Bankruptcy Petition - Help Needed Please

[banker_rhymes_with]

Hello TraderX!

 

WRT the Charge Card and Cash Withdrawal issues, the following Post by Atwozee could be worth reading, together with the Appeal Court Judgement:

 

Multiple agreements falling within section 18 CCA 1974 - Post #644

 

The Appeal Case being:

 

OFT v Lloyds, Tesco and Amex

 

This is the bit to read:

 

59. The difficulty for Mr Hapgood is that if the card can only be used to purchase goods or services from those suppliers who have agreed to accept the card, it cannot make any difference who has made the arrangements with them. The note on section 11 of the Consumer Credit Act at page 1252 of Part 2 of Civil Procedure 2005 provides an example of a restricted-use agreement by reference to the use of credit cards. The way in which the note expresses the position is of interest because it is just as apposite to the four-party structure as to the three-party structure, the identity of the person making any arrangement with the supplier being irrelevant. The note says:-

 

"A s.11(1)(b) situation arises where the creditor and the supplier are two different persons, e.g. where the customer uses his regulated credit card to pay for goods or services. The credit card issuer (the creditor) provides credit to the customer to enable the customer to buy from the retailer. The customer's contract of purchase is with the retailer; his credit card agreement with the card issuer is a restricted-use credit agreement within s.11(1)(b). It is "restricted" use because, although the card can no doubt be used at many retail outlets, it is not available for use absolutely anywhere. If the card-holder (the debtor) is able to draw cash on his credit card account, he is, of course, free to use that cash as he chooses. In that case the credit card agreement is a "multiple agreement" (within s.18(1)(a); when the debtor uses the card to pay for goods or services, the agreement is one for restricted-use credit within s.11(1)(b); when the debtor uses it to draw cash, it is an unrestricted-use credit agreement (see Sched. II, Pt II, Example 16)."

 

 

I think it may help to show how a Cash Withdrawal feature changes the nature of the Credit. If you only use the Charge Card to make Purchases, you can only Buy from Suppliers who accept the Card. IOW, Suppliers who already have an arrangement with, say, Amex.

 

If a Retailer does not accept Amex, then you cannot use your Amex Charge Card to Buy from them.

 

But, if your Charge Card has a Cash Withdrawal facility, then you can obviously nip over to the Cash Point next door, draw out Cash, and pop back to the same Retailer to Buy what you could not otherwise Buy using the Amex Charge Card iteself. Indeed, as you can also Buy anywhere else you jolly well feel like Buying from using Cash Pound Notes. Thus, the supplier can then be someone who does not have an Arrangement to accept the Charge Card.

 

Cash Pound Notes changes the classification of the type of Credit, so a Cash Withdrawal feature should then fall within the Act because of this, and that aspect then needs to be Regulated accordingly. Hence the fact that some Charge Cards are at least Partly-Regulated and some Fully-Regulated, usually because of the above Cash Withdrawal issues (although there may be other issues too, depending on where the Agreement was made and who negotiated it).

 

That's how I read it anyway.

 

Cheers,

BRW

Edited January 29, 2009 by banker_rhymes_with
Clarity.

[42man]

Some excellent info from BRW....(oh and Pam or Graham from SD are watching !!)

 

As for the rest of the regulated agreements....

 

I think you need to show some tough resolve TX in front of the judge....

 

Use the case studies

 

And if need be request the judge to order them to produce default notices and originals of the agreements....

 

It's not a case of whether you owe the money it's just that they aren't enforceable....

 

The Need for a Default notice

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.
  

• It is 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
  

• Notwithstanding the above points, 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)
  

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

• 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 a 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
  

A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “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 … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(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”.

 

Some more useful info here too -

 

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 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.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from .../content.aspx?LegType=All+ Legislation&title=consume r+credit+act++2006&search Enacted=0&extentMatchOnly =0&confersPower=0&blanke t Amendment=0&sortAlpha=0&T YPE=QS&PageNumber=1&NavFr om=0&parentActiveTextDocI d=2459360&ActiveTextDocId =2459451&filesize=643

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.

 

 

 

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by.

