Jump to content


Elgrand

Is this Amex application enforeceable

style="text-align:center;"> Please note that this topic has not had any new posts for the last 3441 days.

If you are trying to post a different story then you should start your own new thread. Posting on this thread is likely to mean that you won't get the help and advice that you need.

If you are trying to post information which is relevant to the story in this thread then please flag it up to the site team and they will allow you to post.

Thank you

Recommended Posts

Dear elg & DD

 

I have been fighting Amex since 2005. I was initially domiciled in England and had NCO "manage" my account on behalf of Amex before I sent them both a requested under S78 of the CCA 1974. They supplied an application from much the same as elg's for one account and nothing for the second, they were both opened around 2003. I had Brachers offer me 50% to settle but they had added over £3 K in fees. The accounts have been in dispute since and I have not paid them a dime.

 

I then moved to Scotland and Amex are now litigating against me, I can't say too much at the moment but the case is progressing toward a proof (presenting evidence in front of a Sheriff) and possibly a legal debate. If I lose it will be >£30 K including costs, however they know I don't own a property hence will not be able to go for a charging order. Hence they have to decide if I am worth all these costs given their chances of recovery are slim.

 

Amex sols (BTO) have indicated that they will go "all the way" which can be taken either as a bluff or that they will do as they say. I have nothing to lose so I am up for the battle ahead and like you have taken inspiration from past and present CAG cases.

 

The point I really would like to make to you (and others) is that the application form(s) that we have can be enforced if the Judge/Sheriff is either poorly informed/bent/ignorant (or a combination of these) such that you/we are stuffed, possibly even before the evidence is considered. Hence you have to consider this as a possibility as I have done and decide if the course of action in asking the court to declare the alleged agreement unenforceable.

 

There are some spectacular cases of success on CAG and also some that have lost, some of which will be cases that have been superbly well prepared by some very intelligent and well briefed people.

Share this post


Link to post
Share on other sites

Dear Monty,

 

Sound's like you've had a huge battle with them already and since 2005, certainly shows their reluctance to give up pursuing you. I sincerely hope that you too have a successful outcome as many other caggers have had.

 

I do understand what you are saying, when you mention that even the very best prepared cases can have negative outcomes, depending on the judge at the time of the hearing.

 

It is an important point you have made. It would be easy for me to get carried away with the notion that the application I have is unenforceable so case closed.

 

In reality, it's not going to be easy at all and I will do my best to read and learn from others and become more informed.

 

I don't like having to go down this road, but I keep a positive mind with the fact that all these card companies have had thousands off me over the last 6 or so years.

Share this post


Link to post
Share on other sites

Ok, I fear I must reply to the last letter received and have been browsing the site to see if I can give a suitable response.

 

I came across one that was posted by rory32 I believe (sorry rory if that's incorrect) I copied it but cannot remember what thread, anyway it went along the lines of accepting the statement they have made.

 

Please find enclosed for your information:

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

 

And reply with the statement:

 

I am pleased to see that you confirm this as a true copy of the original agreement executed by ourselves on the (date).

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer credit Act and is therefore unenforceable under section 127(3) of the same act.

 

Any thoughts?

 

Thanks Elg.

 

 

Share this post


Link to post
Share on other sites

Hi Elg,

 

If you want to find anyone's threads, just click on their name on the left and it will give you all their threads/posts.

 

I am a great believer in short letters like yours above, as opposed to quoting too much stuff at them. A barrister friend of mine says it's better to just say Section this, or Schedule that - you don't have to type out what they actually say. It's up to the recipient to go and check it and read it for themselves.

 

But others may disagree, so I would wait for some other replies.

 

DD

Share this post


Link to post
Share on other sites
Ok, I fear I must reply to the last letter received and have been browsing the site to see if I can give a suitable response.

 

I came across one that was posted by rory32 I believe (sorry rory if that's incorrect) I copied it but cannot remember what thread, anyway it went along the lines of accepting the statement they have made.

 

Please find enclosed for your information:

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

 

And reply with the statement:

 

I am pleased to see that you confirm this as a true copy of the original agreement executed by ourselves on the (date).

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer credit Act and is therefore unenforceable under section 127(3) of the same act.

 

Any thoughts?

 

Thanks Elg.

 

 

 

I agree with short and sharp letters these days too. Although i think referring to the quote DD made earlier in post 40 would be useful in this instance:

 

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."

 

Let them try to wiggle out of that one. You'll either get no reply or a template that doesn't answer it properly. That will give you confirmation that they have NO reply that could possibly justify (in Law) their position.


:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

Share this post


Link to post
Share on other sites

Hi

 

I really do not wish to sound cynical here but all these responses are academic. Infact Amex/Brachers/NCO or whoever else Amex has instructed will ignore you, their process will continue as the Amex cases have shown to a strike-out hearing from which your/our fate will be determined.

 

Amex get sackloads of these letters each day (given the numbers on CAG) and it really does not get anyone anywhere. IMO............

