Amex Credit Card Application From Enforceable?

[Yeats]

Hi all.

What do you make of this Application Form/CCA?

Doesn't appear to have the prescribed Terms on and the T&C were just A4 copies in the envelope (no evidence of the year they cover), with no apparent link to the Application Form.

Thanks,

yeats

 

[ScarletPimpernel]

The complete absence of prescribed terms suggests that it is entirely unenforceable, as so often the case with Amex.

[Yeats]

I thought as much.

Thanks ScarletPimpernel.

yeats

[Desperate Daniella]

Hi Yeats,

 

How are you doing with Amex?

 

I'm interested to know whether or not they said there was anything on the back of this application form. My application form was for 2000 and they are saying there were Terms and Conditions on the back.

 

Any info gratefully received.

 

Thank you.

 

DD

[Yeats]

They are now going for a CCJ.

I have until Tuesday 17th to file my defence.

As previously stated, they have answered my CCA request with a signed Application Form and a photocopy of the T&C at the time the card was taken out (charges are set at £20).

I have not been issued with a Default Notice or a Letter of Assignment (the account is now with Brachers, who stated simply "We act for Amex" in the opening sentence of their first threatogram. Brachers are a firm of Solicitors in Kent (their website informs me that John(ny) Sheath is the Managing Partner!!!) and they are going through Brighton County Court.

What is the best way to go?

 

Advice gratefully accepted.

Yeats

 

Desperate Daniella - they haven't tried that with me - yet, but I did not bother much with their Threat letters!

[Yeats]

Oh, and the Charges rose by nearly £200 from the last letter received from Brachers and the amount on the Claim Form!

Yeats

[Desperate Daniella]

Hi Yeats,

 

The most important thing is whether the prescribed terms were on the back of this.

 

Like my application form it is "internally inconsistent". It refers to the Personal Information paragraph set out "overleaf", but the "T & Cs which form part of this agreement" - no mention of those being overleaf.

 

If the T & Cs were on a separate document the agreement is not enforceable and there is a House of Lords authority on this. I can give you that later. They have to be contained within the "four corners of the agreement". This can mean overleaf but NOT in a separate leaflet.

 

I am getting help on my thread at the moment about the APR/Interest rates, so I think you should post the T & Cs up here too, so that the experts can see if they have the prescribed terms, and if the interest/APR is accurate.

 

When I have got an answer on my T & Cs, if the prescribed terms are there and other stuff correct I am going to request a visit to see the original document. In my case it doesn't look as though the back would fit on the front - it's very suspicious looking photocopying.

 

You must apply to the Court to have the case moved to your local court. You are entitled to do this as a litigant in person. I read on another Amex thread that if it is heard in Brighton - home of Amex - you will certainly get stitched up.

 

Others here will help with your defence, but I would personally contact Amex immediately and say you want to view the original agreement - not a photocopy of it. If they take you to court they will have to produce it themselves, and as they sent you a photocopy they obviously have it to hand. If the T & Cs aren't on the back they really don't have a case.

 

Good luck, and I'll help wherever I can.

 

DD

[Yeats]

Thanks DD.

I shall post up the T&C a bit later today, but, unfortunately I can't get down to AE Headquarters before Friday (when I have to send off my defence as Brighton don't have online facilities) to view the original Application.

[Yeats]

Also, it's very hard to decipher, but I cannot see any reference on the App Form to anything overleaf. It may be there, but I can't make it out!

Has anyone got a link to another thread with an identical App. Form?

It's very hard to know when you can't even read the thing!

[Desperate Daniella]

Even if you have sent in a defence you can still 'visit' your agreement and if it isn't compliant they won't have a case anyway. I'm sure someone will come along later to tell you how to phrase the defence - I don't have the expertise, and anyway you need to see if the prescribed terms are there. The main thing is to get it away from Brighton!

 

DD

[Desperate Daniella]

I've just seen your second post. Unfortunately they are all slightly different. I've seen a number of versions over the past couple of months but I can't remember what is where. I think you'll have to trawl through the other Amex threads. It'll be worth it because you can see where other people are at the moment.

 

DD

[Yeats]

Good advice DD.

I was amazed when I checked through th AE folder I keep and could not find a DN or a Notice of Assignment.

Surely, without these they don't even have a case in Brighton?

