zhanzhibar vs Amex/AIC/Newman/ Brachers Solicitors

[Undercover-Elsa]

Totally agree Shadow.

[zhanzhibar]

Re their argument that Clause 16 (2) allows them to terminate, which they claim negates the need for the DN to be correct..

what does clause 16 (2) of the T&C's actually say, Zhan? What process does it state should be followed, and did they ACTUALLY follow that process?

If not then surely they have chosen to terminate for breach, and must still follow that course if they haven't taken the required contractual steps to terminate under "clause 16 (2)"

Just a thought...

 

Elsa x

 

Hiya , clause 16(2) of the T&Cs

 

Edited September 23, 2010 by zhanzhibar

[Undercover-Elsa]

Thanks, Zhan, hopefully as Shadow says it should be hypothetical, but just in case, did they ever write to you quoting termination under clause 16 (2) prior to issuing proceedings? If not they can't use that excuse (IMHO) as they did with Brandon.

[bazaar]

hmmm, but it doesnt give any indication of why they would end the agreement, If it were executed correctly of course.

there are certain rules in the statutes, so i think this clause might be negated within the CCA. and thus, will be an unfair term if my mind is working correctly today

[AndyOrch]

Nail on the head Baz

 

14 Unfair Relationships

 

14 .1 New regime to replace extortionate credit bargain regime

 

On the 6th April 2007 the 2006 Act replaced the extortinate credit bargain regime with the new regime of unfair relationship.A bargain was extorinate if ,at the time an agreement was made, it required the debtor to make payments which were grossly exorbitant or otherwise grossly contravened ordinary principles of fair trading.

 

14.3 Transition

 

After 6th April 2008 a court may:-

 

A. Find a relationship to be unfair by reference of events or conduct predating predating the regime.

 

B. Order the repayment of payments made before the regime

 

 

14.4 Unfair Relation Test

 

Under the Unfair Relationship regime a court may find a credit agreement to be unfair to the debtor due to any one or more of the following:-

 

A Any of the terms of the agreement or any related agreement

 

B the way in which the creditor has excercised or enforced any of his rights under the agreement or related agreement

 

C any other thing done (or not done) by or on behalf of, the creditor either before or after making the agreement.

 

In some cases unfair contract terms may be sufficient to give rise to unfair relationship

 

14.7 Burden of proof

 

If the Debtor alleges that the relationship is unfair its the Creditor to prove the contrary,the burden of proof is on the creditor.

[zhanzhibar]

Thanks, Zhan, hopefully as Shadow says it should be hypothetical, but just in case, did they ever write to you quoting termination under clause 16 (2) prior to issuing proceedings? If not they can't use that excuse (IMHO) as they did with Brandon.

 

Hiya, OK I am not eaxctly sure what you mean by them writing to me about the clause 16(2). I did receive this though

[Undercover-Elsa]

Yep, so they cancelled it the month after they sent the default notice, therefore can't claim it was done under clause 16 (2).

It actually states they will register "THE DEFAULT" within 28 days with the CRA's.

Edited September 23, 2010 by Undercover-Elsa

[Undercover-Elsa]

This is relevant to point 31 in their witness statement as they are trying to twist the facts by stating they did not cancel in a default situation, when clearly they did. Trying to get you the same way they got Brandon. If his appeal fails you'll need to counteract that with the above.

 

Elsa x

[Rhia]

Must just join in to say as soon as I read this garbage on her WS re Gregorian etc my jaw dropped and the wonderful expression WTF fell from my lips. Just who, anwhere in the world, in any line of business uses the 204th day of whatever when writing a date. in either a personal or a commercial sense.

 

Complete and total hogwash but Ill give 'em a couple of points for a fresh approach at hogwasherry.

 

Yup and I too would be slightly suspect re a single poster but then Im just paranoid.

