Okay here goes with the witness statement from the Amex representatitive on the platinum credit card summary judgement application:- (1) The Claim As set out in the particulars of claim, this matter relates to a Platinum Credit Card. Unfortunately in Autumn 2007 the Defendant failed to keep up minimum payments. From the attached statements, it is clear that the Defendant failed to make the minimum payments due in July August & September 2007. Accordingly, the claimant served a Default Notice, terminated the Agreement and now sues for the outstanding balance. (2) The Agreement In or about May 2005 the Claimant sent the Defendant the "Platinum Credit Card Application Form". This consisted of an application form on one side with the terms & conditions of the agreement on the reverse.The document expressly indicated that it was a Credit Agreement regulated by the Consumer Credit Act. The defendant indicated their intention to be bound by the agreement by signing it. The signature is dated 22nd May 2005. Thereafter, this doument was signed on behalf the claimant on 4th June 2005. Thus the completed application form, returned to and accepted by the claimant, became the Credit Agreement. (3) Compliance with Setion 60 & 61 of the CCA 1974. 1 Under section 61 (1)(a) of the CCA1974 for a regulated credit card agreement to be properly executed there is a need for a document in the prescribed form and containing all the prescribed terms. The prescribed terms are set out in the Consumer Credit (Agreements) Regulations 1983. 2 What the Defendant contends these or certain of these are not included, the defendant has failed to partiularize which are missing. So far as I can ascertain, the Conditions included as part of the Platinum Application Form comply with the 1983 Regulations. For the avoidance of doubt, as this agreement was sent to the Defendant before the coming into force of the Consumer Credit (Agreements) (Amendment) Regulations but executed after these Regulations came into force, under Section 18 of the 2004 Regulations it is governed by transitional provisions and the prescribed terms are those set out in the 1983 Regulations. 3 The Claimant complied with Section 83 of the Act by sending a copy of the Agreement to the Claimant along with the credit card (Section 63 (4)) (should have stated to the defendant not to the claimant here). 4 Under Clause 16(1) of the Agreement, the Claimant was able to vary the terms of the agreement by giving the Defendant notice. (4) The Defendants Arguement appears to be as follows:- (a) The agreement does not contain the prescribed terms (b) The Conditions were not within the "four corners of the agreement" © The document has the wrong heading (d) The agreement is a pre-contractual document (e) Transaction date from before the Agreement was signed by the Claimant. (f) Provisions under Section 127 (4) regarding cancellation rights were not complied with. (g) The Defendant contends the Default Notice is invalid. (h) The Defenant contends that service of an invalid Default Notie prevents the Claimant ever enforcing the agreement. (5) I will deal with these in turn: (a) As set out above, so far as I can ascertain, the Conditions do indeed include the prescribed terms. The Defendant has failed to identify those terms contended to have been omitted. (b) As set out above, the conditions were on the back of the document the Defendant signed. There is no requirement for prescribed terms of a regulated credit card agreement to all appear on the same side of a document or that such a document can only be on one page long: multi page agreements are clearly envisaged as Paragraph 1 of Shedule 1 refers to the "first page" of the agreement. © It appears to me that the Defendant has erroneously referred to the requirements for agreements dated after 31st May 2005 under the 2004 Regulations. As set out above, this agreement is governed by the transitional arrangements and the requirements of the 1983 Regulations continue to apply. Thus the correct heading is indeed "Credit Agreement regulated by the Consumer Credit Act 1974". (d) As set out above, the application form became the Credit Agreement once it had been signed by the Defendant and accepted by the Claimant. As I understand it, this is a perfectly usual way for credit card and store card agreements to come into force. It is necessarily the case that the document sent to the Defendant for signing is pre-contractual as the defendants signing it is an essential part of the coming into force of the agreement. The document specifically informed the Defendant that by signing the Defendant was accepting to be legally bound by its terms. (e) As set out above, the claimant has complied with section 63 by delivering a copy of the agreement along with the credit card. (f) The Defendant refers to Section 127 (4) 0f the CCA in the Defence. This is of no application in this case, as this agreement is not a "cancellable agreement" within section 67 of the Act, as there were no antecedant negotiations including oral representations by a negotiator on the claimants behalf. I refer to the definition of "cancellation agreement" in Section 129 (1) of the Act. (g) I understand and the Defendant accepts that the date for compliance in the Default Notice (14 days from the date of the Notice) does not strictly comply with Section 88(2) of the CCA which requires that the date to be not less than 14 days