[Desperate Daniella]

That is all part of the process they are supposed to follow. Someone on here will help with doing the defence in the proper order. I still wouldn't go to court in Brighton. It's quite clear from so many threads (not just Amex in Brighton) that some judges just completely ignore the CCA 1974 requirements and give judgment anyway to the card companies "because you have had the money". Then you have to appeal it which is much more hassle, time and expense.

 

Don't even think about having this heard in enemy territory. Just because you are completely in the right won't mean you are necessarily safe from an Amex-friendly judge! There was an absolute horror story on here a couple of weeks ago where although there was an unenforceable agreement/or no agreement (can't quite remember) the judge found for MBNA because they produced a cut-up credit card. Totally wrong, utterly scandalous, but that is what happened.

 

DD

[Yeats]

I wll post the T&C up later as I'm having a problem with my scanner and drivers for Vista - should be up this evening.

 

Can anyone help with the defence?

No DN - No Letter of Assignment - Dodgy CCA - Unfair charges added by DCA's with no explanation.

 

And how do I get this moved to my local County Court?

 

Thanks,

yeats

[Desperate Daniella]

Hi,

 

BRW is helping on my Amex thread. If you go to one of his threads - can't think what they are called, but Barclaycard is one - you can give him the link to your thread. Otherwise go on to the other Amex threads and see who is helping there. Alphageek is in a similar situation so go on his thread too.

 

The Court papers should have something in them about transferring to another Court, although this may be in the allocation questionnaire which comes later.

 

Sorry to be so vague. I'm not as clued-up as others here. I will have a look at your T & Cs later.

 

DD

[the_shadow]

I wll post the T&C up later as I'm having a problem with my scanner and drivers for Vista - should be up this evening.

 

Can anyone help with the defence?

No DN - No Letter of Assignment - Dodgy CCA - Unfair charges added by DCA's with no explanation.

 

And how do I get this moved to my local County Court?

 

Thanks,

yeats

 

Sorry can only be quick... if you search in the amex section one of the cases in their (recent post) has had the same issue with case in brighton and they had to get it moved... all info is in there.. if you cant find it put a message on this thread and I'll search it out for you tonight.

[Yeats]

Thanks to you both.

I shall search now and see what I can find.

I'll sort the T&C also.

[Monty2007]

Thanks to you both.

I shall search now and see what I can find.

I'll sort the T&C also.

 

Dear Yeats

Have you posted up the particulars of their claim?

I am also in court with Amex in Scotland and had Brachers about to serve a claim before I moved North, they offered a 50% settlement but added on £3 K fees before doing so.

You MUST get the case moved to your local court, I would immediately write to the clerk and request transfer.

The application that Amex has provided in response to your S78(1) request is unenforceable under S124. Given the date, they will have scanned in only the front page and not the back portion, all Amex docs are the same from this period up to 2005/6.

They have also messed up if you have not been served with a default notice and this should be a key part of your defence. I would suggest that you read all the other Amex threads of which there are many and then post up a draft defence.

Brachers have had the odd victory but are beatable.

[the_shadow]

Yeats...

 

Letter from this thread http://www.consumeractiongroup.co.uk/forum/amex/165346-amex-taking-me-court-3.html to the court....

 

 

To the Court Manager XXXXXXX Court.

 

Case Ref: xxxxxxxxx

 

To be put before the Judge.

 

Dear Sir/Madam.

 

 

I am the defendant in the above case,and a litigant in person.

I respectfully ask the Court that all proceedings in relation to this matter be transferred to my home Court at XXXXXX.

As a litigant in person,I have limited funding and resources,in contrast to the Claimant who is a well sourced institution.

 

Should you require this request to be made by way of application on notice,then I request that you will inform me of this as soon as possible.I can be contacted on XXXXXXXX

 

Yours Faithfully

 

 

 

XXXXXXXXXX

[Yeats]

I can't get the scanner to work with Vista!

Thanks for the help and I'll try to formulate a defence tonight to send registered tomorrow/saturday as the last day is Tuesday.

I shall include the request to have this moved also.

Get back to you later.

The particulars of the claim are:

"Money due for Creditcard services supplied to and at the defendant's request as detailed in monthly statements rendered culminating 5th Oct 2008". It then goes on to list the monies due, interest etc.

yeats

[the_shadow]

I can't get the scanner to work with Vista!

Thanks for the help and I'll try to formulate a defence tonight to send registered tomorrow/saturday as the last day is Tuesday.

I shall include the request to have this moved also.

Get back to you later.

