American express - CCA return + PPI Reclaim

[banker_rhymes_with]

Hello DD!

 

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?

 

It may be best to start your own Thread, but I can say that Amex would say the above, as that's what they want you to think.

 

However, there remains a big question mark if that was actually the case.

 

Amex will usually struggle to come up with an Original Copy of your alleged Agreement. That's often handy for them, as it means you cannot prove what was, or what was not on there.

 

Unfortunately for Amex, if they can't prove what was on the rear, then they will have a hard time proving you owe them anything.

 

But I suggest starting your own Thread to get detailed help.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Intree!

 

We have provided you with a copy of your signed Agreement. I reiterate that by signing the application form it is clear that you were entering into a credit agreement. The signature box contains the phrase "This is a credit Agreement regulated by the Consumer Credit Act 1974, sign it only if you want to be legally bound by its terms".

 

What Amex tend to overlook is a Regulated Agreement is binding on both sides. They are a huge and sophisticated financial bunch of right bankers, and were holding all of the Aces when they first created the Agreement. They had teams of Lawyers, it was always their Agreement and not yours.

 

That's where the Consumer Credit Act 1974 comes in, as that sets out what these huge and sophisticated bankers had to get right if they wanted to earn lots of interest from you, i.e. the Consumer. The Act made it clear what they must do, and the penalties for not doing it.

 

The Act made a big thing about the Prescribed Terms, because they are the key Terms that effectively say how much you are going to get stiffed for when using their nasty Card. Omit them from the actual Agreement, and there is no Agreement.

 

However, bankers were never fond of those Prescribed Terms because they really didn't want people to dwell on them, or else people just wouldn't sign up for their expensive Card.

 

Despite the Act, and despite their Teams of Lawyers who you would think could get this right for their Clients, many bankers, Amex included, somehow forgot to put the Prescribed Terms anywhere obvious, if at all.

 

They created lots of Application Forms where they made little or zero effort to highlight let alone include the Prescribed Terms. That's because the bankers really, really, really didn't want you to see them. They then shipped out thousands of these Application Forms, in all shapes and sizes.

 

They also made many silly mistakes with the layout and form of these Documents. Indeed, they were so lazy and/or keen to rush through the Applications that they thought it would be a wizard idea to combine the Application Forms with an Agreement. Why waste paper, after all?

 

Anyway, going back to their first paragraph:

 

The signature box contains the phrase "This is a credit Agreement regulated by the Consumer Credit Act 1974, sign it only if you want to be legally bound by its terms.

 

It's sadly ironic that if Amex had bothered to look a little further up, they'd have seen that they had used the wrong Heading if they wanted this Application Form to double as a Regulated Credit Card Agreement...they left out the word Card:

 

See: Consumer Credit Act (1974) and related Regulations

 

It has the wrong Heading if they want this Application Form to become a Credit Card Agreement. They've omitted the word Card. See Consumer Credit (Agreements) Regulations 1983 SI 1983/1553. Schedule 1 of SI 1983/1553 (see link above) says (1(d) applies to your Card):

 

(1) Subject to paragraph (2) below, a heading in one of the following forms of words--

 

(a) "Hire Purchase Agreement regulated by the Consumer Credit Act 1974";

 

(b) "Conditional Sale Agreement regulated by the Consumer Credit Act 1974";

 

© "Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974"; or

 

(d) "Credit Card Agreement regulated by the Consumer Credit Act 1974",as the case may require.

 

(2) If none of the headings in 1(a) to (d) above are applicable a heading in the following form of words--

 

"Credit Agreement regulated by the Consumer Credit Act 1974".

 

(3) Where the document and a pawn-receipt are combined, the words ", and Pawn Receipt," shall be inserted in the heading after the word

"Agreement".

 

(4) Where the document embodies an agreement of which at least one part is a credit agreement not regulated by the Act, the word "partly" shall be inserted before "regulated" unless the regulated and unregulated parts of the agreement are clearly separate.

