Help with Newmans please

[wishiwasrich]

Hello

 

My husband found this site for me after coming home and finding me smoking (I don't smoke) and in tears over yet another abusive call from Newmans re Amex.

 

I had never failed to repay my obligations on anything - and had an immaculate credit rating until late last year. My mother became dangerously ill (she was told she had 2 weeks to live 3x) mid last year and I travelled abroad to take care of her as she didn't speak the language in the hospital she was in. I tried to explain this to Amex who kept ringing at ungodly local hours when I was sitting in a hospital in a foreign country for months. I had to close my business down and thus had no income for six months or more.

 

Everyone accepted an agreement except Newman and Co for Amex (and MBNA who refused to pay my PPI having promised for 4 yrs I was covered but that is another story I'll figure out the forums for that later).

 

I offered Newman part of the unemployment benefit I was receiving on my return to no avail. I then got a temporary job and could pay them quite a lot but told them it was only for 3 months. In the end it was for 4. They are now - literally - screaming at me to continue this payment which does not seem to be reducing the total by very much at all. They claim Amex are still charging me interest and they are charging me nothing but the debt has not reduced in any way that I can see equals my repayments. I tried to reach Amex and a Customer Service agent said they couldn't help me but felt Newmans were behaving badly (I told Newmans this and they said Amex were always making mistakes like this - today they told me that they checked with Amex and basically accused me of lying about the whole conversation).

 

I asked for their terms and conditions today as I felt I had a right to know who was being paid what and under what terms - they refused saying I didn't have the right to know that.

 

Apologies for the long first post (I presume you are used to it) but I am at my wits end. I have never been spoken to like this in my life (I try to be polite and get told I'm condescending!) I am trying to set up a reasonable payment plan and they just will not listen to me.

 

Thank you so much for being here and your reply

[rory32]

Hi and welcome to CAG. I have moved you post to a thread of its own - that way you should receive lots more help and advice on your situation.

 

What type of card is this? Is it a credit card or a charge card?

 

First thing to do is not to speak to them over the phone. Just insist everything is in writing only, then put the phone down. Also send them the following letter via recorded delivery http://www.consumeractiongroup.co.uk/forum/bank-templates-library/37006-harassment-telephone-response-letter.html As with all letters to DCA's, do not sign the letter.

[rory32]

Forgot to say, you can usually get call barring on certain numbers if you speak to your telephone line provider and inform them that you are being harassed.

[wishiwasrich]

Hello and thank you

 

It was a credit card (ie monthly repayments). I've held both with Amex over the last dozen years or so and had never previously missed a payment.

 

I will send the letter tomorrow.

 

Newman claim to have sent me a bankruptcy proceedings document that I never received nor do they appear to have actioned whatever it was. When I spoke to them today (they rang to say that the call I made last month offering half what I was previously paying was totally unacceptable and they would make me bankrupt if I didn't make a payment immediately) they again said that no offer was acceptable other than the amount I had told them I could only make for 3 months (which is far in excess of the minimum monthly payment being made to Amex up to last Nov).

 

Thanks again

[rory32]

t was a credit card (ie monthly repayments). I've held both with Amex over the last dozen years or so and had never previously missed a payment.

Okay send them template N here as well. Again don't sign it and enclose a £1 postal order. After 12 years they may well not have a copy of the credit agreement. Without a copy of the credit agreement or one that complies completely with the Act they can not enforce the debt even in a court of law.

[wishiwasrich]

is it acceptable to blow kisses as thank yous on this forum?!!

 

What the FAQs (I did read them but have brain fade) said about "empowerment" and this site is right...

[rory32]

is it acceptable to blow kisses as thank yous on this forum?!!

Perfectly okay

[cashins]

I've come up against Newmans twice.

 

Both times I sent them a CCA and both times they ran away. One of these was for a 90's Amex.

 

Good luck

 

David

[wishiwasrich]

Thank you too David

 

Dumb question but CCA goes to Newman? I was about to send it to Amex copy Newman....

 

What baffles me is that Amex are huge about their branding and yet they let people like this represent them? Actually I'm quite shocked at the whole retail financial services industry given my experiences in the last few months.... ok so I made some mistakes but some of the various ones my my banks and insurers are just atrocious

[rory32]

Dumb question but CCA goes to Newman?

