American Express & DVD

[Guest dvdriley]

Thanks 42 man, did you look at the application?

[42man]

I did but this a bit of a grey area, as there is no High Court precedent in electronic signatures.....

[Guest dvdriley]

it just says " card holder information" no mention of it being regulated under the cca act. It even lists my passwords

[Guest dvdriley]

bump.... really worried

[42man]

Thank you for your response to my request under the Consumer Credit Act section 78.

 

I am pleased to see that you confirm this as a true copy of the original agreement executed by yourselves on the XXXXX.

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer credit Act and is therefore unenforceable under section 127(3) of the same act.

 

 

You had until (date here) to provide me with the true copy I requested. After that date you entered into default of my request and I am therefore advising that the matter is now in dispute . Whilst the matter is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, make any further charges to the account or pass the account to anybody else.

Please note you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies including any defaults. Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’, you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you fail to respond within 21 days, I will expect that this means you agree to remove all such data.

[Guest dvdriley]

Thanks 42, I have already sent that letter , they replied with a default notice and sais they have complied.... what now

[Guest dvdriley]

bump

[Guest dvdriley]

AMEX have sent me this as a CCA.

 

it is headed e application. Contains all my personal info including passwords. It is bascaclly a print pout of the application screen.

 

In addition they have sent a 14 page cca with no details of mine on it or signature.

 

Their covering letter " our second final response"" ) says I would have ticked the box agreeing to their terms. WOULD HAVE, so where is the copy.

 

Is what they have sent enforceable.

 

http://i518.photobucket.com/albums/u348/dvdriley/amexnov.jpg

[spamheed]

Was this a card that was applied for online?

 

if so then the rules on signatures may not apply.

 

When did you take out the card?

[Guest dvdriley]

Taken 2006. I accept what you say about the signature but I also have a card with MBNA who sent a copy cca showing i had ticked a box confirming agreement to terms.

 

AMEX document is merely an appplication form and the 14 page cca is generic without any of my details on it

[spamheed]

I agree fully that this in no way a CCA, it contains no prescribed terms at all and appears to be a printout of a computer record.

 

There must be certain information on any agreement and according to OFT

In the case of credit agreements, the required information is:

• nature of the agreement
  
• parties to the agreement
  
• key financial information (including the amount of credit or the credit limit, the duration of the agreement, the APR, the total amount payable, and the amounts and timing of repayments)
  
• other financial information (including a description and cash price of goods or services, any advance payments, the total charge for credit, the rate of interest, how and when interest charges are calculated and applied, the order of allocation of payments, and variable rates and charges)
  
• key Information (including default or other charges, any security provided by the borrower, and prescribed statements of the protection and remedies available to the borrower), and
  
• a signature box, and other form of consent where applicable.
  

I don't see any of this on the form that they've sent you and as such it would be completely unenforceable

[Guest dvdriley]

Thanks, and in respect of the generic 14 page cca, it does contain even contain my name and address or any info in respect of me. I assume this will also be unenforceable.

 

I have RMA DCA on my back so i just wanted to be sure of my facts

[spamheed]

If there is nothing to establish that a relationship exists between you and the creditor, then what exactly are they trying to enforce? they could use that exact copy to pursue anyone at all.

 

Whatever they are relying on to enforce the debt should clearly state who they are, who you are and what you owe, if it doesn't even contain this, then how can you or they be certain that a. they are pursuing the correct person and b. the amount they are pursuing is correct.

 

It doesn't take a court to work this one out

[Guest dvdriley]

thanks so much, i will continue to ignore them and wait for court papers

[Guest dvdriley]

On Nov 12th Amex sent a default notice served under section 87(1) of the CCA Act 1974. It gives me 14 days from the date of the letter to pay up.

 

Should it not be from the date of service??.

 

A second default notice then arrived on 28th Nov as further charges had been added to the account. Thois is issued under Section 86(e). It does not mention when I have to pay by.

 

Today I recieved a notite of cancelleation.