 

(5) Where the credit is being secured on land the words "secured on" followed by the address of the land shall be inserted at the end of the

heading.

 

That alone may well render the alleged Agreement as being an improperly-executed regulated agreement and so enforceable against the debtor or hirer on an order of the court only (s65).

 

However, before Amex charges into Court, they need to be reminded that without the Prescribed Terms, a Court cannot enforce the alleged Agreement because of s127(3). Thankfully, your alleged Agreement was made in 1995, so it is covered by the Consumer Credit Act 1974 and not the Consumer Credit Act 2006.

 

Thus, without any Prescribed Terms, Amex have no Agreement. Any monies they passed over to you are effectively a gift, 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.

 

Amex won't like that one bit, and below is confirmation of this, because here's their moan trying to bluff past the above:

 

We are in no doubt as to the fact that the debt is genuinely owed by you, and believe that since your account was opened, you have been provided with all the necessary documents to evidence the debt. If you genuinely believe that the debt is not owed to us, we would ask you to provide details of the company to whom you believe the debt is owed to. Clearly it can not be the case that you have spent a significant amount of money on your credit card that has not been paid back, without there being a legal entity to which that money should be repaid.

 

Sorry to break the news Amex, but that's exactly the case if there is no Enforceable Agreement. How daft does a bank have to be to get an Agreement wrong? It was about all they had to get right to earn many thousands of pounds in interest.

 

In response to your request that we stop processing your personal data, we point out that by entering into the Agreement you consented to us exchanging information about you and your account with credit reference agencies. In any event, we are entitled to exchange information with credit reference agencies for the duration of the agreement and six years thereafter, because the processing is necessary for the purposes of legitimate interests pursued by us or the credit reference agencies and other financial institutions (see paragraph 6(1) of schedule 2 of the Data Protection Act 1998 ).

 

This is more Amex hot air. If all they have is an Application Form that has not made the jump to becoming a properly executed Regulated Credit Card Agreement, then any Data Consent you gave them would be in relation to your Application only. It would be a Consent to look at your Data, it was therefore never a Consent to touch or meddle in your Data. If the Application Form never made it as far as becoming an Agreement, then it gave them no right to fiddle about with your Data.

 

Amex are getting carried away with themselves, again. Also, the Data Protection Act 1998 didn't come out until, well, 1998 approx, which is a few years later than when you signed that Application Form in 1995. Not yet sure how that may help you, but it suggests there was no actual Data Consent if the Act didn't even exist at that time.

 

This is a view shared by the Information Commissioners Office (Information Commissioners Office), Which has explained that it takes "a wide view of the legitimate interest" and considers "that is in the interests of other creditors to make informed lending decisions". Moreover, referring to the Crowther Report and the Younger Committee on Privacy, the Information Commissioners Office has concluded that the sharing of account data with credit reference agencies for the duration of the contract and six years thereafter" ...would not appear to be in breach of the fifth principle (of the data protection act)". As such, there is no basis for your notice to us to cease processing your personal data.

 

What Contract would that be then?

 

If there's no properly executed Regulated Credit Card Agreement then Amex don't get to play with your Data. Full Stop. They should go back and delete anything nasty.

 

This is our last and final response and further correspondence received from you in relation to this matter, will be read and filed and not responded to.

 

Priceless!

 

Executive Relations senior management.

 

And what does that Title mean? I think it's just Amex Clap Trap big me up Scotty Employee Job Title Extrapolation!

 

Works like this:

 

Take a humdrum title like, say, Clerk, and stick a hosepipe up its bottom until it puffs up into something more impressive. Too little gas and you only end up with a manager, too much and you end up with a Vice President. I think the hosepipe must've come off on this one about half way inflated. A little bit more gas/wind and you'd have been sent the letter by a Vice President (whatever that is, they seem to have shed loads of them). It's a tricky business, because if they leave the hosepipe on too long, they end up with a Galactic Overlord banker, and that's something with serious wind.

 

Cheers,

BRW

[banker_rhymes_with]

Hello DD!