[Rhia]

Wow a load of us all pitched in at once with comments at the same time last night. I totally agree that s140 of the CCA is a powerful argument. amex is trying to pretend or hoodwink you into believing they can undermine the CCA. Just because they are a US company. They think they can avoid their responsibilities but Parliament intended UK citizens to be afforded protection from unscrupulous lenders - not that you'd realise that from some judges.

[bazaar]

Hi Zhan, just been having a shufty through her WS, now on point 31, they deny that the act is relevent.

Has the 'agreement' copy youve got, showing any period of duration? it doesnt have to be a fixed date, just go through it and see if there is anything that states for instance, 'this agreement will remain active blah blah,'

Or is there THIS statement? The Consumer Credit Act 1974 lays down certain requirements for your protection which should

have been complied with when this agreement was made. If they were not, we cannot enforce

this agreement without getting a court order.

 

OR This, English law governs this agreement etc.

AND general law (for example, about banking or consumer protection) applies to this agreement.

 

Its obviously going to have the standard regulated by the cca 1974 stuff

 

If you do not cancel your Agreement, your Account will remain open until your Agreement is ended in accordance with this Condition ( THIS is from an Egg CC)

[manchesteruni]

lol, re the one post comments, don't worry, am on another site talking with Zhan about same case, just spotted the confusion about the gregorian/julian etc and thought was best to clear it up here lest it become an issue, even registered especially lol. xx

[zhanzhibar]

I am currently preparing my schedule of issues and summary of case which i will put up here later for feedback please but having read again ms Fiona WS I am getting slightly worried that I missed the date to asked to see evidence particularly what she said on para 28 on the abridged terms signed by me. I have never seen it & this is only came up in this fsattrack proceeding, so am I too late do you all think? I don't actually know what this abridge T&Cs is & how they got my signature... Worried now..very worried...

[zhanzhibar]

Thanks, Zhan, hopefully as Shadow says it should be hypothetical, but just in case, did they ever write to you quoting termination under clause 16 (2) prior to issuing proceedings? If not they can't use that excuse (IMHO) as they did with Brandon.

hmmm, but it doesnt give any indication of why they would end the agreement, If it were executed correctly of course.

there are certain rules in the statutes, so i think this clause might be negated within the CCA. and thus, will be an unfair term if my mind is working correctly today

14 Unfair Relationships

 

14 .1 New regime to replace extortionate credit bargain regime

On the 6th April 2007 the 2006 Act replaced the extortinate credit bargain regime with the new regime of unfair relationship.A bargain was extorinate if ,at the time an agreement was made, it required the debtor to make payments which were grossly exorbitant or otherwise grossly contravened ordinary principles of fair trading.

 

14.3 Transition

After 6th April 2008 a court may:-

A. Find a relationship to be unfair by reference of events or conduct predating predating the regime.

B. Order the repayment of payments made before the regime

 

14.4 Unfair Relation Test

Under the Unfair Relationship regime a court may find a credit agreement to be unfair to the debtor due to any one or more of the following:-

A Any of the terms of the agreement or any related agreement

B the way in which the creditor has excercised or enforced any of his rights under the agreement or related agreement

C any other thing done (or not done) by or on behalf of, the creditor either before or after making the agreement.

 

In some cases unfair contract terms may be sufficient to give rise to unfair relationship

 

14.7 Burden of proof

If the Debtor alleges that the relationship is unfair its the Creditor to prove the contrary,the burden of proof is on the creditor.

 

Hi all, Thanx for the input. As this is only came up in the WS, is this sthg I can use in my summary of case? Or shall i just wait till skeleton argument which I belive I need to prepare nearer the trial date. Is my understanding correct or is summary of case & sekeleton argument one & the same?

Edited October 10, 2010 by zhanzhibar

[zhanzhibar]

Hi Zhan, just been having a shufty through her WS, now on point 31, they deny that the act is relevent.

Has the 'agreement' copy youve got, showing any period of duration? it doesnt have to be a fixed date, just go through it and see if there is anything that states for instance, 'this agreement will remain active blah blah,'

Or is there THIS statement? The Consumer Credit Act 1974 lays down certain requirements for your protection which should

have been complied with when this agreement was made. If they were not, we cannot enforce

this agreement without getting a court order.

