uptoeyeballs v American Express credit card CCA

[uptoeyeballs]

Anyone counting the threads I've started will understand why I chose the name "uptoeyeballs"!

 

In response to my s77/78 request I got this back.

 

It's from 1996 and looks rubbish to me. I don't rememeber seeing the "Conditions", so these must have been sent with the card, maybe.

 

http://i655.photobucket.com/albums/uu273/uptoeyeballs/X_AMEX_CARDA_1.jpg

http://i655.photobucket.com/albums/uu273/uptoeyeballs/AMEX_CARDA_2.jpg

http://i655.photobucket.com/albums/uu273/uptoeyeballs/AMEX_CARDA_3.jpg

[Desperate Daniella]

Hi,

 

I'll have a proper look at this later. On the first page I think it refers to the Terms and Conditions overleaf. However on my application form the conditions they sent clearly can't have been on the back.

 

Have a look at other Amex threads and see if you can find another one with the identical application form to yours. It took me months until one came up, but there have been a lot more Amex threads in recent months. Compare what those applications say they had on the back, and see how the case is going.

 

My three issues with them are that the application form didn't have the conditions on the back, the Default Notice is invalid (and yours probably is too), and the securitisation issue. Do look at the thread on that too.

 

DD

[uptoeyeballs]

Must be time for a SAR. I don't have the default notice and now I'm gradulally working out what happened with this one.

 

Still waiting for all the information, but it looks like this:

- Claim admitted with payment offer

- Transferred to local court

- Court agreed amount

- Made no payments as expected a payment book or something and no contact was made by Amex (know better now!)

- Interim charging order not defended

- Final charging order

- Suspended attachment of earnings

 

Been making payments to Brachers since.

 

The CCA is duff, but this is a lot to undo and from my reading, set asides seem to be 50/50.

 

Does anyone know if a claim under s142 is the way to go?

[r&b]

Anyone counting the threads I've started will understand why I chose the name "uptoeyeballs"!

 

believe me you re not alone.....lol

 

Must be time for a SAR. I don't have the default notice and now I'm gradulally working out what happened with this one.

 

Still waiting for all the information, but it looks like this:

- Claim admitted with payment offer

- Transferred to local court

- Court agreed amount

- Made no payments as expected a payment book or something and no contact was made by Amex (know better now!)

- Interim charging order not defended

- Final charging order

- Suspended attachment of earnings

 

Been making payments to Brachers since.

 

The CCA is duff, but this is a lot to undo and from my reading, set asides seem to be 50/50.

 

Does anyone know if a claim under s142 is the way to go?

 

i have recently lost 2 set asides (same hearing) on the basis that the CPR offers no recourse when a judgment has been made under admission. ive been trying to find the correct course of action as opposed to setting aside, but so far the best i have comes from the other sides' barristers in these cases which is, that the admission should be sought to be withdrawn and an appeal of the original judgment or a fresh action attacking the original judgment should be commenced.

i am not trying to deter you from an attempt to set aside, but just to be careful if they spot this 'loophole', most it appears do not.

also, i wonder if a claim under s142 is possible given the fact of them having a current judgment?

[uptoeyeballs]

Sent them a s77/78 default and got back what seems to be the standard letter asking ME to tell THEM what is wrong with the agreement. What agreement?

 

SAR sent.

[uptoeyeballs]

Well, our good friends are going for an attachment of earnings.

 

I guess this is my opportunity to go for it!

[uptoeyeballs]

i have recently lost 2 set asides (same hearing) on the basis that the CPR offers no recourse when a judgment has been made under admission. ive been trying to find the correct course of action as opposed to setting aside, but so far the best i have comes from the other sides' barristers in these cases which is, that the admission should be sought to be withdrawn and an appeal of the original judgment or a fresh action attacking the original judgment should be commenced.

 

This may be mad, but in filing an admission surely you're only acknowledging you owe the money. Does it follow that this entitles enforcement where there is no enforcable agreement?

[uptoeyeballs]

Well, here is what I've come up with. Taken mostly from PT's work (thanks!) and rehashed to suit.

 

Do I have a hope?

 

uteb

 

 

In the [] County Court

Claim number

 

 

 

Between

 

 

 

American Express Europe Limited - Claimant

 

 

 

and

 

 

Uptoeyeballs - Defendant

 

 

 

 

 

1. The Defendant respectfully asks that the court allow the Defendant to withdraw his admission and for the judgment entered on [] at [] County Court to be set aside.
   

 

 

 

1. The defendant being a layman and litigant in person and without the knowledge or assistance of legal advice while under a debt management plan wrongly tried to negotiate with the claimant albeit in error and ignorance of the court procedures.
    
