viscount Stair]

Now I'm just confused, which - I suspect - is the intention. I suspect that the other intention was that I would be intimidated but funnily enough it hasn't worked.

 

While my s78 and SAR were pending, Newman briefly appeared on the scene and disappeared one reply from me later, then AIC appeared and disappeared before I received the letter above that informed me that Amex wanted to work with me directly.

 

Now AIC have re-appeared with a copy of my title deeds and a letter making copious use of the conditional and the subjunctive.

 

I had gleaned enough from elsewhere around here to form a view on how best to proceed (ie proper copy, not a reconstruction; alternatively, go and boil your head) before this and I had also gleaned enough not to be too surprised by this sort of threat. Am I being naïf to take it as the sabre rattling I think it is?

 

That said, I'd better reply pointing them in the direction of the OFT Guidelines and I'd also better get round to telling Amex in which bodily orifice they can insert their conjectured reconstruction!

 

PS Another job interview today and another one again on Monday - wish me luck!

[citizenB]

Now I'm just confused, which - I suspect - is the intention. I suspect that the other intention was that I would be intimidated but funnily enough it hasn't worked.

 

While my s78 and S.A.R - (Subject Access Request) were pending, Newman briefly appeared on the scene and disappeared one reply from me later, then AIC appeared and disappeared before I received the letter above that informed me that Amex wanted to work with me directly.

 

Now AIC have re-appeared with a copy of my title deeds and a letter making copious use of the conditional and the subjunctive.

 

I had gleaned enough from elsewhere around here to form a view on how best to proceed (ie proper copy, not a reconstruction; alternatively, go and boil your head) before this and I had also gleaned enough not to be too surprised by this sort of threat. Am I being naïf to take it as the sabre rattling I think it is?

 

That said, I'd better reply pointing them in the direction of the OFT Guidelines and I'd also better get round to telling Amex in which bodily orifice they can insert their conjectured reconstruction!

 

PS Another job interview today and another one again on Monday - wish me luck!

 

Hmmm, advising people they have a copy of their title deeds is an MBNA trick. By all accounts anyone can get a copy if they apply to land registry. How serious a threat this is, I dont know, sorry.

 

Good luck with your job interviews:)

[Viscount Stair]

Thanks, CB

 

I took advantage of my blood being up to put together a little billy doo to AIC, along the following lines (I have removed case specific info and paraphrased a bit for camouflage):

 

Allied International Credit (UK) Ltd

Anderston House

389 Argyle Street

Glasgow

G2 8LR

 

For the attention of [ ]

 

 

Dear Sirs

 

I am not sure why you are writing to me, since your clients told me they had taken the file back from you.

 

It looks like your clients are breaking the OFT Debt Collection Guidelines.

 

Your clients have been told already that the referral fee is a pile of pants and I've already referred them to the Unfair Terms Regs and the OFT guidelines.

 

Your clients haven't complied properly with a s78 request, so unless or until they do, they can't actually enforce the agreement.

 

If your clients do manage to work out what an illiterately drafted sentence with three conditionals and two subjunctives actually means and are daft enough to waste money bringing duff proceedings, then I'll ask for costs against them and they will deserve it.

 

Your threats are idle and you are lying through your teeth, which is also against OFT guidelines.

 

Yours ever so truly indeed

 

Viscount Stair

 

PS Actually, I've paraphrased it quite a lot but that's what I really wanted to get across.

 

PPS I can't decide whether or not to put a big caption on my real letter reading "WARNING - YOUR CONSUMER CREDIT ACT LICENCE IS AT RISK IF YOU CONTINUE TO FLOUT OFT GUIDELINES". Probably not, because 1) it would be childish and 2) I don't think anything will persuade the OFT to take away any of these jokers' licences - happy though I would be to be proved wrong about that!

[Monty2007]

Dear Viscount Stair

 

I have also been through "the mill" with Amex. Was defaulted for two cards and passed to RMA resolve (part of NCO Europe) who called me day and night and caused considerable distress to my family and I. I paid them 12,000 over the next 18 months and then discovered they were adding charges (never sent me a statement of affairs), then I discovered GAG.

