AMEX & AIC & Newman

[Blue Thunder]

Hi - I posted on here back in July when I was having trouble with AIC trying to collect on behalf of AMEX. Anyway after requesting a CCA, eventually they sent me a copy of it ( this was the original Credit Card Application form - from a mail out they sent me.) It was only the application form though. I HAD signed it in a box underneath the term ' This is a Credit Card Agreement regulated by the CCA of 1974.......'

There was NO signature on this form where it stated 'authorised by AMEX' although it did have an 'Approved' stamp plus a signature, but not dated on it. This form goes back to 2001.

This was sent back to me with an apologetic letter from AIC stating that my file with them was now closed and they had referred my case back to AMEX and any further dealings should be with them directly.

Almost THREE months later I have been sent a letter from Newmans telling me they are now acting on behalf of AMEX - and requesting ridiculous amounts (10 times what I can actually afford to pay them - and have already offered them ).

Can anybody tell me where I stand with this and what I should do next - is the CCA form I have been supplied so far legally enforceable? Should I request it again from Newmans?

Why did AIC pass it back to AMEX?

 

The defaulted debt has since increased by almost three grand, with AIC and Newmans charges PLUS interest apparently is still accruing.

 

many thanks in advance

[pt2537]

Hi

If you can post up a copy of the agreement they sent you minus the personal details we can have a look and see if the agreement is enforceable or not

 

then we can advise what is the best course of action

 

regards

paul

[Kris4Fizz]

Hi,

 

It would at this time be advisable to SAR (subject access request) AMEX so you can find out exactly what is owed on the debt.

 

From what I understand is that a lot of these additional charges are added and are unlawful.

 

If you do that and let us know what you get back we can go from there!

[pt2537]

Hi

 

A fair point, however at this point in time, it is far better to look at the Agreement and if it is at all enforceable. once we know if it is or isn't then we can say what options are available to the OP

if the agreement is unenforcable then the OP can consider what they want todo , they could chose to offer a low full and final settlement figure or they could chose to ignore the company completely and cease all payments

 

at the end of the day, until we know if the agreement is enforceable, i would hang fire on the SAR

 

that is of course my opinion

 

regards

paul

[Kris4Fizz]

Fair comment Paul,

 

Completely forgot to mention the CCA request.

 

As Paul says

"

Find out if the debt is enforceable first."

[shane5408]

Hi Blue Thunder

 

From what you're saying it sounds like you sent a CCA Request to AIC initially who then passed the account back to Amex. Now that Newmans are trying to collect the debt you should CCA them immediately (if you haven't already done so), if possible try not to sign the letter, just printing your name will suffice. I realize you've already got a copy of the alleged application but Newmans are also required to send you a statement of account with their response which should shed some light on any charges they've added to the debt, more likely they too will simply pass it back to Amex though.

 

As long as AMEX are still the legal owners of the debt you should send them a S.A.R - (Subject Access Request) Request, regardless of whether the debt is enforcable or not if there are penalty charges on the account you should begin claiming them back and given the time period for a SAR is 40 days the sooner you send it the better.

 

Lastly, it would be useful if you could post up the agreement you received back initially, from what you've described it sounds like improper execution renderring it enforcable only by order of the court but if there are prescribed terms missing it could make it completely unenforcable.

 

kind regards,

shane

[firstwithit]

No need to waste another pound, just point out that they cannot collect or attempt to do as it is in dispute with AIC!

[Blue Thunder]

Hi Guys,

 

Apologies for the delay in responding. Thanks for the various replies. Much appreciated. I have uploaded the CCA form I got back from AIC. Please give me your thoughts.

 

Thanks Blue

well I would upload the form if it let me. Tried numerous times - keeps failing. any ideas?

[Blue Thunder]

OK Guys - success with the attachment at last.

 

Would really appreciate your thoughts.

 

Best regards

 

Blue

amex app.pdf

[ScarletPimpernel]

Just like the stuff Amex sent in response to my CCA - entirely devoid of prescribed information, and utterly unenforceable.

[Blue Thunder]

Thanks Scarlet,

 

What did you do then? I have a default registered against me at present - what's my next step?

[pt2537]

i think i would be begging them to take me to court:lol:

 

that agreement contains no prescribed terms and is totally unenforcable

[pt2537]

the prescribed terms are

 

 

1. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - 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 and 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--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. 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

 

since this document doesnt contain them it is truely unenforcable

[Monty2007]

Hi

 

I am in a similar situation with Amex. They passed me to RMAI/NCO then to Brachers. As soon as I informed Brachers that their client had not produced a consumer credit agreement and reminded them of their obligation the account was passed back to Amex. I am now with another DCA who have demanded FULL PAYMENT - IMMEDIATELY.

 

Needless to say that the use of bold, full capitals sent by a new set of Muppet's has simply confirmed that they don't have an enforceable agreement and at some point will want to save postage and agree a reasonable settlement. I would be up for a court case since I have a huge file on how Amex, RMAI/NCO and Brachers have behaved, in breach of the CCA and the FSO guidelines.