Yes. It keeps them in the loop and under s175 of the Act they have a legal obligation to pass your request on to Amex.

[wishiwasrich]

Thanks again xx

 

cute cat btw

[ScarletPimpernel]

I can add nothing to the advice already given, but can say from experience (4 Amex accounts), that firstly none of the 'agreements' was valid, and secondly, that Newmans went away very quickly.

 

Amex like to maintain the pretence that their paperwork is legit, and I had RMA/NCO, Newmans, AIC (three times on each account), and finally Moorcroft, one chasing as the last was repulsed. Finally it seems that the message has sunk in and there has been complete radio silence for a couple of months.

 

So, once Newmans or Amex have sent you a risibly unenforceable CCA, come back, and we'll give you the letters you need to get rid of the parasites.

[wishiwasrich]

thank you again

[cashins]

I in fact have a risibly unenforceable Amex which came by why of RMA.

 

The original CCA was to Newmans who promptly dropped it like a hot brick. RMA forwarded a copy when I informed them the account was in dispute and on being told by me it's cr*p, returned it to Amex. Their letter also said American Express are aware of your dissatisfaction with the credit agreement and to contact them direct.

 

Now why on earth would I do that?

 

David

[wishiwasrich]

I have no objection to repaying the correct balance i.e. from the last Amex statement I think was January minus the amounts I have paid since (which is half of it) at the amount that was the minimum direct debit. Newmans refuse to accept this.

 

Thanks - letters going out tomorrow

 

I'm tempted to email one of them from an old email address to warn them the CCA and Telephone Harassment letters are coming to see if they back off (the email address has an auto reply saying it is old and rarely checked) as you all seem to be saying that Newmans won't know how to cope with it.

 

Is the account in dispute from the time they receive the CCA letter?

 

Thanks again

[rory32]

Is the account in dispute from the time they receive the CCA letter?

Yes. If you receive any threatograms from them from their threatomatic 2000 printer or any nasty phone calls after they receive your letters let us know and we'll help you deal with that.

[wishiwasrich]

Will do

 

I just sent Newmans a lovely polite email (from a disused address with an autoresponder saying emails sent here are not read) thanking them for pointing out yesterday (when I was trying to discover what terms they were under and how they were regulated) that I should "look us up then". I have pointed out that having taken their kind advice I discovered that I should send them a CCA request and Cease Harassment letter which they will receive recorded delivery in the next couple of working days...

 

with a little luck they will go back to the recording (they later claimed they were making when I said I was - until I pointed out there was no warning of this in advance) and someone will be in HEAPS of trouble.. I can but hope

 

Thanks again

[wishiwasrich]

by the way - am I right in thinking that if I put monies (however much I can afford) into a separate savings account 'in escrow' for Amex pending resolution of disputes rather than pay Newman this would be viewed favourably from a legal standpoint in the event it ever went to a hearing or similar?

 

If not, is there a way I can pay AMEX direct even if they dont' want me to?

 

Thanks again. I'm sure many sleep more easily due to this site and I'm definitely going to donate when funds allow. My husband says I'm noticeably happier already!

[rory32]

The fact that you are willing to come to a settlement would be seen as you being reasonable. If they took you to court while a valid dispute exists they would not be seen as being reasonable by the court. Court action should only be used as a final resort.

My husband says I'm noticeably happier already!

I bet he's relieved :)

[ScarletPimpernel]

by the way - am I right in thinking that if I put monies (however much I can afford) into a separate savings account 'in escrow' for Amex pending resolution of disputes rather than pay Newman this would be viewed favourably from a legal standpoint in the event it ever went to a hearing or similar?

 

If not, is there a way I can pay AMEX direct even if they dont' want me to?

 

 

 

I don't think it's necessary to prove that you put funds aside; if (and it's a big if), this ever went to court, you would only be ordered to make affordable payments. DCAs know this, so push for more before it gets too that stage.

 

If you make an offer to make repayments, however small, a DCA is obliged to pass the offer to their client (OFT Guidance). It may, then, be useful to ask Amex (in writing - never speak to them on the phone) to confirm that this happened (CPUTR prohibits omitting or hiding material fact, so if they lie they drop themselves in it). Also, if you've made an offer that's as much as you can afford, a Court would take a dim view of a creditor failing to accept it - they have a duty to try to avoid court action if possible.