 

Do note that it's the Heading of the Agreement Section, not the Title in the Signature Box.

 

It's not a knock out blow, but damned good ammunition against Amex, to add to everything else you can find wrong.

 

Sorry if I'm repeating myself, but do take things nice and slowly, because letters allow you to do that.

 

Never, ever, rush a response to them. If you are not sure, then take another day. Run anything past the people on CAG.

 

Always, always, always draft your letters with the Judge in mind, even if it never makes it that far.

 

Be polite, clinical and accurate. Don't say too much, always keep the best things back, because you don't want to give them a heads up on your plans.

 

Anyway, I have a New Years bash to sort out, so I'm otta here!

 

Have a good one, see you all next year!

 

Cheers,

BRW

[banker_rhymes_with]

Hello Intree and DD!

 

One thing that many people overlook is to carry out an in depth analysis of the alleged Debt.

 

The banks have spent hundreds of years banging away at the concept of Debt, and how it can only ever mean one thing...you owe them. However, as with many things the banks have touched, they've devalued the meaning of that word.

 

If I borrow a fiver from a mate in the Pub, that's a true Debt. I owe it, and I will pay it back.

 

But if you examine, say, a Credit Card alleged Debt, you'll notice that the bankers are almost hysterical about convincing you the whole alleged Debt is owed by you to them. They use sound bites like:

 

You've spent it, now you must pay it back.

 

Or...

 

If you genuinely believe that the debt is not owed to us, we would ask you to provide details of the company to whom you believe the debt is owed to.

 

Or...

 

Clearly it can not be the case that you have spent a significant amount of money on your credit card that has not been paid back, without there being a legal entity to which that money should be repaid.

 

Or...

 

Mr/Mrs X has spent a considerable amount of money using this Card.

 

...and many, many other variations on the same theme. They just cannot risk letting us Peasants question their favourite word Debt, so will throw in sound bites like that at every opportunity.

 

The sad thing is, many people start to believe them, and don't even think to question the validity or the actual break down of the alleged Debt.

 

I see many on CAG saying things like:

 

I know I've spent it, and so I know I must Pay this back. I'm not trying to get out of Paying my Debts, but I am having trouble doing so at the moment.

 

These are clearly decent honest people, who still respect and value the word Debt. However, in many cases, the Debt they think they owe, has often been manipulated into being.

 

OK, my point is that I urge everyone with, say, an alleged Credit Card Debt, to spend some time looking at the figures. By that I don't mean peering at every transaction, because all that'll do is get you lost in the detail.

 

No, take a step back and try to examine the Big Numbers.

 

To do this, you'll ideally need either a Spreadsheet or a basic Home Accounts Package like, say, MS Money or Intuit Quicken (that's been phased out, but still works well if you can get a copy).

 

Enter every transaction, but don't waste time on your Spending, just mark all that you Spent as Spending/Expenditure.

 

Below is a Post I made to try and help someone else out with a Default Notice, but I think you'll get the idea:

 

[The parts in Grey are what most people don't know until they start to analyse their own figures.]

 

The Big Numbers

 

Now you need to gather the missing bits between when you first signed up to what you thought was an Agreement, and the above Date of Termination that ended the alleged Agreement.

 

For example:

 

========================= =====

 

XX/XX/XXXX = The alleged Agreement (TBA)

 

--> A Total of all Spending/Purchases (TBA)

 

--> B Total of all Interest Charged (TBA)

 

--> C Total of any Unlawful Charges (TBA)

 

--> D Total of all valid Charges (TBA)

 

--> E Total of all Repayments (TBA)

 

 

The Balance of the Agreement = (A + B + C + D) - E

 

 

The above Balance can be analysed further:

 

--> F Total of Missed Payments/Arrears (TBA)

 

--> P1 = Total Payments due before Termination.

 

This total P1 will be equal to F if there are no unlawful charges, or it will be equal to F minus C if there are unlawful charges.

 

--> P2 = Total Payments due in the Future while the Agreement is live, or due for Payment upon lawful Termination.