The particulars of the claim are:

"Money due for Creditcard services supplied to and at the defendant's request as detailed in monthly statements rendered culminating 5th Oct 2008". It then goes on to list the monies due, interest etc.

yeats

 

Yeats,

 

Would think you need to get the court move letter in ASAP... maybe worth faxing over to court and then ringing to get them to present it.

 

I would also post up the defence to try and get some help if it were me... also I'd make sure the relevant regulations are quoted when mentioning a) Lack of a Default Notice b) No letter of assignment c) Unfair fees according to OFT guidelines.

 

Best of luck which ever way you decide to go.

Edited February 12, 2009 by pmw1971

[Yeats]

So far got the following defence:

 

In the BRIGHTON COUNTY COURT

Claim number xxxxx

 

Between:

 

AMERICAN EXPRESS SERVICES EURO

Claimant

 

and

 

xxxx

Defendant

 

D E F E N C E

 

1. I, xxxxx, am the Defendant in this action and make the following statement as my Defence to the above Claim made by AMERICAN EXPRESS SERVICES EURO.

 

2. Except where otherwise mentioned in this Defence, I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present because, amongst other things:

 

4. The Claimant’s particulars of claims disclose no legal cause of action and they are embarrassing to the Defendant as the Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the Court’s attention to the following matters:

 

(a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to, or proceeding the alleged cause of action. No particulars are offered in relation to the nature of a written Agreement nor the method by which the Claimant calculated any outstanding sums due, nor any other matters necessary to substantiate the Claimant's claim.

 

(b) A copy of the original written and properly executed Regulated Credit Agreement that appears to form the basis upon which these proceedings have been brought, does not appear to have been served attached to the claim form.

 

© A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

(d) A copy of the required valid Default Notice does not appear to have been served attached to the claim form.

 

(e) Consequently, I deny all allegations on the particulars of claim and put the Claimant to strict proof thereof.

 

 

 

The relevant Act of Parliament in this Case

 

5. Firstly I will address the issue of which Act is relevant in this case, to avoid any confusion in case it is suggested that the claim falls under the Consumer Credit Act 2006. It is drawn to the Court’s attention that Schedule 3, Section 11 of the Consumer Credit Act 2006 prevents Section 15 repealing Section 127 (3) of the 1974 Act for Agreements made before Section 15 came into effect. Since the Agreement would have commenced prior to the inception of the Consumer Credit Act 2006, Section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

6. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act, namely SCHEDULE 3, Transitional Provision and Savings:

 

11 The repeal by this Act of-

 

(a) the words “(subject to subsections (3) and (4))” in subsection (1)

of section 127 of the 1974 Act,

 

(b) subsections (3) to (5) of that section, and

 

© the words “or 127(3)” in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly-executed Agreements made before the commencement of section 15 of this Act.

 

7. Therefore, the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this Agreement. The Consumer Credit Act 1974 is the Act which regulates the Agreement.

 

 

 

 

Document Retention and the Claimant’s failures

 

8. The Claimant would be aware of the fact that they would need to be able to produce a copy of the original Agreement should they ever need to take legal action to enforce the Agreement. The Claimant would also need to be able to produce a true copy of the properly executed Regulated Agreement upon request pursuant to Section 78 (1) Consumer Credit Act 1974. It therefore stands to reason that the Claimant must surely hold such document, and yet has either chosen not to disclose it, or has lost this document, or never had it in the first place.

 

9. According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b)). As a Running Credit Agreement remains active until the Agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the Agreement/application) would be "live" until the account is paid, or terminated. Thus, the full file should be retained for at least six years after that.

 

10. This interpretation fits in with Inland Revenue legislation that requires prime documents are to be retained for a period of six years, after the end of the relevant accounting period. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5) (a) and (5) (b)."

 

11. Finally, key documents and Application Forms must also be kept until 5 years after that business relationship has ended, if the Claimant is to comply with the requirements of The Money Laundering Regulations 1993, 2003 and 2007.

 

The importance of an Original Copy of the Credit Agreement and its production before the Court

 

12. Under the Consumer Credit Act 1974 there are certain conditions laid down by Parliament which must be complied with if such an Agreement is to be enforced by the Courts (for Agreements pre Consumer Credit Act 2006).