 

Are the default notices correct.

 

The CCa,s are rubbish by the way

[Guest dvdriley]

bump

[banker_rhymes_with]

Hello Dvdriley!

 

OK, I think the 2nd Notice is probably one of the new Statements that they have to issue when default charges are added, i.e. it's probably not a Default Notice, just a Letter to say a default charge has been added.

 

If that is indeed the case, then the main Default Notice, usually headed that it has been issued under s87(1), is the only one they have sent. So, that is the one you need to concentrate upon.

 

If they have said you have 14 Days from the Date of the Notice, then they have made it invalid, because they have not allowed you 14 Clear Days from the Date of Service.

 

You are quite correct that it is Date of Service that matters...it's 14 Clear Days from then.

 

Next issue is did you keep the Envelope it was sent in? Don't worry if not, but that can help if it has any marks to suggest on what Day it was Posted on. For example, they may've not sent it until the following Day, so the Posting is on that Day, not the Day they wrote it.

 

If Posted 1st Class, then Date of Service is 2 Working Days after that.

 

Likewise, if the Envelope says they Posted it 2nd Class...then Date of Service is 4 Working Days after that!

 

But as they have messed up and only allowed 14 Days from the Date of the Notice, how they Posted it is less of an issue, as they have failed to allow the Statutory Time to remedy the alleged default.

 

This is about the best reference that can be used when talking about the Date of Service for general Letters and Notices:

 

Click here to read the full details (see Appendix 3.6 when there).

 

Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post

 

Appendix 3.6 - Service of documents by post

 

All Text Amended

1. Interpretation Act 1978, Section 7

 

This states:-

 

"7. Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

 

Service of Documents - First and Second Class Mail

 

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

 

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

 

(a) in the case of first class mail, on the second working day after posting;

 

(b) in the case of second class mail, on the fourth working day after posting.

 

"Working days" are Monday to Friday, excluding any bank holiday.

 

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

 

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

This is why keeping the Envelopes can prove vital, especially if they used 2nd Class Post!

 

Cheers,

BRW

[Guest dvdriley]

OK, I think the 2nd Notice is probably one of the new Statements that they have to issue when default charges are added, i.e. it's probably not a Default Notice, just a Letter to say a default charge has been added. CORRECT

 

The main one says " pay witin 14 days from the date of this default notice"

 

What shoud i do now. I have got the envelope

[banker_rhymes_with]

Hello Dvdriley!

 

What shoud i do now. I have got the envelope

 

Is that the Envelope that the Default Notice came in? i.e. I didn't mean the one the default charge notice came in.

 

If so, that is also good. Even better if it's 2nd Class!

 

But the next step is harder, because all you really can do is sit back now and await their next move.

 

The key events are:

 

1. They issued an invalid Default Notice.

 

2. They Terminated.

 

So, they cannot now go back and fix the invalid Default Notice.

 

All they can ask for now is the Arrears that were owed before Termination...assuming they can prove there was an Agreement, which seems less likely if they do not have an Agreement worth squat.

 

Thus, while you are waiting, see if you can pick any other holes in that Default Notice, for example, was it set out in the Prescribed way, using the correct wording. Was the Sum they Requested valid, or was that inaccurate if it included Unlawful Charges etc.

 

Then start working out if they owe you anything. Unlawful Charges, mis-sold PPI, perhaps a claim for Harassment if they bothered you via Phone.

 

Cheers,

BRW

[Guest dvdriley]

thank you, i will keep in touch if thats ok

[banker_rhymes_with]

Hello dvdriley!

 

thank you, i will keep in touch if thats ok

 

No problem, remember you can always PM a member of the Site Team if you need urgent help and can't get any replies to your Thread.

 

CAG is so big now, that some Threads/Posts can get missed, so do BUMP if you need to.

 

Cheers,

BRW

[Guest dvdriley]

All they can ask for now is the Arrears that were owed before Termination...assuming they can prove there was an Agreement, which seems less likely if they do not have an Agreement worth squat.