 

OR This, English law governs this agreement etc.

AND general law (for example, about banking or consumer protection) applies to this agreement.

 

Its obviously going to have the standard regulated by the cca 1974 stuff

 

If you do not cancel your Agreement, your Account will remain open until your Agreement is ended in accordance with this Condition ( THIS is from an Egg CC)

Hiya, this is what it says on the blank T&Cs. I can't say what is in the abridged one they been referring to in para 28 of the WS (that has my signature) as I don't have a copy of that..

 

[zhanzhibar]

Hi everyone is this what schedule of issue supposed to look like?

[zhanzhibar]

Hi all

 

I am trying to get this argument re Clause 16(2) in my head in simple English. So am I right in thinking that

 

a) in para 20 of their WS, Clause 16(2) of T&Cs give Claimant the power to end the agreement by giving notice to the defendant and vice versa.

 

b) we are saying that Amex cannot do this because CCA is the regulation overriding here specifically s87/88 CCA 1974 so without a proper default under s87 they shouldnt be able to terminate the agreement early.

 

c )so what we are saying is that the Clause 16(2) they relied upon from their T&C is void i.e invalid/ cannot be used becoz of S173(1) (as above)

 

d) we are saying that the insertion of Clause 16(2) in the T&Cs is unfair and under the Unfair Relationship regime the court may find a credit agreement to be unfair to the debtor due to any one or more of the following:-

 

1) Any of the terms of the agreement or any related agreement

2)the way in which the creditor has excercised or enforced any of his rights under the agreement or related agreement ( this is the one applied to my case i think!)

3) any other thing done (or not done) by or on behalf of, the creditor either before or after making the agreement.

 

 

Is this the argument re Clause 16(2) of the T&Cs?

[zhanzhibar]

Ok here is my case summary

 

 

 

 

 

 

 

 

 

I need to do the listing questionnaire together with Summary of case & schedule of issues and submit yo court by 14th Oct; can anybody/somebody let me know whether

 

a) the way I do my schedule of issues above is correct and perhaps give me a few pointers what else to write there

 

b) whether my case summary above is the way to do it or whether case summary=skeleton argument hence I need to put all issues now

 

c) whether I need to say sthg about the application to stay in the listing questionnaire part A?

[zhanzhibar]

Hi all,

 

can somebody explain to me why miss fiona said in para 31of Amex WS that the agreement "did not have a definite duration" hence s98 does not apply?

[the_shadow]

Hi all,

 

can somebody explain to me why miss fiona said in para 31of Amex WS that the agreement "did not have a definite duration" hence s98 does not apply?

 

Ok, Ill give it a go

 

[First part of para 31]

As we know the CCA 1974 says that to terminate an agreement they HAVE to give a default notice giving you 14 days to rectify the default. Amex are saying that because their terms and conditions state they can terminate at any time this overrides the CCA1974...[Hogwash!! Amex]

 

They have used this in Brandon and it is probably the key point appealed on so this is a clear connection between your case and Brandon and strengthens the case for a stay.

 

[second part of para 31]

 

They are stating that the CCA974 s98 does not apply, this is correct as s98 is for terminations where there is no default...so where s87 allows them to claim all future monies due to a default, s98 allows them to claim only the things that are due at that point. So if this was a loan and had 60 payments, they could issue a claim after the 60 months without issuing a default notice as s98 allows them to terminate with no default and seek all repayments that were due AT that time as the loan period had ended.

 

S.

[zhanzhibar]

TQ for that clarification, Shadow. I think I understand now.

 

So

Hi all

 

I am trying to get this argument re Clause 16(2) in my head in simple English. So am I right in thinking that

 

a) in para 20 of their WS, Clause 16(2) of T&Cs give Claimant the power to end the agreement by giving notice to the defendant and vice versa.

 

b) we are saying that Amex cannot do this because CCA is the regulation overriding here specifically s87/88 CCA 1974 so without a proper default under s87 they shouldnt be able to terminate the agreement early.