after the date of service of the notice. However, this breach is de minimis and does not render the Notice invalid. I understand in Woodchester Services Ltd V Swain &Co [1999] 1 WLR 263, CA at 268B the Court of Appeal held that a de minimis error in a Default Notice might be overlooked, and the principle that de minimis errors do not invalidate Default Notices was recently applied in Rankine v Halifax Plc[2009] CCLR3. I note that a Default Notice sent by post which is never received is validly served. Here the Defendant did receive the Default Notice and was well aware what was required to comply. The Defendant failed to make the payment required at all. No\prejudice has been caused to the Defendant as a result. It is submitted that this slight error in the date for compliance is de minimis. Further the Agreement entitles the Claimant (and the Defendant) to end the agreement without a requirement for breach on part of the debtor. In such a case there is no need to comply with section 87 of the Act, as this only applies to termination by reason of breach. In any event the Claimant has since served a second Default Notice on the Defendant dated 7th October 2009 which is attached. This expressly expires two weeks after the date of service. The Defendant has failed to make the payment required in this Notice. The Defendant appears to be arguing both that the original Default Notice was invalid and the Agreement has been Terminated nonetheless. It is submitted that this is incoherant pursuant to Section87 of the CCA the Default Notice is a requirement before the Claimant can become entitled to Terminate the Agreement by reason of the Defendants Default. It is not correct to say that the Claimant has breached the contract: it is the Defendant who breached the contract by failing to make the minimum payments as set out above. The Defendant cannot rely on their own failure to meet the terms of the Agreement as a reason not to pay the Claimant the sums due under the Agreement. It is submitted that the service of a Default Notice under Section87 is a procedural requirement rather an essential ingredient of the cause of action. I refer the Court to the case of Rankine (above) and in particular to paragraph 16. (6) Conclusion. The Defendant has failed to adduce a Defence that has real prospects of success and there is no other compelling reason why this case should be disposed of at trial. I therefore respectfully request the Honourable Court enter Summary Judgement for the claimant pursuant to CPR Part 24. So thats the Witness Statement from Amex to the Court as sent with their application for Summary Judgement. Amex have forgot to mention that they have actually destroyed the Actual Agreement, as confirmed in writing from Amex's solicitors. Amex's post Termination Default Notice dated 7th October 2009 states: "To remedy this breach the payment due on your account of !!!! must be paid within fourteen calendar days from the date of service of this Default Notice". (The amount requested is the same amount as requested in the initial Default Notice of 17th September 2007 as shown on page 1 @ point 9 of this thread, and which was Terminated by notice of cancellation dated 5th October 2007). Amex have also failed to mention that they have changed the wording in the Default Notice from "Before the stated date" in the September 2007 Default Notice to "Before the date shown" in the post termination notice of October 2009 Of course you will all have noticed that no actual "date shown" is stipulated as the October 2009 post termination Default Notice states "fourteen calendar days from the date of service of this default notice". When the platinum card arrived no terms or card carrier copy was included, only the card and a number to activate it arrived. The card was used on the 1st June and Amex signed and accepted the application dated the 4th June 2005. So the card was used before Amex accepted the application and before the application form was signed and before the Agreement was executed (if it ever was). No Documents other than the application form (and the platinum card) were received or sent, until October 2005 when a notification from Amex arrived stating changes to terms and conditions. Along with this letter and notification of changes was a pamphlet of what must have been the existing terms & conditions. These differ very significantly to the terms and conditions as put forward by Amex as purporting to be the Terms and Conditions at the time of the application/acceptance of & execution of the actual agreement. we can never be sure what was what, as Amex have declared, stating in writing that the actual agreement has been destroyed. Why was it destroyed, you have to wonder for what possible reason. So anything supplied or commented on by representatives of Amex is presumably hearsay evidence, as the original has been destroyed. All help & thoughts appreciated I will put the second summary judgement application & that witness statement from Amex with reference to the gold card on the site in due course. I have noted the Zhanzibar & Shakespeare62 & surface agent x20 'tale of' sites. But I would appreciate comments on the Agreement and the Default Notice & the Termination Notice & the issuing of the post termination New OCT 2009 Default Notice as to what has been specifically stated within the witness statement by Amex's representative please. Thanks Castella