 

 

The Request for Disclosure

 

9. Further to the case, on xx/xx/2007 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice,.

 

10. To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person ( a copy of the request is attached to this Defence marked XXXXXX).

 

 

The importance of a copy of the credit agreement and its production before the court.

 

 

11. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts.

 

12. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

13. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - 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--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. 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.

 

14. 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 with 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.

 

15. 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 Sch 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 s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(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."

16. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order.

 

17. Notwithstanding point 13, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order.

 

18. Therefore the claimant must provide a copy of the agreement compliant with the regulations as laid out in points 10 to 16 of this defence to have any right of enforcement.

 

The courts power of enforcement

 

19. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 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

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).

20. Further more 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.

 

21. 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.....

And further more

36. 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.

 

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

 

 

50. 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.

22. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed.

 

23. Therefore I 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 courts powers of enforcement are surely limited in these circumstances.

 

24. Further more the defendant requires clarification on the status of the original agreement, the defendant requires the claimant provide a certified copy of the original agreement. 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 and also require written clarification that any copy document produced is authentic.the defendant notes that the Civil procedure rules also require the original documents to be made available under practice direction 32.

 

25. 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 original or destruction of the 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.

 

26. 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 Need for a Default notice

 

27. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement.

 

28. It is neither admitted or 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.

 

29. Notwithstanding point 27, 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).

 

30. 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 a 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.

 

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

[FANTASY CHARGES]

LOOKING AT THE ABOVE THE BIT ABOUT BEING LIABLE FOR ONLY £20 it APPEARS TO BE much TOO low meaning we believe this "thing" might be much earlier than 4/4/2000

 

note the data protection act 1998 had only just come into effect was it march 1st 2000 ? what does it say about data ???

 

if we could read more of the t & c might be able to spot more irregularities

 

 

are their more amex threads to compare the £20 loss liability with ???

[Viscount Stair]

The reason why the Charge Card would - subject to the points identified above, which were new to me but interesting to learn - be unregulated is the Exempt Agreements provisions in the Act and the Exempt Agreements Regs.

 

Basically, provided that there is no rolling credit facility and each month's expenditure is billed at the end of the month and payable in one fell swoop, then the Exempt Agreements Regs apply and the agreement does not benefit from any of the protections in the Consumer Credit Act.

 

However, if there are bells and whistles attached to the facility that go beyond the billing at the end of the month exemption, then I can see how the Act could apply to the Charge Card Agreement as well.

 

As for the £20 point, the Act provides for a maximum liability, which is now £50 but many companies only insist on a lower amount (often £0). It may be that Amex didn't increase the liability to £50 when the figures were uprated ... but it may not be.

 

I will have a look on archive.org

 

However, all of this detective work will be for naught unless the evidence can be got into the case.

 

42man: Do you have any thoughts on the appeal point (not necessarily ones you would trust to the open board)?

[Viscount Stair]

The contemporaneous Ts and Cs on archive.org make for very interesting comparison with what has been provided by Amex.

 

TX: You have PM mail (or will have soon)!

[Traderx]

apologies for absence. Have had a bit of shocking news, been diagnosed with heart disease and am now awaiting surgery....................

 

This is not totally unrelated to stress of this and previous stuff, is there any precedent for getting my bankruptcy put on hold (or even cancelled) for medical reasons?

[42man]

Desparately sorry to hear this......I would take any medical evidence / to the next hearing (or possibly write to the court asking for a long adjournment) although I really can't answer as to whether it may make a difference to the BR situation.

[Guest LBL Hunter]

sub

[Traderx]

Sorry for 'abandoning' this thread but had a bit to deal with............

 

I am taking all the previous posts information in, but it is all quite confusing.

 

I have a couple of simple questions (i think)

 

I SAR'd Amex and got back the letter i posted before and photocopies of my alleged agreement. what i didnt get was any information they hold on me or any statements or any info on charges etc. which is what i wanted.

 

Should i have sent a 'CPR' request? confused

 

The 40 days isnt up i should add but the letter seemed pretty final.

 

The judge at the last sitting gave their sols 14 days to file the next statement, i have heard anything as yet. I know a bit of leeway is given but at what point does that leeway end.

