Bankruptcy Petition - Help Needed Please

[Traderx]

Hearing adjourned for Amex to get their figures correct. Despite my arguing (poorly admittedly) they only have to show a summary of the amount due. Registrar didnt even read my statement. applicant to file a statement in 14 days, i am not allowed to respond.

 

will post a bit more later after parents evening

[Viscount Stair]

I'm sorry it went badly.

 

It does strike me as odd that you would not be allowed to respond to Amex's next statement. If they are having to get their figures right, then it stands to reason that they got them wrong in the first place.

 

I'm not sure of the line of appeal in insolvency proceedings but I think that there may be an appeal from the registrar to a judge. It may be that you couid consider an appeal on the procedural issues alone (ie to have your last statement taken into account and to get the right to make a further statement in reply).

 

What was the basis of the ruling? Was it that the charge card on its own is enough to bridge the £750 limit or was it that the credit card was enforceable as well? If the latter, then there may be further grounds for appeal.

 

All that said, if there is not going to be a way to get the figures below £750, then it may be academic. I am not going to tell you to give up hope but I am going to ask you to think carefully about what to do next.

 

I hope parents' evening goes well for you.

 

We can reconvene after the dust has settled a bit.

 

In the meantime, all the best!

[Viscount Stair]

I've made a quick check and there does appear to be a right of appeal from the Registrar to a judge without any requirement for leave. There is a 14 day time limit.

 

If you want to pursue this, then contact the High Court Appeals Office who should guide you through the process of lodging an appeal.

[Traderx]

thanks

[Traderx]

Right. when i got to court i overheard the petitioning solicitor talking to another sol talking about my case (she didnt realise who i was). saying that a lot of people are using this unenforceable argument and whilst there is some validity to it the courts are beginning to get tired of hearing it. also she said that all she needed to do wa to go to county court and get an enforcement order.

 

The process server was there too and whilst i disputed i had been 'served' the process servers statement said she had served me at my previous address. the registrar did not ask any questions to the process server and seemd happy that he process had been followed. i asked if i could see the SD and if i could have it put aside now and was told no.

 

I briefly argued that the amounts claimed are in dispute and that there were a variety of numbers being bandied around in the statements and therefore i could not admit any debt.

 

In her directions the registrar then told the solicitors that she needed to get the numbers correct in the next statement. I interupted (not good) and said i had requested the SAR. The solicitors said that i would have bene sent monthly statements so that was unneccessary, and the registrar agreed and told her she could give a summary.

 

They have 14 days to file new statement then evidence is 'closed' and we wait for a new date. the registrar told me i should have legal representation for the next hearing but as far as she was concerned if the sols got the numbers right then i would be made bankrupt at the next hearing.

 

NOT HAPPY

 

no leeway seemd to be given for the Litigant in Person and the registrar wasnt even aware i had filed a second statement.

[Viscount Stair]

This is where there really is no substitute for practical experience, which I just don't have in this area.

 

In theory, I think there are grounds for appeal on the procedural issues alone. As for the chances in practice, I simply can't say.

 

It is also a worrying development if creditors' representatives (who presumably see more of these than most of us do individually) are getting the impression that courts are getting tired of hearing arguments that have the backing of House of Lords case law. That's assuming that it is a genuine impression and not merely wishful thinking.

 

It does seem to me that you were treated fairly shoddily. What we need now is advice from someone with more experience in the trenches.

[Traderx]

The plot thickens................

[Traderx]

[Traderx]

[Traderx]

and on the reverse.......photocopied of course.........

[Traderx]

[Traderx]

There is no mention on the app form of the reverse of this document.

 

I am 99.9999% that this has been mocked up.

 

Surely that is illegal!!!!!!

[Traderx]

if it is correct is this 'enforcable'

[Traderx]

doesnt seem to mention repayments on the T&C's except in section 9. Statements

[Traderx]

think i am grasping at straws now

[Viscount Stair]

They are not exactly playing clean but that should not be a surprise.