Hi Everyone Well Amex have now issued an application for a summary judgement, a couple or so days before a hearing before a D.J. to decide directions for the cases. My scanner is playing up as is my main computer, so I will type up the amex's representatives witness statements on the two seperate claims/& now the summary judgement applications. I will type these up early next week. All help & thoughts would be appreciated. There are some interesting statements from the representative on Amex and default notices have a good weekend everyone Castella

dp77 I see from another thread that you have filed a holding defence, is the defence you refer to at post 99 a full defence to the claim? Citizen B as ever is giving you sound advice. Best of Luck

dp77 Do not leave it to the very last moment,you stated at post 81 on the 28/10 that you had received a photocopy, & had 14 days to file it. So do the maths. My personal thought is to have it there before the end of this week. so you need to be on the ball with it, and have everything ready to go by Wednesday. (Send it signed for postage at the very least,but if you cannot afford that then certificate of posting,so that you have a record of it). Have you done/included a skeleton sheet as to what is on each page of the defence--(42 man gave me that tip) just a one line 'precis' of what is on each page. Best of luck

Hi DD Thanks for the that - Yes what you say is what I already had thought--Much appreciated to have someone else think it as well though.So thanks for that. dp 77 how is your defence shaping up?--are you going to post it up or just send it in to the court? When sending in, it should be 2 copies I believe.

Thanks for that citizen B (T) I have already made a note of it Would it not be the time for say PT2537 or surface agent x20 or viscount stair or martin 3030 etc, to collate all thoughts and responses with regards to the Rankine Judgement and then put together valid pointers on how to nullify the Rankine Judgement with regards to the banks and their lawyers and the dca's. I know that there are cases afoot to contest it from what I have read on CAG in the past. just a thought for the site team to consider Regards castella

dp77 CPR 31.15 (b) is the one to quote I believe for physical inspection. Also have a look at PT2537 Defence at post42 in Help-Amex No CCA and theyve started court action. if you have not seen it already, I think it was Cunning Plan's thread

Hi DD I have most of the originals, In 1999 it was definitely 18.but there were differences on the card carrier copies to the little booklets. do you have originals, also look at my todays earlier post of what paragraphs may have been on the back and second applicant details. dp77 shakespeare62 was up to speed it would seem, but the ddj was a 'bar steward' who liked to play cards it would seem. It is a lottery & I have been there already with a previous case and it can be daunting. Hows your defence coming along

dp77 - remember the majority of district judges and deputy district judges are with respect weighted on one side!!! You have to have good realistic arguements and put them over with conviction and finesse. Remember the playing field is not so level at times, look at the unfortunate happenings with regards to Shakespeare 62--Shakespeare62 seemed to have done his homework and seemed to be well prepared and then met a DDJ who appeared to only be interested in playing cards of one form or another. As BRW says the DDJ/DJ situation is a lottery. Eventually you will have your time in court, but you must prepare your case well, and do not get sidetracked. Try to get a physical inspection of what Amex purport to be the actual agreement. Get them to give you a colour photocopy of it, and get them to confirm it is a copy of the original agreement and get them to sign date and rubber stamp it if possible. Then read the application form part and pull it to bits word by word especially the personal information and credit agreement regulated boxes on the front. Do they make reference to the back or overleaf of the application form in any way to your advantage. For now, the clock is ticking and you need to prepare your defence, how is that shaping up--you must cover all the bases with your defence if possible--have a read of the ones suggested --also look at shakespeare62's defence &amended defence.