 

I am writing to the solicitors to tell them of my ill health and informing them that i wont be able to attend court until after i have surgery.

[palomino]

You can write to the other solicitors if you wish (I wouldn't). You must however write to the court.

[Traderx]

I have written to the court and said I cant attend until i have surgery.

 

I have now received the SAR pack from Amex and will start to go through it tonight.

 

Is there anyting in particular i am looking for (its the size of a telephone book)

 

Thanks

[42man]

Any more news on this TraderX ?

[Traderx]

No, I have informed the court i am awaiting surgery and cannot attend until after that.

 

I have heard nothing back from the court or from SD

 

I have received the SAR pack from amex but have not gone through it yet (its a daunting bunch of papers)

 

Trader X

[42man]

If you need any help please do shout.....

[Traderx]

cheers, i have isolated the default notice they have claimed to have sent. i am not at a scanner now but will scan it first thing in morning.

 

Interestingly? the terms and conditions sent with the SAR pack are different to the ones they sent and claimed were on the back of the application form (in response to cca request)

 

In order to go on the offensive for charges do i need to go through each statement and tot it up?

do i total all charges?

 

Is there anything else i can get from the SAR pack?

[Traderx]

[Traderx]

[Traderx]

[42man]

I'd wait for a second opinion BUT....It is dated 19th June 2007, it then asks you to REMEDY WITHIN 14 DAYS OF THE DATE OF THIS NOTICE....now unless they typed the letter AND served it on you on the same day then it doesn't give you 14 clear days !!!!

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/165197-default-notice-re-issue.html

 

quote the following from Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

 

Quote:

 

SCHEDULE 2

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE

DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY

SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

Regulation 2(2)

Details of agreement

 

1

A description of the agreement sufficient to identify it.

 

 

Parties to agreement

2

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

 

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

[42man]

DEFAULT NOTICE

 

The Need for a Default notice

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.
  

• It is 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
  

• Notwithstanding the above points, 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)
  

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

• 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 a 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
  

[banker_rhymes_with]

Hello Traderx!

 

OK, all a bit of a mess for Amex, although they will swear blind they do not have a problem.

 

Going back to the alleged Agreement, if you can suspend your disbelief for a few moments and assume the Terms they say were on the back of it, really were on the back of the Application Form, then did they state a Credit Limit that matched the one you did get?

 

I note there is a Table of Limits and Rates, but is yours there? If not, then that could mean a Prescribed Term is either missing or not stated in a way you could possibly fathom...see s127(3) in that case!

 

Moving on, although it is hard to read, the Terms have a Clause 3 and a Clause 7.2. However, Clause 7.2 relates to Interest, and Clause 3 I can't read, but it doesn't seem to relate to making Payments.

 

Default Notice

 

42man has already spotted that they have failed to allow you 14 Clear Days from Date of Service. 13/05/2007 was a Sunday. Thus, they could not have Posted the Default Notice until Monday 14/05/2007.

 

Even if they had used 1st Class Post, then delivery would be deemed to be within 2 Working Days of that, so Date of Service would not have taken place until 16/05/2007 and 14 Clear Days takes us to 30/05/2007.

 

However, they say 14 Calendar Days from the Date of this Notice. That makes a Deadline of 26/05/2007.

 

Thus, you were not given 14 Clear Days...Parliament made it clear it had to be 14 Clear Days, not 13, 12, 11, 10, or 10.25 Days.

 

It gets better...

 

Going back to those Terms, i.e. Clause 3 and Clause 7.2, they don't match the Default Notice. So which Terms do they mean? 7.2 relates to Interest, it makes no mention of Debt Recovery Costs.

 

Are there any unlawful charges on the Account? If so, then the default sum could also be pants too...IOW, it's not accurate.

 

Plus, they have failed to give underlined words greater emphasis relative to words next to them, so if all are Upper Case already then, i.e.:

 

THEY HAVE DONE IT LIKE THIS

 

WHEN IT SHOULD BE LIKE THIS

 

OR IT SHOULD BE LIKE THIS

 

Finally, note that they have a little clause 10.2 that says they can Terminate at any time by giving immediate notice. Well, they would say that, but it can be argued that is an unfair Contract Term, as it puts them into a much stronger position than you, i.e. you have a right to Terminate at any time, but are unlikely to want to do so if you have a large balance. Whereas it puts them in a strong position if they can ask for a large balance back at any time.

