American express - CCA return + PPI Reclaim

[intree]

Thanks for your responses to date, I have a question:

 

Today i recieved 2 letters from RMA resolve enclosing a signed application form from 1995, this just has very limited details about my employment etc, and no signatures on it from AMEX.

 

The letters were dated 1 and 3 October 2008, and states:

 

 

Thank you for your letter.

 

We wish to inform you that NCO Europe Ltd is a global supplier to the etc etc ..............

 

We therefore offer you our personal assurances that correspondence such as yours is taken seriously.

 

Please find enclosed a copy of the signed agreement. We are unable to send you any deed of assignment as we have not been assigned the debt, But are acting on behalf of American Express upon instruction.

 

We trust that all of the issues raised have been addressed to your satisfaction, should you have any further concerns, please do not hesitate to contact us by phone on etc etc.

 

Alternatively you may write to us.

 

Yours sincerely

F&OBO NCO EUROPE

 

OPERATIONS TEAM MANAGER.

 

Please can you advise what i now need to do as out of 5 CCA requests only RAM have replied the others have not bothered but 4 have cashed the cheques sent by my son.

 

THEY ARE

 

NORTHERN ROCK

CAPITAL ONE

CONSUMER CREDIT FINANCE

EGG

BARCLAYCARD

 

Does anyone have any idea, if any of these Companies would possibly have the information requested, there 12 + 2 days expires Tomorrow from looking through my records.

 

Creation Finance have also stated they will apply for a CCJ, despite a request made to them in August 2008, In September they passed the debt to their Solicitors - Greenhaulghs.......

[42man]

Intree...it would be useful if you could scan/photo what they have sent you and post it up here (minus the personal details of course) use Image hosting, free photo sharing & video sharing at Photobucket (free)...

 

This may also help you...

 

CCA RULES FOR PRESCRIBED TERMS

CONSUMER CREDIT ACT

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Prescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

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-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) 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.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment
  

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreements executed before that date.

[intree]

Thanks for your response: Please find attached the AMEX agreement, please advise what I should now do if you can, as I would be most gratefulAMEX.pdf

[42man]

No prescribed terms there.....!! unenforceable in my opinion....

 

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

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.

 

[ScarletPimpernel]

Seen. As is so often the case, Amex's 'agreement' is as worthwhile as a Labour government promise.

 

However, be prepared for Amex to be persistent - they appear to press on regardless of such minor irritations as the law. I found the best way to deal with them was to respond to each DCA they tried with one letter and then ignore. Be aware that it is not unknown for Amex to instruct solicitors to issue a claim in court - easily defended, but they hope you won't notice or defend.

[intree]

Hi 42man Thanks for your response, I have also received one from Northern Rock, which is posted under the Northern Rock Thread, thus far, RMA have said the loan is still with Amex, what would be my next step in this matter and do I need to send a Account in dispute notice to them.

 

Any advice on the others in my debt history - EGG, CONSUMER FINANCE, CAP ONE, BARCLAYS. NONE HAVE RESPONDED TO my requests for S.A.R, disclosure as yet.

 

Thanks

[intree]

thanks Scarletpimpernel, feel abit better after reading that, as we are worried sick about this whole thing

 

This site has given us confidence to face up to these bullies...

[nuke em]

Hi 42man & scarlet, could you please have a gander at my amex thread and the stuff i received from amex

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/163044-nuke-em-ccaing-amex.html thanks

[intree]

I was paying through a DMP to RMA reduced payments on a amex credit card.

 

CCa'd them (RMA) provided a unsigned copy of a application form.

 

Sent letter of dispute and requested all data be removed etc (as per templates from this website)

 

Letter comes back not from RMA but AMEX confirming that they are investigating the points raised in the dispute letter and will be back to me within 28 days, also enclose their complaints procedure and FSA address.

 

So dont know what the heck they will now come back with....

 

Any advice pls

[42man]

Just merging the threads for you Intree....keep us posted !!