Share this post


Link to post
Share on other sites
Hi

 

I really do not wish to sound cynical here but all these responses are academic. Infact Amex/Brachers/NCO or whoever else Amex has instructed will ignore you, their process will continue as the Amex cases have shown to a strike-out hearing from which your/our fate will be determined.

 

Amex get sackloads of these letters each day (given the numbers on CAG) and it really does not get anyone anywhere. IMO............

 

It keeps the postoffices and postpeople in a job :D:D:D:D:D:D


Are You as Anonymous on CAG as You Think You Are? *Link*

 

The CAG is a free help site,should you be offered help that requires payment,please report it to site team.

 

Deal with your debts:

STEP ONE - Dont Panic! | STEP TWO - Priority & Non Priority Debts | STEP THREE - Personal Budget Sheet | STEP FOUR - A SAFE bank Account | STEP FIVE - Dealing with Priority Debts | STEP SIX - Non-priority Debts | STEP SEVEN - Non-Priority Debt-Repayment Opt1 | STEP EIGHT - Non-Priority Debt-Repayment Opt2 | STEP NINE - Perils of Consolidation | STEP TEN - RE-Evaluate Frequently

 

***** SERIOUSLY IN DEBT, DONT KNOW WHAT TO DO, TRY NationalDebtLine's MoneySteps *****

 

 

IMPORTANT: Please take my advice in the spirit it is given and on the basis that I am expressing my opinion, These opinions are not endorsed by CAG in anyway and are offered informally without prejudice or warranty of any kind. These opinions are solely based upon the knowledge I've gained from this fantastic site and life in general. I have NO legal training.

Share this post


Link to post
Share on other sites

Hi,

 

Sorry I haven't replied to anyone for a few day's, I lost my network capabilities.

 

Monty,

I understand and thank you for your thoughts on this, but mine are and will always be keep pushing, keep trying and I will carry on writing letters whether their ignored or not.

In fact, Amex have not called me about this (unless they've done it under the MBNA guise). They have corresponded by letter.

 

DD, Davey,

Thanks again for the comments, I will compose the response with snippets you two have provided include the parts from Rory's letter.

I will update once that is done.

 

PMW,

The local post office are getting sick of the sight of me, all those RD's,

only joking, I'm sure they love me in there really, lol.

 

Thanks Elg.

Share this post


Link to post
Share on other sites

Hi,

 

Sent my short response letter on the 4th and received an equally short reply on the 11th, basically saying that as I am still dissatisfied with their response, my complaint has now been escalated and will be investigated further.

 

Be assured that you will receive a response as soon as possible.

 

Bog standard reply I know, but just keeping the thread updated.

 

I now await their investigation result!!!

 

Elg.

Share this post


Link to post
Share on other sites

Anyone know what the rules/laws are on Amex corporate card? WOuld be interested to see if we have a case here?

Share this post


Link to post
Share on other sites

Sorry K1mmie,

 

Can't help you with that.

 

Elg

Share this post


Link to post
Share on other sites

Just received a letter in response to my last one disputing the enforceability of the agreement.

 

Will post both later, when I get my scanner back up.

 

Also,

 

I have just found my acceptance letter from Feb 2002

 

I will also post this up later

 

Elg

Share this post


Link to post
Share on other sites

Below is an example of the second letter i sent to Amex, which i now have a response from them.

 

Re: Your letter dated xxth Feb 2009 In response to my request under the Consumer Credit Act 1974 xxxxxxxxxxxxxx

 

Dear Sir/Madam,

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your response to my dispute letter dated xxth Feb 2009

I am pleased to see that you confirm this as a true copy of the original agreement executed by ourselves on the xx Feb 2002.

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer credit Act and is therefore unenforceable under section 127(3) of the same act.

 

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."

 

As this is the case I will of course be making no further payments on this agreement, any further action on your part to enforce will be vigorously contested.

Please note you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies including any defaults. Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’, you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you fail to respond within 21 days, I will expect that this means you agree to remove all such data.

 

I shall also be considering further action to recover unlawfully applied interest and charges that have been levied on the “Agreement”.

 

I look forward to your reply.

 

Yours faithfully xxxxxxx

 

I Will post the response asap.

 

 

Elg.

 

 

 

 

 

Share this post


Link to post
Share on other sites

As the manage attachments is not available, I will type up the response to the above letter.

American Express Membership Number xxxxxxxxxxxxxxxx

 

Dear Elg,

 

Thank you for your letter dated x march 2009

 

We have enclosed further copies of your signed application form (the Agreement) plus the oldest and latest terms and conditions applicable to your account.

 

You will see that by signing the form you were entering into a Credit Agreement. The signature box contains the phrase "This is a Credit Agreement regulated by the Consumer Credit Act 1974. Sign only if you want to be legally bound by it's terms."

 

When entering into the Credit Agreement with you., we were required to send you three copies of the agreement. The first copy (set out as an application form) was sent out in duplicate. One copy would have been signed by you and returned to us.. The second copy (unexecuted, in that it would not have been signed by us) would have been yours to keep.