 

If it is correct, I think it might well be enforceable. Why it has taken so long to produce this would be an interesting question to ask but you have to wonder how convincing an answer they would be expected to provide.

 

There is a reference on the front of the form to "paragraphs set out overleaf" but only in relation to the use of personal information. The signature box refers to Terms and Conditions but (unlike in relation to the section headed Personal Information) it does not specify where these Terms and Conditions are to be found.

 

The quality of the copies is completely different which, coupled with the convenient timing, makes my eyebrows raise somewhat. However, you would effectively be making a very serious allegation of forgery, which would have to be backed up. That would be very easy to paint - however unfairly - as a last desperate throw of the dice and, if yesterday is anything to go by, then that version would get a better reception than yours.

 

At the risk of appearing brutal, an uphill struggle has just got even steeper - but you knew that anyway.

 

One thing worth trying would be to write to the solicitors asking for inspection of the original. There has also been talk in the past about getting documents forensically examined but I've no idea how to go about getting that done.

[banker_rhymes_with]

Hello TraderX!

 

The latest copy of the Gold Card Application form is still a copy of a copy.

 

There's no way this is a copy of an Original Document placed into a modern Photocopier and reproduced recently.

 

The page of Terms they have added are yet another copy of a copy, and the copy copied is a lower quality copy than the one they copied based on the Application Form.

 

Putting copies of two documents back to back does not make an Enforceable Agreement...although that is what Amex want you and the Court to think.

 

I gather Amex were sold a lot of Copiers (with little Scanners attached to them) some years ago, and set about copying most of their Application Forms. They also seem to have had some/all copied to Microfiche in addition as well, hence what looks like two different quality copies of the same original Application Form.

 

They have produced the slightly better copy of your Application Form only a few days ago, but this is quite probably a little technique Amex likes to play, i.e. send people the Microfiche Copy initially, probably because it is more readily available as an Archive. Then, if push comes to shove, they pull the 2nd copy out from their other archive to make it look like they have dug something better out...the hint being it is a new copy of the actual original.

 

But is it?

 

What do you folks think?

 

If you were holding in your hot little hand an original two sided Agreement, and you copied that via any modern Photocopier, how would you expect that to come out?

 

Perfect?

 

Slightly imperfect?

 

Crabby?

 

One side being hugely crabby compared to the other?

 

I think if the latter, you'd be calling the Photocopier Engineer out to take a look at your Photocopier...because it's clearly having a very bad hair day!

 

What Amex have sent is not two sides of the same original document that were copied recently. It is not even two sides that were copied at the same time using the same equipment...otherwise how can the quality differ so much between front and the alleged back?

 

OK, so they don't have an original copy of your Gold Card Application Form.

 

How are they going to comply with CPR PD 16 7.3?

 

How does what they have sent relate to what the Chief Executive of the Office of Fair Trading thinks should be sent:

 

Letters from DTI /Oft Regarding CCA1974 Issues – Post #49

 

Where is the Default Notice?

 

In Woodchester Lease Management Services Ltd v Swain & Co, Judge LJ Kennedy said:

 

If an individual were said to have broken its terms they needed to know precisely what they were said to have done wrong and what they needed to do to put matters right. The lender had the ability and the resources to give that information, and if there was a failure to do so accurately then he could not take the next step.

 

No valid Default Notice, then Amex cannot take the next step. If Amex have Terminated your alleged Agreement without issuing a valid Default Notice, then they can never take the next step, as they have blown s87.

 

It would not then matter what they produced in terms of the Agreement, as they must follow s87/s88 to Terminate if they wish to be able to take the next step and enjoy the benefits of s87.

 

The above gives you two major issues that suggest Amex are on very thin ice when it comes to the alleged Credit Card portion of your alleged total Debts.

 

If Amex have Terminated unlawfully, then you do have a valid claim or Counter-Claim against them for banging out of their side of the alleged Agreement.