 

If you want to pay Amex directly, get an old statement and get the bank details from the paying-in slip at the bottom. Then just set up a standing order (never use direct debit). If it's rejected (unlikely), you'll have a paper trail of evidence.

[wishiwasrich]

The first civil contact I've ever had from Newmans - response to my email as above (they cannot have received the letters yet).

 

Dear XXXXXXXXXXXX

 

Thank you for your e-mail the contents of which have been noted. It is disappointing that you have chosen to go down the route of a CCA 1974 request however for the avoidance of doubt please note the following:

 

Such a request is now commonplace in our market due to internet advice and is usually designed to claim requests for recovery of a said debt are illegal due to claims a debt is unenforcable.

 

The basis of these claims is failure to provide a true copy of an original agreement along with terms and conditions valid at the time of opening along with all updates. Further requests often include full historical statements despite all having been previously provided on a monthly basis.

 

Please note that whereas these documents were at one time a long process to retrieve the now commonplace CCA 1974 requests result in a swift turnaround. We have today requested all documents on your behalf ahead of receiving your formal request and these will be with you by return upon our receipt.

 

These will include a copy of your original application, all valid terms and conditions and the statement run of your account. Please note any attempt following receipt of these documents to claim your debt is unenforceable will be challenged by our specialist team within our Legal Department. With this in mind it is worth you noting that any such claim will be made more difficult on your part due to your continual acknowledgment of your debt with our client both in the form of payments and payment offers following the use and cancellation of your American Express Card.

 

In order to pre-empt your initial response back to us once you receive the above documents please note the following:

 

Sections 77 and 78 of the CCA state that a creditor must give a consumer a copy of their executed agreement within 12 working days of receiving a request in writing and the appropriate fee. The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (CNCD) specify that every copy of an executed agreement, security instrument or other copy referred to in the CCA and delivered or sent to a debtor under any provision of the Act shall be a true copy thereof. However, it is well established that a 'true copy' is not an exact copy.

Regulation 3(2) of the CNCD Regulations allows the following to be omitted from any copy:

 

a) Information in the original which relates to the debtor, hirer or surety or is included for the use of the creditor or owner only and which is not required to be included in the original agreement by the Act or by any regulations as to form and content. Therefore it is not necessary for the copy to reproduce, for example, details of the business or occupation of the debtor, the name and address of the employer or bank details of his income etc,

b) Any signature box, signature or date of signature.

 

Therefore there is no requirement for an organisation to send you a copy of the original agreement. They may simply send you a copy of the terms and conditions of the agreement. Further to this, sections 77 and 78 of the CCA do not apply once the agreement has ended; therefore a creditor does not have to supply you with an exact copy of the agreement at anytime.

Furthermore, the failure of a creditor to produce a copy of the signed credit agreement is not, on its own, evidence that your debt does not exist and therefore cannot be pursued by further means of litigation. If the credit grantor can supply some other evidence of the agreement and you have no evidence to contradict this then it is likely to be proper for the debt to continue to be pursued by any means seen fit by the creditor.

 

*****

 

I have found the correct bank details for Amex and will set up a payment for £100 each month. As no further temp work appears to be forthcoming I am going to sign back on as unemployed tomorrow hence £100 is generous in the circumstances. (I am not trying to avoid repaying the correct debt to Amex)

 

Interesting they refer to correspondence - I found my emails telling them precisely that the amount offered was explicitly only for the term of my temp contract and would have to be reduced on the completion of that contract.

 

Thanks again for all your help

[banker_rhymes_with]

Hello Wishiwasrich!

 

Well, they would say that, wouldn't they!

 

It would be interesting to hear their thoughts on s127(3) of the Consumer Credit Act 1974. They overlooked that, funnily enough.

 

The above is just a lot of DCA half-truths and statements of obvious fact, all expressed in a way that is intended to sound authoritive, and yet has the real purpose of slinking away from the inconvenient fact that they are roundly stuffed if they, or their Client, does not have an Original Copy of a Properly Executed Regulated Credit Agreement with which to Enforce this Agreement.

 

This must be the real, hard Copy, Signed in Ink Statutory Document. Crabby scans and cobbled together Photocopies simply will not do.

 

They can swiftly request, and get, all the Documents they like from their Client, but there is only one that matters. The rest is just irrelevent Bumf.