Hi dp77 Hi DD No date as yet dp77 There were only 18 conditions in 1999 DD. As I said earlier today: I have the card carrier copy of the agreement, The wording in some of the eighteen conditions differs, and there is no table in the card carrier copy. Quoting Rankine back at Amex-with ref to para 28 in the judgement: "when the agreement is executed a credit card is sent out, and usually this is attached to the 'card carrier' copy of the agreement. This copy has to be sent to the borrower by virtue of.............. and this is the executed copy". As I mentioned earlier today there is nowhere on the purported stated actual agreement (which Amex have put forward as the actual agreement), for any second applicant to apply,nor any of the items I made reference to under Personal Information (as regards to information overleaf) and the part of a list which I put forward. Also the document is too new for something that is 10 years of age. This document put forward as the purported original,significantly differs from the one as sent many months ago to the CCA s.78 request which was sent from Amex via Newmans with 20 items on, and also included cancellation rights. So they would appear to be using someone from the magic circle to conjure up their purported agreements now.

Hi dp77 &DD As regards to the Cpr 31.14 request I mentioned it in Tandem with CPR31.15 and I got to see what they purport to be the original Agreement. Mine was a copy of the 60 second application form from some ten years ago, with a copy of the 18 items from the printed booklet of terms (from that period) printed on the back. It looked like a brand new document in gold colour, not a ten year old document. The text of the conditions differ in several instances from the card carrier copy of the original agreement that I still have. Also There is no table under the item Annual Percentage Rate in the card carrier copy. Also there are just the 18 Items, nothing else, there is no mention of cancellation rights on the rear, and no mention of application for a further card for a member of the family etc. There is no mention of Use of your (and any additional applicant's) Personal Information: which states as a follow on from the front of the application form at Personal Information where it says in the first line "Before signing the application, it is important that you read the paragraphs set out overleaf" These would refer to:If an American Express Card is issued to you, you agree that American Express will: 1) disclose information about you & your card etc 2) use information about you and how you use your card etc 3) exchange information about you and your card account etc 4) carry out any credit checks whilst any money is owed by you 5) analyse information about you etc 6) monitor and/or record your telephone calls etc 7) undertake all of the above in respect of any additional cardholder etc 8) undertake all of the above within and outside the United Kingdom and the European Union. This includes processing your information in the USA in which Data protection laws are not are not as comprehensive as in the European Union etc. Some or all of the above would be included on the back as this refers to personal information. If you check your application forms which are purported to be 'your agreements', you will probably find that nowhere on the front does it state or refer to 'terms & conditions' or 'conditions' overleaf. hope this is of some help regards castella

Thanks for those FG and r&b, I have already read Blue Thunders site, it was not good the way he was treated by the DDJ. Does anyone have any further references to Rankine & Simon Brown QC's judgement and how best to combat it? All help much appreciated

help wanted please can anyone point me in the direction of responses with regards to the Rankine Judgement--especially with regards to Judge Simon Browns point 16 in the judgement--I have received a post termination DN all help much appreciated regards castella

I have some queries on Rankine and enforcement etc. Has anyone got any good threads to look at with regards to Rankine please. I have read post 206 from BRW on Professor Roy Goode and Rankine and also post 210 from Josie and ref surface agent x20 both on Blue Thunders Amex & AIC & Newman site. I've read Tale of a dodgy default notice from x20. Ive been served with a post termination default notice, after the claim has commenced. All help much appreciated--Thanks.

yes that's correct citizen B.And on top of this,amex have recently written stating that the original agreement has been destroyed. At post 9 on page 1 on this thread, I have shown the original default & termination notices from 2007. I have also shown the statement of claim, which states "a copy of the agreement" at point 1 in the statement of claim.---So they would appear to be falling on their sword all by themselves--anyone got any thoughts on the next steps to take? castella

Hi Everyone we are post AQ STAGE NOW--Amex have now sent(Oct 2009) a further default notice some 22 plus months (post termination in autumn2007) after the original invalid default notice was issued. Amex have put the same amount to be paid(£232) as in the original default notice of 2007 In this one they have underlined the parts that they should underline (which were not underlined in the original 2007 dn) and have done the bold type where they are supposed to do (again which was not done in the original invalid dn of 2007). I stated that the underlining and bold capitals were not in the original dn, in my recent defence.so amex have put them in and sent out a default notice dated October 2009 some 22 plus months after their original notice of cancellation letter. I also stated about insufficient time being allowed for the notice in my defence but amex have disregarded that it would appear. This further DN of Oct 09 still has no actual date to rectify the default by, and still states 14 calendar days from the date of this notice to rectify the default. which fails to allow for issuing and service by post etc. Any thoughts on this -I have read surface agent x20 tale of a dodgy dn etc several times. All help much appreciated Regards castella