 

I CCA'd Amex and RMA and found that they had no agreement for one card and a non-enforcable agreement for the second. RMA went crazy and told me I would be put in prison (no joking) and then that they would lose their collection bonus from Amex (as if I care!!). I was then passed to Brachers and they seemed to be going to litigate but as soon as I reminded them of their obligations under the 1974 Consumer Credit Act they passed the accounts back to Amex. As predicted by people on CAG I was then passed to several DCA's and just went through the routine of sending CCA requests. They all passed the accounts back.

 

I SAR Amex every few months to find out what they have been up to and they have not made any contact now for six months.

[Viscount Stair]

It appears that I am on the Merry Go Round. Newman having given up, then AIC, I have now had a letter from Moorcroft. Breach of 2.6d and 2.6e, anyone?

 

Interestingly, the collection fee now seems to have disappeared from the amount due but I need to check whether it tallies in other respects.

 

Based on the debate on the jumbo CCA thread, I may have to take a different tack in relation to the s78 point, on the basis that current Ts and Cs are enough to satisfy that. However, unless or until they produce the agreement, I'm still fairly confident it will be unenforceable given its age.

 

I've also dug out my Default Notice and realised that it is duff: it specifies 14 days from the date of the notice, not 14 days from the date of service. (It was followed by a Termination Notice, so that cannot now be rectified.)

 

NB: That is a very good point, I had not even thought of looking for it until I read about it here recently.

 

I think I understand the effect of a defective DN in relation to a loan but I am very fuzzy about it in relation to a credit card.

 

Would I be right in thinking that the most Amex can now claim (even if they can produce a compliant agreement) is the amount of the one minimum payment that had been missed when the agreement was terminated?

[banker_rhymes_with]

Hello VS!

 

Would I be right in thinking that the most Amex can now claim (even if they can produce a compliant agreement) is the amount of the one minimum payment that had been missed when the agreement was terminated?

 

Yes, that would appear to be the case.

 

They've Terminated, and elected to do that without first organising a valid Default Notice (one that was issued correctly that you then failed to remedy).

 

Without a valid Default Notice, they cannot enjoy the benefits of s87.

 

Once Terminated, they cannot now issue another Default Notice. This post Today by Surfaceagentx20 may be useful to confirm this:

 

Post x25 Thread Default Notice Re-Issue

 

Re: Default Notice Re-Issue

 

No worries GO'S.

If a default notice is prepared and delivered so as to create a situation where less than 14 days is expressed to be available for the debtor to meet the requirements of the DN, the DN is ineffective. The DN is a powerful tool in the creditor's armoury though it was created within a statutory framework designed to provide consumer protection. As such the DN must pass the requirements of section 88 Consumer Credit Act 1974.

 

The period of 14 days is an express requirement of section 88(2). Once upon a time it said not less than 7 days was required. Then in late 2006 Parliament decided 7 days was insufficient and decided that the period of time should be not less than 14 days. If in 2006 Parliament had thought that 13 days or less was required, Parliament would have said so. When Parliament fixed the period as one which 'must not less than 14 days' that is what it meant and it is impossible to imagine in law that a DN is effective where the period is less than 14 days.

 

I am afraid this smacks of an example of a DJ's ignorance, failure to grasp the law or simply not being directed to the specifics of the statute. He might be on the ball when it comes to Landlord and Tenant work and if that were so I doubt he would, for example say a Landlord's section 21 Housing Act 1988 notice was effective where 6 weeks rather than two calendar months notice was given to the tenant.

 

Wherever a DJ is leaning towards declaring a DN effective where it plainly is not, let him know (as politely and deferentially as humanly possible) that if he carries on leaning that way, you will require him to set out his reasoning as part of his judgment and that you want him to spell out his reasoning so that it forms part of the record for appeal purposes. That should sharpen him up a bit.

 

x20

 

Without s87, they cannot demand the early repayment of a sum that was otherwise not due for Payment prior to Termination.

 

But, provided they do have a compliant Agreement (original copy, properly executed), then they should be able to ask for any sum that was already due before Termination, such as any valid Arrears.

 

That's just the one missed Payment in your case I think.

 

If the main Balance was not due - i.e. because the live Agreement would've allowed you to Pay off that Balance stretching out into the future via Monthly Payments - then, without following s87/s88, they cannot now ask for early repayment of that sum!

 

Ever.

 

Search out all Posts on this by Surfaceagentx20, as he has made some perfect Posts that have summarised all of this very clearly.