 

13. Firstly, the Agreement must contain certain Prescribed Terms under regulations made by the Secretary of State as outlined in Section 60(1) of the Consumer Credit Act 1974. The regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

14. The Prescribed Terms are contained in schedule 6 Column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are as follows:

 

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, a term stating the rate of any interest on the credit to be provided under the Agreement and 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:

 

Number of repayments;

Amount of repayments;

Frequency and timing of repayments;

Dates of repayments;

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

 

15. It is submitted that if the Credit Agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the Prescribed Terms are not contained within the Agreement, then the Court is precluded from enforcing the Agreement. The Prescribed Terms must be within the Agreement for it to be compliant with Section 60(1) Consumer Credit Act 1974. In addition, there is case law from the Court of Appeal which confirms the Prescribed Terms must be contained within the body of the Agreement and not in a separate document.

 

16. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer Credit Agreements". Some of this information mirrors the terms prescribed by Schedule 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

“33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the Court can identify within the four corners of the Agreement. Those minimum provisions combined with the requirement under s61 that all the terms should be in a single document, and backed up by the provisions of s127(3), ensure that these core terms are expressly set out in the Agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis- stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the Court is whether they are, on a true construction, included in the Agreement. More detailed requirements, which are designed to ensure that the Debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

 

17. If the Agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) of the Consumer Credit Act 1974, the consequences of which means it is improperly executed and only enforceable by Court order.

 

18. Notwithstanding point 64, The Agreement must be signed in the prescribed manner to comply with Section 61(1) of the Consumer Credit Act 1974. If the Agreement is not signed by Debtor or Creditor, it is also improperly executed and again only enforceable by Court order, although without a Debtor’s Signature, enforcement would not be possible.

 

19. I now wish to make reference to an excerpt of case law from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch).

 

20. In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the lender if his money lending Agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls:

 

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the Agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non- compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

 

21. The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach…

 

22. Despite [criticism in the Crowther report] I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, deciding that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of Agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the Court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately…"

 

23. The message from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch), is that the Consumer Credit Act is clearly enacted to protect consumers such as myself and therefore the Claimant’s failures to supply the information and their general behaviour in this matter should be noted accordingly, giving consideration to the case law and the facts as set out within this Defence.

 

24. Therefore, the Claimant must provide an original copy of the Agreement compliant with the regulations as laid out in points 59 to 69 of this Defence to have any right of enforcement.

 

The Court’s Power of Enforcement

 

25. The Court’s powers of enforcement where Agreements are improperly executed by way of Section 65 are themselves subject to certain qualifying factors. Under Section 127(3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the Court to be able to enforce the Agreement where Section 65(1) has not been complied with. Section 127(3) The Court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of Agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1) itself containing all the Prescribed Terms of the Agreement was signed by the Debtor or hirer (whether or not in the prescribed manner).

 

26. Furthermore the Courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the Agreement cannot be enforced.

 

27. With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul):

 

28. I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated Agreement is an Agreement between an individual Debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated Agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the Agreement must be in a prescribed form containing all the Prescribed Terms. The Prescribed Terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the Agreement is not enforceable against the Debtor save by an order of the Court: Section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under Section 65. The Court 'shall dismiss' the application if, but only if, the Court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The Court may reduce the amount payable by the Debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the Agreement or security.

 

29. The Court's powers under Section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of Agreements, is not complied with. In such cases the Court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the Prescribed Terms, was signed by the Debtor: section 127(3). Thus, signature of a document containing all the Prescribed Terms is an essential prerequisite to the Court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted Agreement pursuant to Sections 62 and 63, or failure to comply with the duty to give notice of Cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding Sections 62 and 63, Section 127(4) precludes the Court from making an enforcement order.

 

30. These restrictions on enforcement of a Regulated Agreement cannot be sidestepped... In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated Agreement is not enforceable unless a document containing all the Prescribed Terms is signed by the Debtor.

 

31. ".............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. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

32. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a Debtor might be enriched consequential upon non-enforcement of an Agreement pursuant to the statutory provisions. It was not open to the Court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

 

33. The judgment of Lord Nicholls of Birkenhead clearly sets out that without a Credit Agreement the Claimant's case cannot succeed.

 

34. I therefore respectfully request that the Court order the Claimant produce the Original signed Agreement before the Court to show the form and content of it and that it complies with the Regulations referred to in this Defence, otherwise the Court’s powers of enforcement are surely limited in these circumstances.