[pt2537]

try slapping them with something like this

 

Dear Sirs,

 

Thank you for your letter dated **********, the contents of which are noted

I note that to date you have not complied with my request for a copy of the credit agreement for this alleged debt which you are pursuing me for

The Consumer Credit Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. All you have sent is a pre-contractual application form, which does not contain the prescribed terms contained within Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). Without production of the said agreement I am unable to asses if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’.

 

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

For the avoidance of any doubt I have included section 78(1) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(2) …….

(3)….….

(4) ………

(4A)……

(5) ………

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

(7) This section does not apply to a non-commercial agreement, and subsections [(4) to (5)] do not apply to a small agreement.

 

 

Clearly the agreement which was supplied in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in s78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

To clarify s61(1) states

 

(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, and

 

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the The prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - 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 and 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—

 

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. 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

 

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced. I will re-iterate that this is clearly not a true copy of the executed agreement between ********* and myself.

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as ********* become compliant with my request. As ****** are still not in compliance with my request I insist that the following takes place with immediate effect

• All charges levied since ******** 2007 be removed from the account and further charges cease until such time as ******8 comply fully with my original request or such time as a court makes an enforcement order
  
• All entries which refer to missed payments be removed from my credit file
  
• All collection activities by your company and Littlewoods cease with immediate effect until ******** comply with my request from ********* 2007 or such time as a court makes an enforcement order

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

Clearly your pursuance of this debt falls into this category; in addition I must draw your attention to the fact that this debt is under investigation by Mr ******** of ********************** Trading Standards as I have made a complaint as a direct result of **************** failure to comply with the CCA 74 .

 

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist.

 

No other correspondence will be accepted

 

I trust this out lines the situation

 

Regards

 

 

[Blue Thunder]

PT - was that meant for me or Monty?

Fantasticlooking letter - whoever it's for!!!!!

 

Regards

Blue

[pt2537]

sorry blue, i didnt see montys post

 

that was for you, amend to suit

 

regards

paul

[Blue Thunder]

Brilliant Paul,

I will give it a go and lt you know.

Thanks for your help

Blue

[Blue Thunder]

Just a quick question - should I send this to Amex,AIC or Newmans?

AIC sent the original CCA request to me but closed the file and passed it back to AMEX they passed it on to Newmans - who have just threatened me again and added on a further whack of debt.

Thanks

Blue.

[pt2537]

right ok,

 

bear with me i will take a look in the library

 

back in a mo

[pt2537]

right then

 

 

the first letter to amex or whoever you sent the CCA request to originally, just to give them a kick

 

and this to the DCA

 

 

ACCOUNT IN DISPUTE

Dear Sir or Madam,

Account number: XXXX XXXX XXXX XXXX

 

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the **original creditor/DCA** and has been since DATE 2007.

Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

 

My last letter from **original creditor/DCA** was DATE and intimated that my complaint would be

resolved on **DATE**, this obviously hasn’t happened.

As **original creditor/DCA** are now in default of my Consumer Credit Act request, and in breach OFT Collection Guidelines, I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

 

Now I would respectfully suggest that this account is returned to the **original creditor/DCA** for resolution of these defaults and breaches, as **New DCA** cannot lawfully pursue any enforcement activities.

 

If **New DCA** chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

I hope that this will not be necessary and an acceptable solution can be accomplished.

 

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

 

that should sort these idiots out

 

regards

paul

[Blue Thunder]

Thanks Paul - beyond the call of duty Sir................

I salute you!

Regards

 

Blue

[pt2537]

your welcome mate,

 

if you need any other help let us know

 

regards

paul

[Blue Thunder]

Hi Guys,

 

Here is the latest update.

Sent the first letter to AIC - original DCA - have never had a response.

Sent second letter to Newmans - new DCA - they sent me another copy of the Credit Card Application, as shown earlier in this thread. Three days later they sent me a 'Legal Action' letter - threatening the normal.

Can somebody give me the 'Heads Up' on this situation now and what I should now do - I really need to finalise - one way or another. Dare I push Newmans all the way with this. If so what is the likely outcome.

Many thanks

Blue

[zhanzhibar]

Hi Blue

 

I am in exactly the same position as you with Amex. It seems we have the same enemy my friend. AIC chased me back in July 07. I CCA'd them then but never received anything from neither AMEX or AIC. Then Newman started ringing me at home & my mobile every 3 hours. I then sent a letter to Newman similar to what Paul put on #21. They ignored that letter by sending me another letter threatening to put me through Bancruptcy due to a large amount of Debt (OD was £5k but somehow they said I owed £8.5k). This was sent on the 10th Jan, I then sent them another letter courtesy of Curlyben. I adjust the letter a bit by saying that since they have not complied to my request they should not communicate with me at all or I will report them. Yesterday I received another letter from them in a "not so threatening" offering a solution if I could contact them. Would I? Of course not, I am not going to contact them until they show me what I want to see. We will see what happen in the next chapter.....

 

zan