 

Cheers,

BRW

[Viscount Stair]

That's very useful indeed - thanks!

[Viscount Stair]

Follow up:

 

Would I also be right in thinking that it does not matter that, by the time they did terminate, more than the 14 days had elapsed?

[banker_rhymes_with]

Hello VS!

 

Would I also be right in thinking that it does not matter that, by the time they did terminate, more than the 14 days had elapsed?

 

I can't see that has any bearing. It's the timescale they state within the Default Notice that is key, they must allow 14 Clear Days from the Date of Service.

 

Timescale from the end of the Default Notice to Termination has no fixed length, and could take many Years in theory.

 

That's why Termination is the next Key issue you do need to see, because the grey area is the gap between Default Notice and Termination.

 

Until they Terminate, they still have the option, I think, of issuing a valid Default Notice.

 

But, once you get either a Letter saying they have Terminated, or, a demand for early repayment of a sum otherwise not due (such as the whole Balance), then that is the same thing as Termination.

 

The live Agreement allows you to Pay off a Balance stretching out into the future. It also requires the Creditor to allow you that entitlement.

 

Whereas a Terminated Agreement does not. If the Creditor thinks they can ask for a sum only otherwise Payable in the future, then it is clear they regard the Agreement as dead in the water, and all bets are off.

 

Demanding early repayment is clear confirmation that the Creditor thinks the Agreement you once may've had, is over.

 

It may be unlawful Termination, but it is still Termination nevertheless.

 

Cheers,

BRW

[Viscount Stair]

Thanks again.

[Viscount Stair]

Does anyone have any thoughts on this wording for the relevant passage of a letter?

 

It has also now come to my attention that the Default Notice dated 19 August 2008 did not comply with the requirements of section 88(2) of the Consumer Credit Act 1974, as amended by section 14(1) of the Consumer Credit Act 2006 or with those of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, as amended by the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2006.

 

Having purported to terminate the agreement on 16 September 2008 without having first served a valid Default Notice as required by section 87(1)(a) of the Consumer Credit Act 1974, your clients have unlawfully repudiated the agreement.

 

Having done so, your clients are no longer entitled to serve a new Default Notice.

 

Moreover, having failed first to serve a valid Default Notice as required by section 87(1)(b), your clients are not entitled to demand earlier payment of any sum.

 

The cumulative effect of your clients' failure to serve a valid Default Notice before unlawfully repudiating the agreement is that they are no longer entitled to claim any amount that was not already due for payment prior to the unlawful repudiation of the agreement.

Edited December 12, 2008 by Viscount Stair
Correcting sub-section

[banker_rhymes_with]

Hello VC!

 

Looks fine to me.

 

I dare say the other side won't like it!

 

But that's tough.

 

Cheers,

BRW

[Viscount Stair]

Thanks again. I have started to follow your saga BRW and wish you all the best!

[Viscount Stair]

Amusing little side incident yesterday:

 

Got something in the mail from AIC yesterday, presumably in response to the billy doo I sent them a while back. It was a compliments slip on which was scrawled "Copy Agreement as requested" and a copy of a microfiche of a screen grab from the Amex computer.

 

Is that the best you can come up with guys???

 

It cheered me up on a day when I was feeling really down about Egg and that's even before I think about First Direct.

[Viscount Stair]

I wrote to Moorcroft but they are probably still reading the letter, if they are going to bother trying.

 

This morning, I received a letter from H L Legal in association of Sampson & Co on behalf of AIC.

 

I think it is one of their 75p specials! The HL Legal website is quite enlightening. HL Legal if you are ever interested.

 

So, Amex, how do you propose trying to justify an alleged collection charge of over £1600 for activity that is costing your munchkins quite so little?

 

Also, Amex, how are you going to explain away two notices of intended litigation by different DCAs in the same week? Would you like a copy of the OFT Guidelines instead of a Christmas card?

 

AIC don't know the good news about the duff DN yet. I am going to enjoy telling them.

[banker_rhymes_with]

Hello VC!

 

AIC don't know the good news about the duff DN yet. I am going to enjoy telling them.

 

So long as you are sure Amex did Terminate the Agreement after that Default Notice, then by all means break the news to both AIC and anyone else.

 

Perhaps send them the news in a Christmas Card?

 

 

Cheers,

BRW