    
   
2. The advice from a debt management company leading to the Defendant submitting an admission was flawed.
    
    
   
3. As a result of the recent enforcement by the Claimant the Defendant sought and received guidance on his case and believes that there is a real prospect of success in defending the action for the following reasons:
    
    
    
   


1. The Defendant was of the belief that an organisation of the substance and sophistication of the Claimant would not mistakenly or speculatively bring such action where the court would not be entitled to make an enforcement order by virtue of s127 of the Consumer Credit Act.
    
    
   
2. The Defendant requested that the Claimant supply a copy of the Consumer Credit Agreement which the claim was based upon. In response to this request a document purporting to be the agreement failed to satisfy the requirements of the Consumer Credit Act 1974 or the requirements of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).
    
    
   
3. The Claimant added a disproportionate sum to the claim in respect of "collection charges" notwithstanding that there is no agreement to provide for this.
    
    
   

 

[*]Based upon these facts and given the large body of case law in respect of Consumer Credit Agreements the defendant is of the belief that he has a real prospect of successfully defending a claim based on these facts and respectfully asks that judgement be set aside.

 

 

 

 

Statement of Truth

 

 

 

 

I, believe the above statement to be true and factual

 

 

 

 

Signed ……….................…………

 

 

 

 

Date .................................................

IN THE [] COUNTY COURT

 

 

Claim No:

 

 

 

BETWEEN:

 

 

American Express Europe Limited

 

 

Claimant

and

 

 

Uptoeyeballs

 

 

Defendant

draft/ORDER

 

 

UPON reading the Defendant's application notice dated […]

 

 

IT IS ORDERED THAT:

 

• The judgement dated [ ] be set aside.
  
• The Defendant do file and serve his Defence to the claim by no later than [ ].
  
• The Claimant do have permission to file and serve a Reply by [ ].
  

Edited December 28, 2009 by uptoeyeballs
pasted correct defence

[paulwlton]

It may be better to bring separate proceedings for a deceleration.

[uptoeyeballs]

It may be better to bring separate proceedings for a deceleration.

 

Hi Paul,

 

Thanks for looking in!

 

I've been torn between the 2 routes. I have read in several places that bringing separate proceedings is a possibly better route for a set adside, but cannot find an example where this has been successful.

 

I'm strugling how to proceed with a new action. All I can think of are:

- Declaration under s.142, but I'm uncertain if this can be used this far down the road

- Just a set aside with similar arguments to the defence. Would achieve the 1st objective and may overcome the admission issue

- Something like an order to procude the documents else set aside plus claim for all payments made since judgment.

 

uteb

[paulwlton]

Hi Paul,

 

Thanks for looking in!

 

I've been torn between the 2 routes. I have read in several places that bringing separate proceedings is a possibly better route for a set adside, but cannot find an example where this has been successful.

 

I'm strugling how to proceed with a new action. All I can think of are:

- Declaration under s.142, but I'm uncertain if this can be used this far down the road

- Just a set aside with similar arguments to the defence. Would achieve the 1st objective and may overcome the admission issue

- Something like an order to procude the documents else set aside plus claim for all payments made since judgment.

 

uteb

 

You wouldn't be bringing separate proceedings for set aside it would be for a deceleration pursuant to section 142.

 

There's no bar on bringing free standing proceedings for a deceleration, this is backed up by the appeal court.

 

I'll post/email you relevant information later.

 

Paul

[uptoeyeballs]

You wouldn't be bringing separate proceedings for set aside it would be for a deceleration pursuant to section 142.

 

There's no bar on bringing free standing proceedings for a deceleration, this is backed up by the appeal court.

 

I'll post/email you relevant information later.

 

Paul

 

Thanks Paul.

[Liz Southern]

Do I have a hope? There's always hope, but I suggest you amend slightly.

 

 

1. The defendant being a layman and litigant in person and without the knowledge or assistance of legal advice while under a debt management plan naively tried to negotiate with the claimant, in error and ignorance of the court procedures.
    
    
   
2. The Defendant took advice from a debt management company which led to the Defendant submitting his/her admission. The Defendant has since then taken legal advice and contends that his rights were compromised by previous unprofessional advice.
    
    
   
3. As a result of the recent enforcement by the Claimant the Defendant sought and received legal advice on his case and believes that he will be able to plead a Defence with merit and a real prospect of success for the following reasons:
    
    
    
   


1. The Defendant was of the belief that an organisation of the substance and sophistication of the Claimant would not mistakenly or speculatively bring such action where the court would not be entitled to make an enforcement order by virtue of s127 of the Consumer Credit Act.
    
    
   
2. The Defendant requested that the Claimant supply a copy of the Consumer Credit Agreement which the claim was based upon. In response to this request a document purporting to be the agreement failed to satisfy the requirements of the Consumer Credit Act 1974 or the requirements of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).
    