 

when you say arrears, you mean all the money i owe them? or the minimum monthly payments I should have made

[banker_rhymes_with]

Hello Dvdriley!

 

when you say arrears, you mean all the money i owe them? or the minimum monthly payments I should have made

 

Just what was outstanding before Termination, so that would only be the Payments you missed, not the whole Balance.

 

To explain that, the original Agreement (assuming there ever was one), would've been to let you build up a Balance on the Card, that you would be allowed to Pay off over time via Monthly Payments.

 

In return for all of the Interest Amex could charge for this, they accepted this is how things would work. They'd set a Credit Limit, they'd set an Interest Rate, and they'd say how much you had to Pay each Month as a minimum to keep your side of the Agreement.

 

The above are the Prescribed Terms, so that's why they have to be contained within the four corners of the Agreement and that must be Signed by you to make it Enforceable. The Original Copy is Enforceable, I hasten to add, not a bunch of crabby Scans claiming to be an Agreement.

 

So, provided things all worked as planned, you got an Amex Card to play with, and they enjoyed the benefits of your Monthly Payments.

 

This could go on forever, although the main limit is how long you can stay alive for, as it will be assumed Amex will go on for ever, as they are a bank not a living breathing person.

 

This is why the Consumer Credit Act 1974 doesn't mention any obvious way for a bank to pull out of the Agreement if things are going well, as why should they want to? The assumption being that they will be quite happy to earn interest for as long as you stay alive to pay it.

 

OK, when things go wrong, then that is when the Creditor has a get out clause within the CCA 1974. That is covered by s87/s88.

 

Let's imagine that you have to Pay, say, £100 a Month, and the Balance is £5,000.

 

If you miss a Month, then you go into Arrears straight away, but only by what you missed, i.e. £100.

 

Amex will then start moaning.

 

If you miss the next 2 Months, then the Arrears start to build up, and you now owe £300 (probably more, but this is just an example).

 

Now, at this point, Amex may decide they've had enough, and should issue you with a Default Notice, saying how bad you have been, and they want you to catch up and Pay the £300 of Arrears within 14 Clear Days (assuming the Default Notice is valid).

 

At this point, only the Arrears are due for Payment, the main Balance is not due, as whilst the Agreement is live, you are allowed to Pay that off over a long time...Payments stretching out into the future.

 

If you don't Pay, then after the 14 Days, s87 allows them to demand the whole Balance of around £5,200 (i.e. the £5,000 plus interest not Paid in the 3 Months).

 

At that point, the Agreement to Pay things off over time is ended, and due to s87 they are now entitled to demand the whole lot in one go. Thus, asking for the whole Balance is the same as Terminating, as it clearly means the Agreement is dead.

 

They can also Terminate via Letter, which is more to the point but is the same as Terminating by demanding the whole Balance.

 

At this stage they can say Pay us the lot, we want £5,200 now, or we will take you to Court.

 

OK, now, what if they screwed the pooch on the Default Notice?

 

Let's say they got the 14 Days wrong, or the Arrears Balance or they made a mess of the layout...or all three!

 

If they then go ahead to Terminate via Letter and/or Terminate by asking for the whole Balance, then the moment they do, the Agreement is ended.

 

However, without a valid Default Notice, they have just thrown away the benefits of s87. They've just blown any Right, ever, to ask for the Balance.

 

But they can ask for what was due before Termination, so you'd be left with a liability of £300.

 

Does that make sense now?

 

Cheers,

BRW

[Guest dvdriley]

fanatastic explaination, I fully understand.

 

Thanks

[Von Greenbach]

Does that make sense now?

Fantastic explanation,

 

One question if I may, if the DN is wrong making it invalid, does this STOP them taking any court action?

 

*NR are trying to obtain a CO*

 

This is my DN

 

http://i372.photobucket.com/albums/oo166/WhatsUp_bucket/NR.jpg

Edited December 7, 2008 by Von Greenbach
Link Added