 

This total P2 will be the Balance of Agreement less P1.

 

XX/XX/2008 = The Default Notice (TBA)

 

The Default Notice should state P1 as being the amount you needed to Pay to remedy the default that caused the Creditor to issue a Default Notice. The amount P1 needs to be accurate. P1 must equal F for that to be the case. If however there are unlawful charges (C), then P1 cannot equal F, and the Default Notice is then highly likely to be invalid on that basis alone. The degree of error will determine if the Notice is invalid, an error greater than 38.71% will exceed the Default Notice error noted in Woodchester v Swayne and Co 1998, so can be considered invalid based on that precedent. Below 38.71% margin for error, and there will be a debate if the error is significant enough to invalidate the Default Notice, or if the error is just de minimis.

 

de minimis = de minimis non curat lex, a Latin phrase meaning the Law does not care about very small matters. This is not very helpful, and does not actually say how small an error needs to be before it can be considered de minimis.

 

The Default Notice should be set out in the Prescribed way.

 

The Default Notice should allow you 14 Clear Days (assuming it was issued in 2008 ).

 

XX/XX/2008 = The Date of Termination

 

========================= =====

 

 

How can the above be used to help?

 

You are missing all of the bits in Grey above, but once you gather them, then you can proceed as follows:

 

If the Creditor has a valid Agreement, and they issue a valid Default Notice that complied with s88, and then Terminated the Agreement once you failed to remedy the default outlined in the Default Notice, then s87 allows them to seek Full Payment of the whole Balance of the Agreement. That will be made up of Payments Due before Termination (P1), plus Payments that were only due after lawful Termination (P2).

 

However, if the Creditor does not have a valid Agreement, then there may not be a Debt in the first place. So, that is a key issue you need to try and establish via your s78(1) Request and via your S.A.R., or via CPR 31.16 before issue of a Court Claim by a bank, or via CPR 31.14 after issue of a Court Claim by a bank.

 

If they do have a valid Agreement, then the way they Terminated the Agreement is going to be very important indeed.

 

A lawful Termination entitles them to seek full Payment of the whole Balance of the Agreement (P1 + P2).

 

Whereas an unlawful Termination should limit them to being able to seek Payment of only P1 because they will not then be able to enjoy the benefits of s87. Remember too that P1 has to be accurate, if there are unlawful charges (C), then they will reduce P1, and could give rise to a Refund Claim if C is greater than P1.

 

At the moment, only the Date of Termination is probably known, and the Date for that should be on, or just before, the above letter from BOS DCA. Be aware that the actual Date of Termination could be a few days before their letter, as it could depend on when the Creditor marked your file as being Terminated. Hopefully, your S.A.R. will show that date more accurately but, for now, the Date on the BOS DCA letter that confirmed your alleged Agreement had been Terminated is accurate enough.

 

The items in grey are what you ought now to try and establish, so that you can fill in the blanks until you have a good overview of the alleged Agreement from Day One until the Date of Termination.

 

If you still have all of your Statements, then the items A to E above can be established, albeit that it may take you a little while to go through the Statements in order to pull out the main figures.

 

If you do not have your Statements, then you'll need to wait for your S.A.R. to come back which should hopefully provide the missing figures.

 

The big numbers are important, otherwise you won't know where you are with the alleged Debt. Once you know where you are, you can then examine their figures to see if they have made any howling errors!

 

Don't get bogged down in the detail, it's just the main Categories that you need to know. For example, if you subtract E from A, that will tell you if you've spent more than you have ever repaid, or if you have repaid more then you have ever spent. In many Credit Card examples I've looked at, people are often quite shocked to find that they have actually repaid more than they have ever spent, so the alleged Debt that now remains is effectively the sum total of the Creditor's Interest and Charges.

 

If they do not have a valid Agreement, then there is no Debt. This is because you are not liable for that Interest or those Charges unless there is an Agreement that binds you to paying them in the first place.

 

If they do have a valid Agreement, then there is a Debt, or at least there was a Debt prior to Termination.

