Is this Amex application enforeceable

[Elgrand]

Hi BRW,

 

I have sent an account in dispute letter and will follow up with the Subject Access request very soon.

 

Hi Rory,

 

I am also guessing that they don't have any more info and the application is just about all they have.

 

But the SAR will unveil that and once I have received anymore info from them I will post accordingly.

 

Thank you both for your support and advice.

Edited February 20, 2009 by Elgrand
Typo

[Elgrand]

Just posting an update on this.

 

I have sent A Subject Access Request to Amex by recorded on the 10th Feb.

 

I have received today a letter from Amex, thanking me for my recent communication and giving them the opportunity to deal with my complaint.

 

They are in the process of investigating issues I have raised and assuring me they will respond within 28 days.

 

I would imagine that letter is the normal kind of response.

 

They also sent me a copy of the complaints procedure and in a separate letter a new card, I imagine to tempt me to use it, which I won't.

 

They are now in receipt of my SAR, so await with baited breath what their response will be.

 

EL.

[banker_rhymes_with]

Hello El!

 

I would imagine that letter is the normal kind of response.

 

Yep, it's just something wholly automated, routine and as sincere as a seller of pre-used horses from a travelling circus. All it means is they are busy little bankers working behind the scenes trying to work out how to shaft you!

 

It's mainly a file filling letter to make it look as if they are decent, caring and responsible. Something that will look good in their file if they get hauled up by, say, FOS or Trading Standards.

 

Just file it and don't give it any thought at all.

 

Cheers,

BRW

[Elgrand]

Hi BRW,

 

I think your comments sum's them up perfectly. You did bring a smile to my face as well.

 

Thank you, will sit tight and and await my SAR.

 

Also thanks for that link to Re: why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

 

El

 

[Desperate Daniella]

Dear Elgrand,

 

I only just found you by accident, as you are showing in the MBNA forum, so would have missed it in new postings.

 

I am so glad I did. I have been trawling for two months trying to find someone with exactly the same application form as mine, and you have it.

 

My question is this. On the reverse of the application form they have sent you, did they photocopy "Conditions", which apparently are enforceable under CCA 1974? In fact, was there anything overleaf at all, because the front refers to the Personal Information overleaf, but then just the Terms and Conditions (no mention of overleaf).

 

My so-called agreement was photocopied in the most bizarre way, and I don't think the 'back' would fit on to the front of the application form which is what they are trying to imply.

 

Just about to do a SAR too, but would really love to know where your T & Cs were.

 

Thank you.

 

DD

[Elgrand]

Hi DD,

 

Nice to hear from someone with the same application.

 

I guess this is in the wrong place, not sure how to get it moved though.

 

Some answers to your questions:

Nothing on the back of the application form from them at all.

It does mention as yours, we should read the paragraphs set out overleaf which set out how we collect and use information about you for the purpose of providing the card

Nowhere on this application does it mention T & C overleaf.

No Credit limit.

I got a few things attached, such as 2007 T & C's and 11 A4 size pages of what I believe they are implying as the original T & C's, two of those pages have reference to the personal info they speak about as being overleaf. It also mentions your pin, which I don't believe I had in 2002?

 

Hope I've been of some help

 

Thanks Elg.

[Elgrand]

Hi DD,

 

Have you got an example of the implied T & C's being on the back of the application form they sent, also, when was that?

 

Since I sent the SAR and the dispute letter, all I've heard from them, is a letter, stating my complaint is being dealt with.

 

Elg.

[Desperate Daniella]

Hi Elg,

 

Thank you for coming back so promptly. This means I must have a totally unique application form. I don't think so.

 

You really have been of immense help.

 

I don't have a scanner, and tried to get the pages I was sent up on photobucket but failed miserably, so I have typed out what I got on my thread Amex 60-Second Application Form - 2000 There might be one or two sections I haven't completed in full - death, bankrupcy, etc.- but everything related to interest, APR is there - all the bits which would be the prescribed terms.

 

As you'll see from my thread, I got just the application form with "Conditions" on the back. They didn't send pages of stuff, just the single sheet of paper. The layout was crazy - the application form was phocopied with the top of the form one-third down the page - top third blank - and the second page started at the very top with the bottom - almost third - blank. This made me very, very suspicious, which is why I have been on the hunt for another "60-second".

 

What they have done I am sure was intended to deliberately mislead me. The "Conditions" are not dated, so clearly they are supposed to be what was on the back of the form. They may well be correct for the time, but I personally think they were on a separate sheet or leaftlet, which of course makes the "agreement" unenforceable.

