Amex taking me to court - any advice - *** WON ***

[Pandora_nini]

Thank you all for replying, very much appreciated. I will send them the letter suggested and see what happens...

 

I am going to post the "credit agreement" on here later... if someone doesn't mind just reviewing it as well to make sure that it really isn't a "credit agreement"?

 

Thanks again.

[Monty2007]

Well let's see it, I have been looking at Amex agreements for the last six hours, I am well on top of them and could probably name the year and hum what was number one at that time.............

[Pandora_nini]

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[Pandora_nini]

http://i199.photobucket.com/albums/aa135/Pandora_nini/AmexTC1.jpg

http://i199.photobucket.com/albums/aa135/Pandora_nini/AmexAppcopy.jpg

http://i199.photobucket.com/albums/aa135/Pandora_nini/AmexTC2.jpg

http://i199.photobucket.com/albums/aa135/Pandora_nini/AmexTC3.jpg

[Pandora_nini]

Sorry Monty, it has taken me so long to get the scanner to work, to scan the docs in, and then upload them - I have practically fallen asleep:|

 

I couldn't find a way to make them any larger than they are, or how to upload them directly into a message here!

 

Appreciate any views you might have (if you have a magnifying glass), when you have some spare time.

 

Many thanks

Pandora

[Monty2007]

Hi Pandora

 

You did a good job getting these posted up.

 

I have exactly the same application form and "Agreement" from Amex. I assume that this is what they sent you following your s78(1) request?

Given the age, Amex would have almost certainly (99%) only scanned the front page and then shredded the document. They have now sent you a poor copy and then printed off the Agreement which you will not have signed and which they will claim "would have been on the reverse" of the application form. Of course they cannot prove this is the case given that they will have shredded the original.

Did you have a default notice served on you? It is worth posting that up since it may have remedy clauses that actually do not relate to this purported agreement - as in my case.

IMO the application and the supplied agreement are non-enforceable but on a bad day with a bad judge you may find Amex will apply, and possibly get, a strike-out. Hence it is also advisable to look at the default notice such that you have two chances of getting them.

I am sure you will get other comments and advice here so worth waiting to see the collective opinion. This seems to be a typical Amex response to me.

Have you made a SAR? It is worth doing so, remember to use a template letter from here, include £10 and send via next day Guaranteed delivery.

[slick132]

Isn't it a bit late for a SAR. I assume Pandora has already quantified hte penalty charges on the a/c and included them in the counterclaim response to Amex's Claim.

 

Pandora, please confirm about this.

 

[Monty2007]

Isn't it a bit late for a SAR. I assume Pandora has already quantified hte penalty charges on the a/c and included them in the counterclaim response to Amex's Claim.

 

Pandora, please confirm about this.

 

 

Dear Slick

 

I SAR Amex every 3 to 4 months, they disclose their legal correspondance and this is how I got to see a letter between Brachers and the Amex legal team which confirmed that "they only had one application" for the two disputed accounts. This has been significant in my case which is heading toward the end game.

 

For £10 it was money very well spent as was the last one which confirmed that they tried to serve court papers at an incorrect address. All useful evidence to be used against Amex............

[slick132]

Thanks Monty,

 

Well, you learn summat new here all the time.

 

But we still need Pandora to confirm that there was a counterclaim for unlawful penalty charges.

 

[Pandora_nini]

Hello, thank you so much Monty for taking the time review the documents - glad you could read them!

 

Slick, I did a subject access request, and whilst this was in the process of coming through Brachers decided to issue a court summons. I have just double checked through my papers and there is no default notice, and I certainly don't remember ever having received one from Amex. I sent a letter to Brachers at the time of responding to the court summons (CPR 31.14) requesting the agreeement, true copy of the default notice, copy of the termination letter etc, and only received a copy of the application posted up last night and a copy of my statements.... Brachers promised to supply a copy of the default notice when they received it.... I am still waiting.

 

My worry is (having read around the site), that even if an agreement is non enforceable, that as you say, a judge on a bad day may not accept it.

 

The case management date is 17th March, so am concerned about the timings of all of this. I can completely see the reasoning behind another SAR, but not sure if there is enough time?