 

Do not forget they were, and remain, a large and sophisticated financial institution with an Army of lawyers at their disposal. The Consumer Credit Act 1974 was created to protect the Consumer, because, and I quote again form the above Case:

 

Most of those consumers were likely to be individuals, who would be at a disadvantage when contracting with a financial organisation, especially as the contract was likely to be in standard form and relatively complex.

 

Amex had a duty to get the original Agreement right, and yet they cannot actually produce the original copy to confirm this. They are pasting together documents to cover their tracks.

 

Likewise, they had a duty to follow s87/s88 to end the alleged Agreement when you were allegedly in default of their Terms...and yet despite their size and sophistication, they seem to be unable to produce any evidence of the very Default Notice that entitles them to take the next step.

 

Don't give up just yet. They think they are on a roll, but it's not over yet.

 

I hope this helps.

 

Cheers,

BRW

[Traderx]

it does, thanks.

 

My scanner isnt great and the copy i have here is more legible than what i have posted.

 

My problem is getting this across to AMEX and/or the registrar.

[Traderx]

and of course i have the charge card problem too......................

[banker_rhymes_with]

Hello TraderX!

 

My scanner isn't great and the copy i have here is more legible than what i have posted.

 

My problem is getting this across to AMEX and/or the registrar.

 

This is 2009.

 

Even allowing for reproduction issues from your own Scanner, I can see that what Amex have sent differs front to back.

 

Ask yourself how can that be if Amex have an original copy...with their deep pockets, what sort of Photocopiers do you think they can afford now?

 

The very best of course. So, how on earth have they managed to mung the two copies so badly? If they do have the original document, what they send in January 2009 should be nothing less than perfect.

 

Is isn't.

 

My problem is getting this across to AMEX and/or the registrar.

 

I'd concentrate on the Default Notice issue, as that is the weakest link that Amex appear to have no defence against.

 

No Default Notice, no s87 benefits, no right to take the next step.

 

Add to that the lack of an original copy of the alleged Credit Card Agreement. The Prescribed Terms must be within the four corners of the Agreement. The Court needs to see that original if they are to confirm if that was really the case.

 

No original Agreement?

 

Any Judge worth his/her salt should stop them there and then because of CPR PD 16 7.3, because the original Written Agreement cannot be produced in Court to be inspected. Remember what the OFT Chief Executive had to say about that.

 

If no original Agreement, then whatever they produce is hearsay evidence, and that falls straight into The Civil Evidence Act 1995 territory.

 

For a Court to even begin to take such hearsay evidence seriously, then Amex will need actual hard evidence to back up that the copy is a copy of the original. They'd need to bring to Court conclusive evidence along the following lines:

 

The Legal Admissibility of information stored on Electronic Document Management Systems

 

Amex will try to bluff past such issues by producing a Witness Statement from some tame banker or other who will swear blind the Terms were on the back of the Application Form...well, they would say that wouldn't they!

 

In reality, any such Witness Statement needs to be cranked around and made to face up to the CEA-1995 and Document Management issues above.

 

It has been said that Amex may not even be ISO Rated! If so, then what sort of Document Management System are they actually operating?

 

Or, if they are ISO Rated, then they should have no problem producing the ISO Document Management Audit evidence that would be expected of them. Read the above link to get a feel for what sort of records they should be keeping, then ask yourself why Amex seem to be so very reluctant to furnish them.

 

Destroying a Statutory Document/Written Agreement was never wise, but doing so without a suitable ISO based Document Management System in place was just plain negligent.

 

Coming to Court with bits of documents merged front to back via sticky tape and glue, should be ridiculed for the stupidity it is.

 

and of course i have the charge card problem too...................

 

You do, but the Credit Card is the largest part of the alleged Debt, and if you can show that is in serious dispute and gives rise to a serious Counter-Claim against Amex for the way they have ended their side of the alleged Agreement, the numbers get a lot smaller.