[intree]

PLEASE CAN ANYONE ADVISE ME:

 

PAYMENTS ARE CONTINUING THROUGH DMP - BUT NEED TO KNOW WHERE I NOW STAND HERE ARE THE SCANS:

 

 

 

AMEX.pdf

 

Also attached were terms and conditions from 2008 - printed from a recent copy of them 2008.

 

No statements and nothing else at all - Please advise what I need to write back as they state this is not their final response in this matter, before going to the FOS.

[intree]

clearer attachments :

 

I am unable to load Pdf files through the CAG at the moment so please stay with me.

[42man]

How old is the account ? Have they sent you current terms ?

[intree]

Hi 42man - I will write down exactly what its says in their letter to me - they included T&Cs from 2008 and no statements or anything, the agreement (application form as 1 above was signed by me alone).

 

Here is the contents of the letter they sent as I can not post it for some reason in PDF -

 

American express

etc....

 

 

Your Request

 

In your letter dated xx/xx/2008 you have requested the following:

 

1. A copy of the contract that binds both parties.

 

 

Our response in Compliance with the Consumer Credit Act 1974 ("CCA 1974)

 

We do not understand the request you have made in points 1 above, but enclose for your information:

 

1. A copy of your original signed application form (the "AGREEMENT")

 

2. Acopy of the oldest terms and conditions we hold for your account. The Original terms and conditions are no longer maintained on our system, but the set provided is substantively the same as the original and should be suitable for your present purposes; and

 

3. A copy of the latest terms and conditions applicable to your account.

 

We have not included a copy of your card statements, on the assumption that you already have originals in your possesion. The card statements are evidence of the debt and verification of our claim against your. In compliance with Sec 78 CCA 1974, the statements show for the period of the agreement:

 

a) the state of your account

b) the amount currently payable by you, and

c) the amounts and due dates of any payments which will later become payable by you.

 

 

page 2........

 

 

The Agreement is signed by you and constitutes your acceptance of the terms and conditions of the account. Your subsequent use of the Account demonstrates your continued acceptance of the terms and conditions and your willingness to be bound by them.

 

We have been advised that the Agreement can only be unenforceable if a) it were not signed by you, or b) it did not contain the prescribed terms as set out in Schedule 6 CCA 1974. In summary, the terms required for a running account credit agreement are:

 

1. A term stating the credit limit or the manner in which it will be determined or that there is no credit limit.

 

2. A term stating the rate of any interest on the credit to be provided under the agreement;

 

3. 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:

 

a) number of payments

b)amount of repayments

c)frequency and timing of payments

d)date of payments

e)the manner in which any of the above may be determined; or any other way, and any power of the creditor to vary what is payable.

 

We trust that this response is satisfactory. If you are of the view that this does not meet your request, we we would ask you to provide us with clarification of your requests, at points 1 and 2 on the previous page, and the legal basis upon which they are founded. American Express makes every effort to respond fully to customers' reasonable inquiries, but is unable to offer any further assistance in this instance as it is not clear what additional information is being sought..

 

Signed

 

Credit Relations.

 

?

 

I have made payments via cccs for the last 2 years.........debt is 8k.

 

I have no statements, I really dont know what they are now asking fir from me, as I thought the CCA request was quite clear, it was pasted from CAG.....................I ATTACH THE AGREEMENT AT POST 1 ABOVE

 

THANKS FOR YOUR HELP.

[42man]

Edit this and send recorded -

 

Send this

 

 

 

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

[intree]

Thanks as always 42man - may god be with you always

[pt2537]

 

We have been advised that the Agreement can only be unenforceable if a) it were not signed by you, or b) it did not contain the prescribed terms as set out in Schedule 6 CCA 1974. In summary, the terms required for a running account credit agreement are:

 

 

 

What utter rubbish, for starters , the prescribed terms are set out in schedule 6 column 2 of Consumer Credit Agreements Regulations 1983 (the jackasses)

 

secondly those are not the only reasons an agreement can be unenforceable, far from it, section 64 / 127(4) for starters then there is the provisions of section 127(1) and also 127(2)

 

they are clearly misinformed and woefully off the mark,

 

utterly unbelieveable that a company the size of amex would be so misinformed

[intree]

Thanks for the responses guys the letter is on its way to them Recorded delivery tomorrow.