 

Thank you for your tremendous support.

Pandora

[Pandora_nini]

Isn't it a bit late for a SAR. I assume Pandora has already quantified hte penalty charges on the a/c and included them in the counterclaim response to Amex's Claim.

 

Pandora, please confirm about this.

 

 

I included any charges and the 8% interest in my counter claim, and it came to £9.00 less than the amount Brachers claimed I owed Amex.

[Monty2007]

Hello, thank you so much Monty for taking the time review the documents - glad you could read them!

 

Slick, I did a subject access request, and whilst this was in the process of coming through Brachers decided to issue a court summons. I have just double checked through my papers and there is no default notice, and I certainly don't remember ever having received one from Amex. I sent a letter to Brachers at the time of responding to the court summons (CPR 31.14) requesting the agreeement, true copy of the default notice, copy of the termination letter etc, and only received a copy of the application posted up last night and a copy of my statements.... Brachers promised to supply a copy of the default notice when they received it.... I am still waiting.

 

My worry is (having read around the site), that even if an agreement is non enforceable, that as you say, a judge on a bad day may not accept it.

 

The case management date is 17th March, so am concerned about the timings of all of this. I can completely see the reasoning behind another SAR, but not sure if there is enough time?

 

Thank you for your tremendous support.

Pandora

 

Hi Pandora

 

Amex will try to re-create the DN and claim it was served on you so be prepared for this. You will have to insist that they provide proof of posting and delivery that provided you the opportunity to remedy. Did they terminate the agreement? - sorry I have not re-read your entire thread and keep looking through all the Amex threads since I am close to the end game with mine and will update my thread as soon as I can and without compromising my "unusual" case.

 

The Amex group can e-mail for any further information since I am certain Amex/Brachers et al look at these threads so be aware of this also.

 

Amex cases are starting to crumble in abundance, but as you say the Judge has to be neutral and not in Amex's back pocket as some appear to be:wink:.

[banker_rhymes_with]

Hello PN!

 

Amex cases are starting to crumble in abundance, but as you say the Judge has to be neutral and not in Amex's back pocket as some appear to be

Do not trust them any further than you can throw them.

 

Cheers,

BRW

[Pandora_nini]

Hi Pandora

 

Amex will try to re-create the DN and claim it was served on you so be prepared for this. You will have to insist that they provide proof of posting and delivery that provided you the opportunity to remedy. Did they terminate the agreement? - sorry I have not re-read your entire thread and keep looking through all the Amex threads since I am close to the end game with mine and will update my thread as soon as I can and without compromising my "unusual" case.

 

The Amex group can e-mail for any further information since I am certain Amex/Brachers et al look at these threads so be aware of this also.

 

Amex cases are starting to crumble in abundance, but as you say the Judge has to be neutral and not in Amex's back pocket as some appear to be:wink:.

 

Hi Monty, thanks for this - I can see you add a lot to everyone's threads!

I am thinking about writing to them along the lines of (from Slick's letter)

 

Dear sir or madam,

 

I have received your letter of xx March, the contents of which are noted.

 

I will not withdraw my counterclaim and confirm my intention to seek:-

 

1. Full refund of all unlawful penalty charges plus interest up to the date of settlement.

 

2. Removal of the Default registered for this account.

 

If your client will not agree to these terms, I am happy to let the matter be decided in court.

 

I assume that you are still unable to provide the executed credit agreement, as requested previously, but I now require your confirmation on this point. I also require the default notice which your client claims was served and strict proof that this was in fact delivered and received by myself. In the absence of these specific documents, your client's claim against me is bound to fail.

 

I look forward to your prompt reply, bearing in mind the forthcoming hearing set for xx date.

 

Yours faithfully,

 

Pandora

 

 

What do you think? I am sure I have read on the site somewhere that it has to be an original default notice, not a print out of another one - is that right?

[slick132]

Hi PN,

 

I understand your worry, but you need to keep the pressure on Amex to get the default removed if you can.

 

On a good day, you'll get all the charges and int't back, default removed. Then, if you want, you can pay off Amex.