 

c )so what we are saying is that the Clause 16(2) they relied upon from their T&C is void i.e invalid/ cannot be used becoz of S173(1) (as above)

 

d) we are saying that the insertion of Clause 16(2) in the T&Cs is unfair and under the Unfair Relationship regime the court may find a credit agreement to be unfair to the debtor due to any one or more of the following:-

 

1) Any of the terms of the agreement or any related agreement

2)the way in which the creditor has excercised or enforced any of his rights under the agreement or related agreement ( this is the one applied to my case i think!)

3) any other thing done (or not done) by or on behalf of, the creditor either before or after making the agreement.

 

 

So the result of the points above being only the court can determine whether the agreement is enforceable?

So should I include this point in my case summary or shall I wait till I need to prepare skeletal argument?

[the_shadow]

Hi Zhan,

 

I've no experience at all of fast track but imho yes you would put the point into your case summary along with the chronology of the case.

 

I know your receiving help on "another site" so hopefully you'll get further input.

 

S.

[zhanzhibar]

TQ shadow. I am updating my case summary at the mo to include this. I am also preparing an estimate of costs and was going through what they sent me.

 

The cost they estimating is c £12k.

 

 

 

Here is my estimate of cost

 

 

 

My £928 looks quite ridiculous next to their £12k, am I missing something here relating to fast track cost estimate? And what is that estimate costs re Defendant and his solicitor of £1000? Anybody familiar with these sort of thing?

 

Furthermore, am wondering why is Bracher's costs in there too as we already settled that costs following the SJ being thrown out. The cost that was granted to me then include everything from the filing of defense till the SJ hearing so I am actually not quite sure whether I am entitled to claim it all again. What do you all think?

Edited October 12, 2010 by zhanzhibar

[zhanzhibar]

Just checking my other e-mail address & Mr Chik of Mishcon has been contacting me. Here are the attachments to the e-mail

 

 

 

 

 

Have to say looking at the issues, it basically sums it up but my brain is a bit tired as it is now 3.30 am. I have e-mailed Edwin & told him I can't give any answer till Wed 13 b4 10. Would appreciate some comments on these please.

 

 

 

 

 

 

I also noticed something when I went through Exhibit FT1 of Miss Fiona which consist of 100 pages of all sorts of documents tonight. Amongst these 100 pages, there are 3 sets of agreement with terms and conditions;

 

1st Set

a 12 pages long of T&Cs Clause 1- 25 (inc Clause16(2)).All the copies oft he agreement that Brachers gave me before is only up to Clause 8 so this is the first time I've seen Clause 16(2). No names, no signature ...all blanks

 

2nd Set

is the set that Brachers gave with me with only T&Cs up to Clause 8. No name nor signature ( the signature page looks like above)

 

3rd Set

is I think the one that they called the abridged set that got my is my signature although

 

 

a) I've never seen the agreement in this form before which I did argue in the SJ & my amended defense

b) it's still not ticked so its an unexecuted agreement as far as I know

c) on the first page where there should be my name as the cardmember is still blank..

 

My BIG question is, is this allowed in the court of law? Can they just do what they like & bring up evidence as & when they like and we can't say anything? If I have just accepted that I owe the money when they issued the POC,

a) that extra cost of £1,143 on top of the outstanding amount I will just paid it. Only just before the hearing of SJ that they decided to change their claim & take that out.

 

b) I would never know whether there is CCA between me & them, i.e an enforceable one at that. As at the moment, I still don't..

[foolishgirl]

Zhan, I've not followed all your thread thro' so forgive me if this is not appropriate but in respect of costs you might like to note the Ministry of Justice Part 46 Fast Track Trial Costs,

‘46(2) where the value of the claim is more than £3,000 but not more than £10,000 the amount of fast track trial costs which the court may award is £690.'

 

Re. costs incurred previously by them that have already been decided in your favour, IMO they are not entitled to claim again.