 

To get your post moved, hit the red triangle at the bottom of the page, and this will let you send a message to one of the site team asking them to move you to Amex.

 

Alphageek and Yeats also have current threads and have had court proceedings started against them. I have no desire for my day in court if I can avoid it, and if there is nothing on the back of the application form, there is a good place to start.

 

Let's keep in touch.

 

DD

[Elgrand]

Hi DD,

 

Yes please keep in touch.

 

I will look at your thread very soon.

I don't think they copied the reverse side of the application and if they did, it still wouldn't have the T & C's laid out as should be.

 

I will ask for the thread to be moved and appreciate your help.

 

Elg.

[maroondevo52]

Thread moved

[Elgrand]

Hi All,

Just got a letter from Amex in response to my account in dispute letter, it's two pages, will post as soon as I have scanned.

 

Elg.

[Elgrand]

Seem to have lost the capability to attach anything to this post?

[Elgrand]

I will have to type the letter,

 

Dear Mr .....

 

We write further to our letter dated ......... (Response to my CCA)

 

Your Request

 

By your letter Date...............(My dispute letter) you have requested the following information

 

1. A copy of the contract that binds both parties.

 

Our Response in Compliance with the Consumer Act 1974 ("CCA 1974")

 

Please find enclosed for your information

 

1. A copy of the original signed application form ("the Agreement");

 

2. A copy of the oldest terms and conditions that we hold for the account. The original terms and conditions are no longer maintained on our system, but the set provided is substantively the same as the original and should be suitable for your present purposes; and

 

3. A copy of the latest terms and conditions applicable to the account

 

We have not included a copy of the card statements, on the assumption that you already have the originals in your possession. The card statements are evidence of debt and verification of our claim against you. In compliance with Section 78 CCA 1974 the statements show for the period of the agreement:

 

a. the state of the account

b. the amount currently payable by the debtor, and

c. the amounts and due dates of any payments which will later become payable by the debtor

 

Page Two.

 

The Agreement is signed by you and constitutes your acceptance of the terms and conditions of the account. Subsequent use of the account demonstrates continued acceptance of the terms and conditions and willingness to be bound by them

 

We have been advised that the Agreement could only be unenforceable if a. it were not signed by the debtor, or b. it did not contain the prescribed terms as set out in Schedule 6 CCA 1974.

 

In summary, the terms required for a running account credit agreement are:

 

1. A term stating the credit limit or the manner which it will be determined or that there is no credit limit;

 

2. A term stating the rate of any interest on the credit to be provided under the agreement;

 

3. A term stating how the debtor is going 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--

 

a. number of repayments

 

b. amount of repayments

 

c. frequency and timing of repayments

 

d. dates of repayments

 

e. 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.

 

We trust the response is satisfactory. If you are of the view that this does not meet your request, we would ask you to provide us with clarification of your request. Amex makes every effort to respond fully to customers ' reasonable enquries, but is unable to offer any further assistance in this instance as is it not clear what additional information is being sought.

 

Yours Sincerely.

[Elgrand]

Now with that letter came almost the exact items in the initial response to my CCA. They never sent any statements this time.

 

The application form is the same, without prescribed terms no credit limit, incorrect heading to name a few.

I don't think they have anything else

Could anyone having a read, advise of a good response to this. Should I respond?

They are also now in possession of a SAR.

I guess i should use the CPR.16 route, if the SAR does not unveil whether they have anything else or not.

 

Thanks in advance for any help.

 

Elg.

[Desperate Daniella]

Hi Elg,

 

You'll get more expert advice, but it's clear from what they are saying that the T&Cs (prescribed) terms were on a separate document. They are not trying to say they were on the back of the agreement. For an agreement to be enforceable the prescribed terms have to be within "the four walls" of the agreement. They can be overleaf, or if it's a big document you could have a very large sheet of paper with several folds bringing it down to, say, A4, size, but they absolutely cannot be on a separate leaflet, stapled on, etc. Here is the House of Lords authority:

 

Furthermore in the in the judgement 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 contained in documents embodying regulated consumer credit agreements.” Some of this information mirrors the terms prescribed in Schedule 6, but some does not.”

Contrasting the provisions of the two Schedules the Judge said:

“In my judgement the objection 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 S 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.

Also if you read Pelham's post on my thread, from what I have told her about my 'Conditions' there is no annual interest rate stated which is a prescribed term.

%APR is not the same, which I didn't appreciate. I have got to get my whole thing scanned in this week for her, because there could be a number of discrepancies. In the meantime I have sent a very short letter to Amex as I think you know.