 

The account was opened in 1994.

 

I will keep all you guys posted once they respond back to us.

 

Thanks again

[intree]

I would be grateful for any advice on the following letter which was received from AMEX as a final response :

 

 

Dear Mr xxxxxxxxxx

 

Thank you for your letter dated November 2008, I write further to our letter sent to you on 03 November 2008.

 

I enclose further copies of :

 

• Your signed and dated application form (The agreement)
  
• The last statement issued prior your account closing
  
• Copies of the latest Terms and Conditions
  

Our response in compliance with the CCA Act 1974.

 

The card statements are evidence of the balance outstanding. In compliance withg Sec 78 CCA 1974, the statements show:

• The state of the Account.
  
• The amount currently payabale.
  
• The amount and due date of any payment which will later become payable by you.
  

The agreemet is signed and dated by you and constitues your acceptance of the Terms and conditions of the account at that time. Your subsequent use of the account, demonstrates, your continued acceptance of the Terms and conditions and your willingness to be bound by them. The signature box contains this phrase "This is a Credit Agreement regulated by the Consumer credit Act 1974, sign only if you want to be legally bound by its terms"

 

The original terms and conditions are no longer maintained on our system, but the set enclosed are substantively the same as the originals and should be suitable for your present purpose.

 

You refer to your accounts being "in dispute". However the OFT Guidance (to which your previous correspondence refers), states:

 

"By disputed" we mean genuinely disputed. We are not seeking to protect "Wont pays" but those who are being pursued for a debt they do not owe or genuinely believe they do not owe. Debt collectors can show that the debt is due and that any dispute has been looked into and the debt confirmed will not be in breach of this provision"

 

We have made every effort to respond fully to your request where appropriate and I hope that our correspondence has allayed any concerns you may have in relation to your signed agreement with us.

 

In the meantime, your account remains outstanding. The account will remain with our external agency RMA, who are best placed to assist you with a repayment plan.

 

Finally we do not believe that we can assist you any more that we have already done and therefore ask that you direct any ongoing grievances in this matter to the Financial Ombusdman Service, details of which are enclosed in the attched booklet.

 

Yours sincerly

 

AE

 

Executive Customer Relations Manager

[42man]

Threads merged...

[intree]

please can anyone give some legal advice in this matter.

 

Thanks

[42man]

Well you could take them to court - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/115280-useful-information.html

 

Or wait until they take you to court and then challenge them....you could argue your points forever, but they will insist they are correct...

[Viscount Stair]

Creation Finance have also stated they will apply for a CCJ, despite a request made to them in August 2008, In September they passed the debt to their Solicitors - Greenhaulghs.......

 

Would that be Greenhalghs the firm of solicitors with the silly natural history themed website whom the OFT confirmed to the BBC were breaking the Debt Collection Guidelines (but appear to have done nothing else)?

 

One more serious suggestion:

 

When next you have occasion to write to Greenhalghs, remember to use the three scariest words in any solicitor's vocabulary (trust me on this one).

 

The words are "Wasted Costs Order".

 

Point out that, if they bring a case that is obviously without merit because of the complete defence open to you of which they are or ought to be aware, you will request the court to impose the appropriate costs consequences against their clients and reserve the right to apply for a Wasted Costs Order against Greenhalghs itself.

 

You would not be guaranteed to get one but solicitors fight shy of WCOs because they strike directly against the underlying principle upon which the profession is founded: namely, that the lawyer is meant to profit whichever way the case goes.

[Monty2007]

Amex will issue proceedings, no doubt about that. You are holding all the aces though!

 

I bet you get Brachers!

[Desperate Daniella]

I requested by CCA from amex and was sent a copy of my 60-second application form which I have signed, although they have not. The terms and conditions they sent were apparently on the back of the form I signed. Is this okay, or do they have to be on the same page?

 

Thanks.