 

How they went about Termination is key, because it can make the difference between you owing the whole Balance, or just the Arrears, or quite possibly them owing you something depending on how the big numbers above work out.

 

This is a little complex, but if you work through what I have said above, it may start to make sense.

 

Once you've done the above, you may be shocked at what you do actually owe. Many people who have had a Credit Card for many years have often repaid more then they have ever Spent.

 

Thus, if the bank never had an Enforceable Agreement from the outset, you owe them nothing. There is no Debt. You have may well have repaid more than you ever spent, and they had no Right to charge you any Interest.

 

The alleged Debt that remains is, effectively, the sum total of all their Charges and Interest.

 

OK, for some people they may well have spent more than they have repaid, and that applies to me on one my Cards but, on all the others, the reverse is the case. I've repaid far more then I've ever spent.

 

If the bank has no Agreement worth squat then, in reality, any excess of repayments over expenditure ought really to be repaid by the bank back to the Consumer.

 

As an example, on one of my Cards, they are after 22k now, and yet I know that over the lifetime of the Card, I've spent 72k but have repaid them over 78k. When I sent them a s78(1) to find out what Agreement they had, I only owed them 16k, allegedly! That 16k has since been inflated to 22k since I started arguing with them...yes, they've added over 6k in Penalty Interest, as they ramped my Rates up while arguing over the alleged Agreement!

 

It's almost comical when you pause to consider that I've paid them back maybe 4-5k more than I ever spent, and they have no Agreement worth squat. The 22k alleged Debt is no Debt in my eyes, and so I will fight these idiots all the way.

 

Fighting a bank once you know the breakdown of the alleged Debt does get much easier when you find out the bank may well owe you money, not the other way around!

 

I hope this helps.

 

Cheers,

BRW

[banker_rhymes_with]

Hello DD!

 

I'm still trying to find out what was actually on the back of my 60 second application form. I've just been told that the front of the application is internally inconsistent - personal info box referring to para overleaf, but Credit Agreement referring to T&Cs being part of the agreement, no mention of overleaf at all, which really makes me think they were on a separate pamphlet. That is my missing link at the moment. I would so love to know that what they have sent isn't what it appears to be at all.

 

Without the Original Agreement, it's virtually impossible to know what was on the back of your Application Form.

 

The banks produced so many Application Forms that they don't seem to know for sure, and you can bet your bottom dollar that they'll say whatever they want to say was on the back.

 

They won't say there was nothing on the back, so there's no point asking them that question!

 

Even if someone on CAG has an Original Application Form that they never sent back, and even if that is identical to yours, that's still not 100% proof of what was, or was not, on the back of yours. Printing Presses do make mistakes too, so what if they Printed a batch, or even one, with nothing on the back.

 

It does happen. There are even some currency notes that are mis-printed, not many, given the checks that are made, but every now and again a batch of, say, ten pound notes will slip out missing, say, the serial number or similar. If it can happen there, it can certainly happen on a Printing Press churning out multiple Press Runs of Application Forms. Maybe the bloke doing the Printing that day hung one on the night before and neglected to put the Sheets back though to Print on the other side?

 

For example, when was yours Printed on Press? How can you tell if yours was on a Print Run that had some bumf on the back, or was yours from an earlier Print Run that had nothing on the back.

 

Even if a bank comes up with a blank Application Form from around that time, how can anyone be sure it wasn't actually Printed last week?

 

I do not trust bankers, they are just as honest and/or dishonest as anyone else - and probably tend more towards the latter, bearing in mind money is involved!

 

I would not put it past a banker to rustle up some new blank Application Forms to wave around in Court to show what something would've looked like, because he's some we didn't send out (despite the fact that the ink has only just dried on them)!

 

Thus, you must not let them steer the issue away from them needing to have the Original Agreement. It's vital to their case, and they will do all they can to water down the issue if given half a chance.

 

Cheers,

BRW

Edited January 2, 2009 by banker_rhymes_with
Added details.