 

This might just tip the balance into your favour, and/or may bring you within striking distance of being able to pay off the Charge Card and kill the Bankruptcy Order.

 

All I can suggest is you bone up on the above, and become totally familiar with the CEA-1995 and Document Management issues. Then relate that to the Consumer Credit Act 1974 and the way Amex needed to conduct things from day one until Termination. I think you will agree that they have not conducted things in a way that reflects well upon their actual duties and obligations.

 

The real icing on your cake would be if you can find anything at all that might suggest the Charge Card was Regulated by the Act. Cash Advance facility, or anything that allowed you on-going Credit...long shot, I know, but if you can find that, then the Charge Card would become a problem for them as well.

 

Amex are a hostile bunch, but the same rules apply to them as any other banker. Amex seems to think the Laws of England do not apply to them, they are wrong.

 

More and more people are standing up to them, but I do fully appreciate it is by no means an easy task to do so.

 

Cheers,

BRW

[Traderx]

You are a star, got a lot to read now!!

[Traderx]

Cash Advance facility, hmmmm..............

 

what do you mean by that?

 

I could draw cash on the card, and it was subject to a charge.

[banker_rhymes_with]

Hello TraderX!

 

Cash Advance facility, hmmmm..............

 

what do you mean by that?

 

Well, I had a (non-Amex) Business Charge Card that at face value was not Regulated.

 

Then I did some digging and read the Terms that I had kept on file (I keep everything on File, a habit that is now causing the bankers no end of problems).

 

I found out many interesting things:

 

(1) My Agreement was Partly-Regulated by the Consumer Credit Act 1974. I think that was to give them the benefits of s87/s88, i.e. should they need to issue a Default Notice and enjoy s87 post Termination.

 

(2) If the original Agreement was discussed and negotiated off the premises of the bank (they were), and negotiations were made by an employee of the bank (they were), and Cash Advance facilities were discussed (yes they were) and the Agreement was signed away from the bank (yep, that too)...then it seems I needed to be sent a different Agreement to sign than the one I was given...i.e. an Agreement that was Fully Regulated by the Act, not just Partly-Regulated.

 

I can only assume that was because the Cash Advance facility was a form of instant Credit, so fell under the requirements that it must be Regulated.

 

But the bank concerned clearly knew it raised issues, and stated that a different Agreement would then be needed instead (all stated in the Terms).

 

The bank in question did not send me the fully Regulated Agreement! IOW, it seems they made a major mistake and issued the Charge Card on the basis of the incorrect Agreement they left with me to sign and return.

 

This may not help you but, if something similar applies to you, even in just one area, then there may yet be a glimmer of hope on the Charge Card issue. If it's Regulated, even Partly-Regulated, then Default Notice issues may apply for example.

 

To summarise, it seems that Charge Cards can be Unregulated, Partly-Regulated or Fully-Regulated, depending on how negotiations were conducted, and upon the facilities that the Card offered, either at the outset, or ones that were added later, such as Amex Flexi Account additions to stretch a Charge Card until it adopted very Credit Card like facilities.

 

Long shot...but worth investigating while you have the chance to do so.

 

Cheers,

BRW

[Traderx]

ok and i know you are busy, BUT........

 

If its unregulated, then how can they 'enforce' it?

[banker_rhymes_with]

Hello TraderX!

 

If its unregulated, then how can they 'enforce' it?

 

I think it then falls under the usual Business Contract issues, i.e. you had the money, they can prove you had the money etc.

 

The protection of being Regulated is not then there. The above would not be enough to Enforce a Regulated Agreement (despite what some banks like to think), but is enough to enforce an non-Regulated Agreement.

 

The Charge Card was meant to be a Business Card that was paid off at the end of every Month.

 

I'm just guessing now, but the type of Credit offered would probably not then be one that requires the Agreement to be Regulated...something along those lines.

 

Cheers,

BRW