 

If you have a bad day or bad judge, worst case is the charges are set against the alleged debt leaving a £9 balance which you pay within 30 days and there's no CCJ against you.

 

If they can produce a DN which convinces a judge, then it'll stand. If the DN is found to be wrong, the judge should order it to be removed from your records.

 

SAR would not be replied to before the hearing - but thats up to you and Monty. You seem to be in capable hands so I'll leave Monty to help further if you need.

 

I'll keep watching anyway.............

[Pandora_nini]

In thinking this all through logically.... (more like trying to get my brain around it all)

 

- Amex are suing me for pretty much the same amount as their unlawful charges - so to my mind I have paid off any actual debt (ie purchases I made on the card) - surely one sum cancels out the other sum - if the only outstanding "debt" on the card are charges then I haven't really "paid" those charges, so can I really pursue them for this as I am suggesting in the letter in the post above?

 

- They have defaulted me, but not supplied the default notice - is this strong enough (bearing in mind that brachers can't supply this either, and that there will definitely be no proof of delivery) to actually take this to court.

 

- The "agreement" isn't really an agreement, but there doesn't seem to be a real cut and dried answer to this one in terms of judgements?

 

I think I am too simple for this not really asking questions here, just stating it as I see it, which is probably completely wrong:lol:

[Pandora_nini]

Hi PN,

 

I understand your worry, but you need to keep the pressure on Amex to get the default removed if you can.

 

On a good day, you'll get all the charges and int't back, default removed. Then, if you want, you can pay off Amex.

 

If you have a bad day or bad judge, worst case is the charges are set against the alleged debt leaving a £9 balance which you pay within 30 days and there's no CCJ against you.

 

If they can produce a DN which convinces a judge, then it'll stand. If the DN is found to be wrong, the judge should order it to be removed from your records.

 

SAR would not be replied to before the hearing - but thats up to you and Monty. You seem to be in capable hands so I'll leave Monty to help further if you need.

 

I'll keep watching anyway.............

 

Thanks Slick, can you tell me what actually happens at the case management hearing - I am not sure I am clear on this?

 

I completely understand what you are saying about keeping the pressure on - and I will do this, I guess I am being a bit cautious as I feel (rightly or wrongly) that if they are ready to withdraw then they may agree to the default removal without even going to court, but if I continue to pursue it, it may "P**s" them off so much that I lose more - I just don't know!!

[Pandora_nini]

Thanks Slick, can you tell me what actually happens at the case management hearing - I am not sure I am clear on this?

 

I completely understand what you are saying about keeping the pressure on - and I will do this, I guess I am being a bit cautious as I feel (rightly or wrongly) that if they are ready to withdraw then they may agree to the default removal without even going to court, but if I continue to pursue it, it may "P**s" them off so much that I lose more - I just don't know!!

 

Sorry, I have another question - if there is a default, and I lost this in court and then got a CCJ, paid that within 30 days which removes the CCJ does the default still stand, or does the CCJ clear the default (ie we defaulted you, taken you to court, won, and the CCJ replaces the default)? And if you are lucky enough to have the money to pay the CCJ it is removed, and therefore neither the default nor CCJ remains on your credit record?

[Monty2007]

Hi Pandora

Personally I would avoid any reference to the "agreement" at this point since they have their position that is opposite to your own and will only really be debated if you get to a hearing. I have re-read your thread and see that you really just want to get the default removed and essentially the account returned to zero, or at least the full charges refunded.

I would suggest:-

Without Prejudice

Dear sir or madam,

I have received your letter of xx March, the contents of which are noted.

In order for me to conform to your request and withdraw my counterclaim I require the following from your Client within the next seven days of the date of this letter:-

1. The full and unconditional refund of all charges and fees placed on my account including statutory interest up to the date of settlement.

2. Removal of the Defaults registered for this account with all the Credit Reference agencies.

The above represents my full and final settlement in relation to this matter. Should your Client by unable or unwilling to conform then I will proceed forward with my Counterclaim as previously advised.

I look forward to your prompt reply, bearing in mind the forthcoming hearing set for xx date.