hi DD it's my understanding they cannot do it post termination approx 2 years after termination--- & also because the claim has commenced-- once an ineffective default notice has been issued followed by a termination notice as BRW (i think) says they are in deep do-dah.with regards to their entitlements under s.87/88 of the act x20 refers to it on his tale of a dodgy dn. No I have not put it on my site as yet castella

hi DD - hi dp77 would you believe it -amex have sent a further default notice after termination in an attempt to rectify some of the mistakes in the original default notice which I stated in the defence The original default notice was issued in autumn 2007 with a termination notice being issued some two weeks plus later in 2007. This new default notice is dated oct 2009.Issued nearly two years post termination. anyone got any thoughts on this regards castella

dp77 holding defence to consider from scabhunter post 44 RE:court papers and filing a defence - help please Also a good site to read through is: Zhanzibar vs Amex/AIC/Newman/Brachers Solicitors and also Surface agent x20-Tale of a dodgy default notice. (just surface agentx20 reasoning on this site) (no offence meant to anyone else who has posted on that site). and also peterbard Re: Agreement Enforceability post 26 All those should be of interest to you -hope they help Regards castella

Hi dp 77 sorry ref post 69 -more defences to consider Halifax Platinum CCA POST 86 9from steven 4064- How to Defend a Loan post 32 Jools 63 County Court Summons -can I defend it post 39 Stephen7 Court papers received re: HFC post 68

hi dp77 &DD dp 77 items to consider ref suggestions for defence are: Post 24 stayingcalm vs abbey with no cca & won Hhalifax

hi dp77 Remember what BRW has said about Amex---you cannot trust them --you ought possibly to file as full a defence as possible with a note to the court that once you have received a response to the cpr 31.14 requests to be permitted to amend the defence in due course--that is only my thoughts & opinion no one elses, as you have in my opinion 'to cover all the bases' and try to leave no stone unturned with them. There are some excellent defences on the site as such, many from PT -purely my thoughts for what they are worth, & I have no legal background as such. Just common sense Can you recall when you signed your original application many years ago was there any conditions on the back, or where you to fold the application form up and seal the edges down and send it back to them. I have the original invitation letter as sent with the sixty second application, a letter of acceptance from amex of the application and the actual copy agreement as sent with the card. Be carefull how much time they take to respond to the CPR 31.14 as regards (here's one I pre- - red ear - ier) which I leave to everyone's imagination.(purely my thoughts only) How is the default notice they sent you is it compliant or does it state 14 calendar days from the date of this default notice? Have you had a notice of cancellation from Amex? A further thought ref your defence-you could always write a reply to amex or their solicitors saying that you request them to agree to give you 14 days to file your defence after receiving their responses to your cpr 31.14 . Regards Castella

Hi DD Hi dp77-- The terms &conditions on the rear of the sixty second application-do you have your original copy of your agreement as sent with your first amex card-if you do have it, look at ponts 7 & 8 and 12on their conditions and on your actual agreement as sent--also does their 60second application on the back under terms& conditions have any cancellation rights--if its a true copy of the actual agreement they would be on there would they not Have they started a claim against you DD- I'm at the AQ stage, what stage are you at dp? Have either of you sent a cpr 31.14 yet Regards castella

Hi everyone Defence now finished and going in now Amex under CPR 31.14 have sent further copies of ten pages of terms & conditions in attempted compliance to the CPR 31.14, so in consequence of their failings: I will be writing to Amex's solicitors requesting a right to inspect a document, with ref to cpr 31.15 and under 31.14 --a party may inspect a document mentioned in : (a) a statement of case. 31.15 where a party has a right to inspect a document - (a) that party must give the party who disclosed the document written notice of his wish to inspect it. (b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice.

thanks for that pt2537- good to have you batting on my side. I have today sent them a further letter -with an apology -but also requesting inspection of the original document. regards castella