I don't know about the situation with saying they haven't got the original T&Cs but have provided something that is near enough. I have seen that excuse given on another thread - not certain if it is an Amex one - and you need to know how to reply to that.

Good luck. I'll let you know when I get a reply too.

DD

[the_shadow]

This company really is run by monkeys:p

 

T&C are legal documents.. ok theyre not as important as the agreement but they govern what happens to the agreement in certain circumstances.. as far as I'm aware the S78 is deemed not responded to unless they send a "true copy" of the agreement + the t&c in effect at the time the contract/agreement was taken out plus any variations...

 

Its the reason they sent me 4-5 different copies of t&c's with my front page of the application form.

 

I dont know if a judge would deem this as a catastrophic problem if the orignal t&c's werent available to investigate but they should frown on any company that destroys legal documents without thinking of future implications:-D

[Elgrand]

Hi DD,

 

Thank you for all that information and support.

 

I really don't think they have true original copy.

 

They mention in the letter that as the agreement is signed by me it constitutes my acceptance of the terms and conditions and subsequent use demonstrates continued acceptance of the terms and conditions and the willingness to be bound by them.

 

I wonder what a judge would say to that statement, with no original copy with the prescribed terms on it.

 

There's a lot of stuff in this letter that needs analyzing and I need to work out what response if any to send back.

 

I'll keep an eye on yours with great interest too and thanks again

 

Elg.

[Elgrand]

Hi PMW and thanks,

 

This company really is run by monkeys:p

 

It does make you wonder.

 

In the letter, they make a statement saying: We have been advised that the agreement could only be unenforceable if............

 

I wonder who is advising them???

 

Elg.

[Desperate Daniella]

Morning Elg,

 

By accident I just came across another thread which includes Amex. It is credit card hell If you look at posts 14-17 you'll see that the Contender got the same "substantively the same" rubbish, and the letter Scabhunter said to send. I've just asked the Contender if they have had a reply yet, but probably not as I'm sure they would have posted it.

 

DD

[Elgrand]

Hi DD,

 

Many thanks for that, I've had a look and certainly take some extracts from that letter posted by scabhunter (i'm sure that will be ok!)

 

It's quite similar to my initial letter which I also had a lot of help with, putting the account into dispute.

 

I will have to make some changes and make some reference contesting the reasons they think they have a valid agreement.

 

I'm not being lazy, just not too good at writing letter's and getting the wording right, so I don't do myself an injustice.

 

Once I've had a go, I'll post and let you all see and take on board any advice offered.

 

Thanks again,

Elg.

[Elgrand]

Forgot to say a big thank you to maroondevo52 for moving the thread.

 

Thanks Elg

Edited February 22, 2009 by Elgrand
typo/typo

[Monty2007]

It is worth preparing yourself for a summons since Amex will almost certainly litigate against you once you have been round the mill with 2/3 DCA's. Amex do not give up easily (if fact they do not give up period), even when they just have an application form to go with from 2002. The one you have posted up certainly does not contain the prescribed terms but a non-CCA 1974 familiar judge (or one that is pro Banks) may not agree, hence you need to prepare your case and arguments very carefully in preparation.

 

I would advise you reading all the Amex threads and also checking out the default notice.

[Desperate Daniella]

Hi,

 

Have you two seen Cunning Plan's thread Help! AMEX No CCA and they've started court action ?

 

He posted yesterday that prior to the directions hearing Brachers have written to him saying their clients will agree that their claim should be dismissed subject to there being no costs order.

 

This has been going on for almost a year. Read the thread. Brachers repeatedly failed to come up with a proper CCA, offered a 50% reduction last year and now this!

 

DD

[Elgrand]

Thanks Monty

 

I have taken on board all your comments and they are very much appreciated. Looking around the cag at other similar threads does give you an insight on what possibly lies ahead and I am trying to prepare for that.

 

I'm not very clever with this sort of thing but feel confident enough with the help and support I'm getting here, to see it through, no matter what.

 

My circumstances now mean I have no other choice. I'm in a mess and need to sort it out somehow. This site has been like a lifeline for me, a while ago I felt I had no hope and now I'm optimistic that at the very least I will find a way of resolving my problems.

 

So sorry for rambling on.

 

Do you feel there is any point in responding to their last letter?

Or would it be best to wait for the response to the SAR and see what else they come up with.

 

Elg

[Elgrand]

Hi DD,

 

Just read that thread, great news, thanks for the info.

 

Elg