    
   
3. The Claimant added a disproportionate sum to the claim in respect of "collection charges" notwithstanding that there is no agreement to provide for this. The Defendant therefore wishes to pursue a counterclaim in respect of charges due to an unfair business relationship and extortionate credit bargain.
   

[*]Based upon these facts and given the large body of case law [you will have to quote some] in respect of Consumer Credit Agreements the defendant is of the belief that he has a real prospect of successfully defending a claim based on these facts and respectfully asks that judgement be set aside.

Regards

Liz Southern

[uptoeyeballs]

Thanks Liz. That's much better.

 

I'm also researching Paul's suggestion at the moment as if I can go for a stand alone claim it will be nice and clean with no need to go into any of this defence.

 

So far it looks as though it could work in that I have a duff agreement (as posted earlier) and Amex in letter have said that IS the agreement.

 

Going in using s127 should be just:

- Amex say this is the agreement

- CCA 1974 says this

- Declare rights of parties

 

uteb.

[paulwlton]

The court of Appeal's take on the matter.

 

I think i've got the application for challenging the matter somewhere.

 

PW

 

 

35. In our judgment, the interests of the administration of justice clearly demand that the issue raised by paragraphs 3-5

of the draft defence be tried as a discrete issue at an early date. It would not be in anybody's interests to leave the

question whether this credit agreement is enforceable at all to hang about in the air until such time as the claimants elect

to enforce their possession order. Mrs Turner is at present only paying interest on the loan. If she stopped paying

altogether, the claimants would no doubt wish to bring the situation to a head by seeking to enforce their order. It would

be very much better if the trial of the issues was now organised in an orderly manner, so that there will be no question

of any need for an extensive hearing on the "extortionate credit bargain" issue if the "unenforceable credit agreement"

point turns out to be a good one. Any injustice that might otherwise be suffered by the claimants due to the dilatoriness

of the defendant and her solicitors can be mitigated by imposing the condition we have suggested.

[uptoeyeballs]

Thanks Paul.

 

So plan B would look like this, I think! (Borrowing from Mrs Paul)

 

 

1. CPR Part 8 applies to this claim.
    
   
2. The Claimant requests that the court determine the rights of the parties’ pursuant to section 142 Consumer Credit Act 1974.
    
    
   
3. The Defendant has provided the Claimant with a document purporting to be a regulated agreement for the purposes of section 8 of the Consumer Credit Act 1974. Attached as exhibit A.
    
    
   
4. The Defendant has also provided the Claimant with a document purporting to be the terms of the agreement. Attached as exhibit B.
    
    
   
5. Section 61 of the Consumer Credit Act 1974 provides that: “
   (1) A regulated agreement is not properly executed unless
   (a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and
   (b) the document embodies all the terms of the agreement, other than implied terms ”
    
   
6. The prescribed terms for a rolling credit agreement are:
   - Credit limit
   - Repayments
   - Rate of interest
    
   
7. The Claimant contends that within the signature document that the Defendant purports to be an executed agreement:
   - There are no prescribed terms
   - Has not been executed by the Defendant
   - The document does not embody all the terms of the agreement in that exhibit B is clearly not part of or connected with exhibit A
    
    
   
8. As it is clear that the agreement does not meet the requirements of section 61 the Claimant respectfully requests that the court determine the rights of the parties’ pursuant to section 142 Consumer Credit Act 1974.
   

Edited December 31, 2009 by uptoeyeballs

[uptoeyeballs]

Here we go then. N208 form attached (slightly improved from above).

 

n208.pdf

[uptoeyeballs]

Fee is £150?

[Liz Southern]

Fee is £150?

Unfortunately any claimant must pay a court fee. If you are the Defendant you don't pay a fee. This would include Amex taking out a claim against you (N1) and you defending it.

 

If you are a Defendant making an application for a judge to make an Order which doesn't need a hearing it's £40.00.

 

A Set Aside application to a Statutory Demand is free (the accompanying Affidavit is also sworn for free at the Court office counter).

 

If you wanted to file and serve an amended defence or Further & Better Particulars you could try writing to the judge by normal letter. Sometimes the judge will make an Order by this method, but sometimes the Judge will write back, saying the court cannot enter into correspondence and please submit the correct application form, with a fee.

 

Regards

Liz Southern

[uptoeyeballs]

Thanks Liz.

 

Amex already have an action against me, but my feeling is I'm better starting a new action for determination under s142.

 

Can't decide on a N1 or N208 though.

 

Can anyone give a view?

 

Thanks.