 

35. Furthermore, the Defendant requires clarification on the status of the original Agreement, if such ever existed. If the document is no longer in existence the Defendant requires certification of destruction and furthermore the Defendant will call into question the validity of any purported copy of the said contract where the original has been destroyed. The Defendant will require production of details as to when any copy was made and what medium the copy has been stored on along with clarification of who has had access to the document. I will also require written clarification that any copy document produced is authentic. Suitable Document checking, copying and destruction Policy notes must also be provided, backed up by Audit Logs to confirm how such Policies were carried out, checked and maintained. The Defendant notes that the Civil Procedure Rules also require the original documents to be made available under Practice Direction 32.

 

36. I also refer to the following quotation obtained from the Website of Francis Bennion, who was the draftsman of the Consumer Credit Act 1974:

 

Consumer Credit Act 1974 s 127(3):

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wi lson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the Credit Agreement it deserved to find it unenforceable, and that the Court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

 

167 Justice of the Peace (2003) 773.

 

37. The Defendant is under the belief that in the case of Rankine v Barclays Bank Plc [2005] on appeal from Stafford County Court the issue of the loss of the original, or destruction of the original Credit Agreement was central to the case and the Defendant is under the belief that the outcome of the case was that where the original Agreement could not be produced the claim could not succeed and that the appeal was successful.

 

38. I would also like to draw the Court’s attention to the requirements of CPR Practice Direction 16 7.3, which states:

 

7.3 Where a claim is based upon a written Agreement:

 

(1) a copy of the contract or documents constituting the Agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing

 

39. Should the Claimant be unable to produce the original Agreement signed by both Debtor and Creditor and containing the Prescribed Terms, I request that the Court uses its powers under Section 142 Consumer Credit Act 1974 and declare the Agreement as unenforceable.

 

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

40. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

41. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the Defendant.

 

42. Notwithstanding point 38, I put the Claimant to strict proof that any Default Notice sent to me was valid. I note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

43. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

44. It is submitted that the above Default Notice served under s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

45. I note that the Claimant’s Particulars of Claim fail to even acknowledge service of a Default Notice as required by section 87(1) of the Consumer Credit Act 1974 before the Claimant can even consider terminating the Agreement or demanding early repayment in full.

 

 

46. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

47. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

48. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

49. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

50. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

51. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

52. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges (that are now the subject of a Counter-Claim outlined below), plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

53. For the avoidance of any doubt, in the event of an alleged breach by the Debtor, Clause 10 mentioned in 2(b) of the Claimant’s Particulars of Claim has to be completely disregarded. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

54. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on 18/06/2008. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

Conclusion

 

55. The Claimant's case should not succeed as matters stand. It is averred that the Claimant and its representatives have acted unreasonably when dealing with this Dispute.

 

56. In view of matters pleaded, I respectfully request the Court give consideration to striking out the Claimant’s case pursuant to CPR part 3.4.

 

57. If the Court considers it inappropriate to use its case management powers, it is requested that the Court order the Claimant to produce all the Original documents mentioned in my Defence before the Court. Without production of all the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial.

 

58. The Defendant requires that the Claimant provide the requested information and proofs and authenticities. The Defendant requests that the Court order that the Claimant supply the information requested.

 

59. I respectfully ask the permission of the Court to amend this Defence when the Claimant provides full disclosure of the requested documents.

 

 

 

 

 

Data Protection Act 1998

 

60. Additionally, the Defendant requests an order from the Court under Section 14(1) of the Data Protection Act 1998, for the removal of any Default or Termination Notices and any other information relating to this Agreement, that may cause prejudice or further damage, from the Claimant’s internal records and order the Claimant to cease from processing, or, where that processing is already taking place, order the cessation of such processing with third parties to the agreement, such as all credit reference agencies.

 

61. Section 14(1) of the Data Protection Act 1998 is reproduced below:

 

14 Rectification, blocking, erasure and destruction

 

(1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.

 

 

 

Statement of Truth

 

I xxxxxxxxx, believe the above Defence Statement to be true and factual

 

 

Signed: _________________________ _______

 

Date: _________________________ _______

[Yeats]

Morning,

can someone have a look at the above CCJ defence please?

It's for Amex and they have not supplied (or sent!) a Termination Notice, a DN or a valid CCA.

Thanks,

yeats

[Desperate Daniella]

Sorry, I don't have the expertise to advise, but it looks pretty impressive to me.

 

DD

[shakespeare62]

Any news ? (I thought the defence was impressive too !)