Yours faithfully,

Pandora

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

You may want to consider giving them longer than 7 days and also accept that updating the CRA typically takes a month given they sometimes do this in monthly cycles. Your previous S78(1) request stands as does the DN non-compliance and given this is Without Prejudice they will be unable to produce it in court and potentially compromise your defence.

[Pandora_nini]

Hi Pandora

 

Personally I would avoid any reference to the "agreement" at this point since they have their position that is opposite to your own and will only really be debated if you get to a hearing. I have re-read your thread and see that you really just want to get the default removed and essentially the account returned to zero, or at least the full charges refunded.

 

I would suggest:-

 

Without Prejudice

 

Dear sir or madam,

 

I have received your letter of xx March, the contents of which are noted.

 

In order for me to conform to your request and withdraw my counterclaim I require the following from your Client within the next seven days of the date of this letter:-

 

1. The full and unconditional refund of all charges and fees placed on my account including statutory interest up to the date of settlement.

 

2. Removal of the Defaults registered for this account with all the Credit Reference agencies.

 

The above represents my full and final settlement in relation to this matter. Should your Client by unable or unwilling to conform then I will proceed forward with my Counterclaim as previously advised.

 

I look forward to your prompt reply, bearing in mind the forthcoming hearing set for xx date.

 

Yours faithfully,

 

Pandora

 

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

You may want to consider giving them longer than 7 days and also accept that updating the CRA typically takes a month given they sometimes do this in monthly cycles. Your previous S78(1) request stands as does the DN non-compliance and given this is Without Prejudice they will be unable to produce it in court and potentially compromise your defence.

 

Thanks Monty, I do want to get the account back to zero, and the default removed - if that's a refund of the charges either to the account or to me I don't really mind, but it is important to remove the default - I am also annoyed that they have chosen to pursue this course of action whilst I am disputing the account, etc - seems a wee bit heavy handed to me.

 

Also, it really proves just what a great job this site does for all of us - had I not known about this, I probably would have hidden the claim under a pile of papers, ignored it, got a CCJ and felt bullied into a situation which is unfair, CAG has given me the opportunity to really fight my corner (with the fantastic support of everyone), and make a difference to it. I will send the letter off to them recorded tomorrow and let's see what happens..

 

Thanks

Pandora

[slick132]

Hi PN,

 

I would agree with Monty's letter APART from using the Without Prejudice.

 

The letter makes no exceptional offer or condition on your part, which you would want to withdraw if they don't agree to your wishes.

 

And it's important that you be able to show the letter to court as a sign of your wish to negotiate settlement before a court hearing. If the letter is Without Prejudice, you cannot produce this to the court.

 

In reply to the Q in Post #93, if you pay the £9 you say is due after setting the charges against the balance, there will be no CCJ registered against you.

 

However, the default would remain, showing that you had failed to pay what they say was due on the a/c at the time of the default. This is why you should use this situation to your best advantage.

[Monty2007]

Hi PN,

 

I would agree with Monty's letter APART from using the Without Prejudice.

 

The letter makes no exceptional offer or condition on your part, which you would want to withdraw if they don't agree to your wishes.

 

And it's important that you be able to show the letter to court as a sign of your wish to negotiate settlement before a court hearing. If the letter is Without Prejudice, you cannot produce this to the court.

 

In reply to the Q in Post #93, if you pay the £9 you say is due after setting the charges against the balance, there will be no CCJ registered against you.

 

However, the default would remain, showing that you had failed to pay what they say was due on the a/c at the time of the default. This is why you should use this situation to your best advantage.

 

Fair point Slick, I stand corrected.

[Pandora_nini]

Hello,

 

Have posted off a letter to Brachers, so let's see what response they come back with, bearing in mind the case management hearing is next week.

 

Can anyone tell me what exactly happens at a case management hearing?

 

Thanks

Pandora_nini

[slick132]

The judge will review what has happened so far with the case and will then give Directions for how the case is to proceed.

[citizenB]

Should'nt this thread be in the Legal Forum as court papers have been served ?. I have asked for a mod/site helper to move it for you.