 

Moving on again...this is clearly a default situation, so the Act makes it clear they must follow s87 and s88. You know it's a default situation because they said so both before and after Termination.

 

Before Termination: they said so in the Default Notice, i.e. you have failed to make payments, and they state a default sum.

 

After Termination: they said so in the Termination letter, because they tell you that they will be registering a Default with the Credit Reference Agencies.

 

Thus, they cannot try to use s98 and their own Clause 10.2, because s98(6) makes it clear that s98 cannot be used in a default situation. That then takes away any slight hope that the Act supports their 10.2 Clause via s98...it doesn't and arguably never did anyway.

 

That leaves them with s87/s88...Termination in a Default Situation!

 

To get that right, they need to issue a valid Default Notice that complies with s88, that's if they are to enjoy the benefits of s87. The benefits being the right to Terminate and the right to take the next step to ask you for early payment of sums that were only due in the future.

 

They cocked up the Default Notice, and then Terminated, and all of that was whilst in a default situation by their own admission and by their own actions.

 

They have therefore blown their s87 benefits, and for ever, as the Agreement is now ended, and so they can't now go back and fix the defective Default Notice.

 

They have no right of action.

 

I do hope this will lift your spirits.

 

Cheers,

BRW

Edited March 18, 2009 by banker_rhymes_with
Added points...

[banker_rhymes_with]

Hello Traderx!

 

...and another thing...

 

Did they send you a Signed Statement of Account along with your s78(1) Response?

 

I bet they didn't!

 

In which case, they are still in default of your request, long after the request was made.

 

In that case, they were constrained via s78(6) ages ago, and should not have issued a Default Notice, and should not now be taking you to Court in any case.

 

I can't think of much else they could get wrong...they seemed to have more or less covered everything!

 

I'd send them a CPR 18 Request now asking for copies of all of your Statements (if you do not have them), so you can start picking through them to look for unlawful charges.

 

I'd also send them a SAR anyway, just to see what sort of Agreement comes back from that...so you can compare it to the other one! That has to be worth £10 plus Special Delivery.

 

Cheers,

BRW

[Traderx]

Spirits lifted

 

thank you 42man and BRW

 

BRW yes i have the SAR request pack which is where i got the 'default' notice from.

 

I need to reread your post to ensure i have got it all right and understand exactly what you are saying then go through the statements and collate all the charges and total them up.

 

Then i guess i file a counter claim for the charges plus interest.??

[banker_rhymes_with]

Hello Traderx!

 

I need to reread your post to ensure i have got it all right and understand exactly what you are saying...

If you need anything clarifying, just ask. If I'm not around, someone else will jump in.

 

...then go through the statements and collate all the charges and total them up.

 

Then i guess i file a counter claim for the charges plus interest.??

Yes, certainly.

 

Also, make sure you get the message across that the charges undermined the alleged default total they stated on the Default Notice. Refunding them won't alter the fact that they rendered the default sum inaccurate at the time of the Default Notice, rendering the Notice itself defective (on that basis alone, let alone all the others)!

 

Amex will probably try to refund those to pretend they are being helpful, but if they have blown the Default Notice and Termination, then the sum total of what they can ask from you is £249.00!

 

That being the sum that was due before Termination. All the rest was only due after Termination. Amex kissed that goodbye when they screwed the pooch on s87.

 

This is a link to The Consumer Credit Act 1974, use that to click on the various sections to see what things like s78(1), s78(6), s98(6), s127(3) actually mean:

 

Results within legislation - Statute Law Database

 

I hope this has all helped.

 

Cheers,

BRW

Edited March 19, 2009 by banker_rhymes_with
Typo, Clarity. Another Typo!

[Traderx]

One of my old neighbours has forwarded me this sent to my old address, no idea when it arrived. Cant believe the court doesnt have the correct address