 

You must never, ever, forget that Amex were holding all of the Aces when they drew up the original Documentation. The Consumer Credit Act 1974 was there to ensure that they did this correctly, so that you, the Consumer holding just the Two of Clubs, was not seen off by them.

 

They hold a Consumer Credit Licence, so knew, or jolly well should've known, what their Responsibilities were. They also knew, or should've known, how important the Regulated Agreement was, and why it was, and remains vital that they look after it...assuming they had one in the first place.

 

Let's get back to the key basics:

 

No Enforceable Agreement = No Enforceable Debt.

 

They can whine, and drip, and moan all they like, but it won't change that position. That is their problem, they should not make it yours.

 

Here's why:

 

The courts have also clearly stated that if a creditor does not follow these obligations exactly then they are not entitled to the benefit of the contract:-

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

3.When this case was appealed to the House of Lords on a matter regarding the Human Rights Act (Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40), Lord Nicholls of Birkenhead said:-

 

49 The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan… when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.

 

I don't think this is over yet for you, despite the snake like Letter from Newmans. If you read it carefully, it is every bit as offensive as their Call Centre Monkey's Verbal Threats.

 

I hope this helps.

 

Cheers,

BRW

[wishiwasrich]

I am in awe at your knowledge!

 

Tell you something else odd - Amex sent me a new card on the renewal date earlier this year (I destroyed it but kept the letter it came with).

 

All I want is to pay the right amount sans stupid charges and definitely without unpleasantness. Newmans want one third more than the minimum payment as it was last Dec - I've repaid half since then.

 

I am tempted to copy all documents to Amex inc the emails saying how much I could pay when AND the letter they were sent after I returned from abroad asking if they could hold charges and accept a minimum amount (which they never acknowledged). This also quotes their representative who was most apologetic at waking me at 4 am local time who confirmed (as did Newmans on our first call) that my track record and credit rating with both Amex and generally was immaculate and the other card had been cleared to their satisfaction long since before I cancelled it. Presumably I should wait to see what happens from the first two letters but would the data protection request (SAR) reveal they sent me another card?

 

Thanks again

[banker_rhymes_with]

Hello Wishiwasrich!

 

I am in awe at your knowledge!

 

A significant amount of anything I know in these issues was learnt right here on CAG...I'm just a few hundred Thread Reading Man Hours ahead of you, that's all!

 

My feeling is that you must take a step back, and stick to your guns on the CCA Request and S.A.R - (Subject Access Request) stages.

 

If the CCA Request goes over the 12+2 Working Days, then you do not have to Pay them anything until such time as they do comply.

 

Likewise, a failure to come up with clear evidence that they do hold an Original Copy of a Properly Executed Agreement, means they also do not have any right to process your Data. No Default Notices, nothing should be handed over to DCA Pond Life like Newmans. It all should be recalled and wiped off the Credit Reference Agencies Database Records.

 

They won't do that in a jiffy, but that is where this will head if they fail to come up with the very Document that binds you to this alleged Debt, and bestows upon them the various Rights it allows, such as Enforcement and Data Processing.

 

Don't let them fob you off with an Application, as that is not the same thing unless it is Original, and is Signed by both you and them, and contains all of the Prescribed Terms. In that case, an Application can become an Agreement.

 

If, OTOH, it is just an Application: please let me have a Card, I hereby give you Data Protection Act consent to Search the Credit Reference Agencies (CRAs) to check my Data etc...

 

...then it's just an Application. It's not capable of Enforcing anything, and it certainly does not give them any Data Processing Rights whatsoever. It only gives them the limited consent to look, but they can't touch.

 

Updating your Data with the CRAs is Data Processing, and that is not something the Application was giving consent to do.

 

Presumably I should wait to see what happens from the first two letters but would the data protection request (S.A.R - (Subject Access Request)) reveal they sent me another card?

 

Yes, wait to see what happens. And, Yes, the S.A.R - (Subject Access Request) should reveal that they sent you another Card. It should, but if it does not, then you'll know that they are not giving you everyting requested. If not that, then what else are they hiding from you?

 

I hope this helps.

 

Cheers,

BRW

Edited July 10, 2008 by banker_rhymes_with
Still can't Spell.

[wishiwasrich]

So the reading glasses just acquired were a good investment then!??!

 

:)

 

Mind you I am at needing them at all

 

Thanks again

 

BTW I believe clicking on the scales gives you brownie points of some sort so I have done so