 

uteb

[Liz Southern]

Hi Peeps

 

Look, I do apologise because I'm really busy and I haven't the time to look back through all the thread, but can you tell me why you're thinking of a Part 8 -that's N208 - at all? Or taking out a fresh claim, rather than putting in a substantial defence on facts to the case Amex have against you?

 

If you take our your own claim, you will end up paying court fees when there is no need. There are no fees payable when you are defending a claim.

 

Could you tell me where you have posted Amex's particulars of claim on this site, and I will have a look at it.

 

The reason I'm wary about you using N208 is because judges are resistant to laypeople trying to be lawyers, and unless you really know what you're doing, and can answer a judge in the courtroom as to why you chose N208, over N1, and primarily over just defending Amex's claim, I would steer clear of N208. The last thing you want to do is tick off the judge, so that he adjoins the case for you to get a solicitor - which will incur costs for you.

 

The reason I would like to look at Amex's claim form is because if you have what is called a "substantive" or substantial contentious dispute of fact, it can be best defended by keeping it simple.

 

Regards

Liz Southern:)

[uptoeyeballs]

Hi Liz. Thanks for looking in again.

 

The POC goes like this:

"Money due for CreditCard services supplied ([account number]) to and at the Defendant's request as detailed in monthly statements rendered culminating [date]

 

Sum due at [date] xxxxxx

Add file referral charge xxxxxxxx

Less credit 0.00

 

Statutory Interest from

[date] to date at 8% per annum

(xxxx X xxxx per day currently) xxxxxxxxxx

 

Add subsequent debts 0.00

 

The claimant claims xxxxxxxxxxxx

 

Plus continuing Statutory Interest at £XXXX per day until

Judgment or sooner payment persuant to section 69 of the

County Court Act 1984.

 

Costs"

 

The reason for going for a new action is that the claim was admitted and that seems to be the correct way to make a set aside possible. Also, this claim dates back to the end of 2005.

 

The N208 seemed the way to go as I should not anticipate Amex trying to defend this as it is balck and white to me.

 

Thanks!

 

uteb

[banker_rhymes_with]

Hello Uptoeyeballs!

 

They can't claim s69 County Courts Act 1984 8% interest if the Claim is in relation to a Regulated Agreement...here's why:

 

The County Courts (Interest on Judgment Debts) Order 1991

 

Cheers,

BRW

[uptoeyeballs]

Hello Uptoeyeballs!

 

They can't claim s69 County Courts Act 1984 8% interest if the Claim is in relation to a Regulated Agreement...here's why:

 

The County Courts (Interest on Judgment Debts) Order 1991

 

Cheers,

BRW

 

 

Thanks BRW - Something more for the pot!

 

"(3) Interest shall not be payable under this Order where the relevant judgment—

(a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974[2] ;"

Interestingly, they don't mention a regulated agreement or the Consumer Credit Act in their POC.... Probably doesn't apply to them.

[uptoeyeballs]

Hi to anyone looking in!

 

I feel a need to do something about this soon as I fear the longer I leave it the more difficult it will be for me.

 

How's this for Plan C to be submitted on an N1.....

 

Thanks!

 

uteb

 

 

In the [] County Court

Claim number

 

Between

 

Uptoeyeballs - Claimant

 

and

 

American Express Europe Limited - Defendant

 

 

1. The Claimant requests that the court determine the rights of the parties' pursuant to section 142 Consumer Credit Act 1974.

 

2. The Defendant has provided the Claimant with a document purporting to be a regulated agreement for the purposes of section 8 of the Consumer Credit Act 1974. Attached as exhibit A.

 

3. The Defendant has also provided the Claimant with a document purporting to be the terms of the agreement. Attached as exhibit B.

 

4. Section 61 of the Consumer Credit Act 1974 provides that:

̋.....

(1) A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the

creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms

..... " ̨

 

5. The prescribed terms for a running-account credit agreement are:

- A term stating the credit limit or the manner in which it will be determined or that there is no credit limit

- A term stating the rate of any interest on the credit to be provided under the agreement

- A term stating how the debtor is to discharge his obligations under the agreement to make the repayments,

which may be expressed by reference to a combination of any of the following--

(a) number of repayments;

(b) amount of repayments;

© frequency and timing of repayments;

(d) dates of repayments;

(e) the manner in which any of the above may be

determined;

or in any other way, and any power of the creditor

to vary what is payable.

 

6. The Claimant contends that within the signature document that the Defendant purports to be an executed

agreement:

- there are no prescribed terms

- has not been signed by the Defendant

- does not embody all the terms of the agreement in that exhibit B is clearly not part of or connected with exhibit A

 

7. As it is clear that the agreement does not meet the requirements of section 61 the Claimant respectfully

requests that the court determine the rights of the parties ˇ pursuant to section 142 Consumer Credit Act 1974.