The third copy copy sent to you would be would be an executed copy of the Agreement as by that stage it would have been signed by you and by us. We do not send out a version that shows both of our signatures, but nevertheless send an executed copy, which is the card carrier copy sent with your American Express Credit Card. This entirely satisfies our obligations under applicable legislation.

 

The executed copy excludes the signatures, but nonetheless complies with the "true copies" requirement of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. These regulations allow us to omit any signature and or signature box, so although the card carrier is the executed copy, it does not have to include our respective signatures. On the basis that you have received and have been using your Credit Card, we can only assume you have been provided with the card carrier and therefore, the executed copy of the Agreement.

 

We are in no doubt as to the fact that the debt is genuinely owned by you and believe that since your account was opened, you have been provided with all the documents necessary to evidence the debt. If you genuinely believe the debt is not owed to us, we would ask you to provide details of the company to whom you believe the debt is owed. Clearly it cannot be the case that you have spent a significant amount of money on your credit card that has not been paid back, without their being a legal entity to which that money should be repaid.

 

Continued../

 

In the meantime, may we remind you that your account remains outstanding in the sum of £....... Despite our requests, payment has not been received from you. Should the account remain unpaid, the account will be cancelled and referred to an external collectionagency.

 

We ask that you direct any ongoing grievances in this matter to the Financial Ombudsman Service, details of which are in the enclosed booklet.

 

We will not enter into any further corrspondance with you on these particular issues.

 

 

xxxxxxxxx

Edited by Elgrand
Typo

Share this post


Link to post
Share on other sites

They are a cocky bunch of muppets are they not!

 

Have you done the CPR requests on this Elgrand?


:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

Share this post


Link to post
Share on other sites
They are a cocky bunch of muppets are they not!

 

Have you done the CPR requests on this Elgrand?

Oh yes,

 

I am still waiting for the information from my SAR and will try and work out the interest and unfair fee's against what is outstanding and if it's possible, claim back what's remaining if it's in my favour, due to the unenforceable agreement and go from there.

 

At least I think that's right.

 

I'm sure someone will kindly correct me if I'm wrong.

Edited by Elgrand
Re- worded a sentance

Share this post


Link to post
Share on other sites

This is the letter sent to me on 20/02/2002 thanking for applying for the card and stating my application was successful.

 

The application date was stamped 15/02/02 and signed by me 13/02/02.

 

So reading their recent reply to me,

 

When entering into the Credit Agreement with you., we were required to send you three copies of the agreement. The first copy (set out as an application form) was sent out in duplicate. One copy would have been signed by you and returned to us.. The second copy (unexecuted, in that it would not have been signed by us) would have been yours to keep.

The third copy copy sent to you would be would be an executed copy of the Agreement as by that stage it would have been signed by you and by us. We do not send out a version that shows both of our signatures, but nevertheless send an executed copy, which is the card carrier copy sent with your American Express Credit Card. This entirely satisfies our obligations under applicable legislation.

Am I to presume that between the dates of the 15/02/02 and 20/02/02

they sent me a third copy that would have been the Executed copy and would have been signed by me and them?

 

Any comments most welcomeamex 2002 back.pdf

amex 2002 front.pdf

Share this post


Link to post
Share on other sites

I'm still looking through all my old paperwork and I have not come across a duplicate of the application form that they have suggested.

 

I do have a letter dated in code ending (09/04 )sent to me which had a card attached. Note: this may be the card sent in 2002, but not sure.

 

When you remove the card it states.

 

Important- please check the validity date on the card.

 

Please sign immediately using a ballpoint pen., then call to activate your Account. By signing and using the card you will be accepting the Cardmember Agreement overleaf

 

This is an important document. Please retain it for future reference.

 

If someone wants me to scan it, I will.

 

Elg.

Share this post


Link to post
Share on other sites

Just had my SAR back from Amex and it has all my statements from 2002, so gives me a chance to add up all the relevant sums.

 

Still only the same copy of the application sent.

 

Hard on it's tail was a default notice served under section 87(1) of the consumer credit act 1974, dated 01/04/09 giving me 14 days to to remedy the breach.

 

Elg.

Share this post


Link to post
Share on other sites
Just had my SAR back from Amex and it has all my statements from 2002, so gives me a chance to add up all the relevant sums.

 

Still only the same copy of the application sent.

 

Hard on it's tail was a default notice served under section 87(1) of the consumer credit act 1974, dated 01/04/09 giving me 14 days to to remedy the breach.

 

Elg.

 

Elg, what was the rememdy date, it should be the 18th April which is 14 clear days to resolve.

 

PmW


Are You as Anonymous on CAG as You Think You Are? *Link*

 

The CAG is a free help site,should you be offered help that requires payment,please report it to site team.

 

Deal with your debts:

STEP ONE - Dont Panic! | STEP TWO - Priority & Non Priority Debts | STEP THREE - Personal Budget Sheet | STEP FOUR - A SAFE bank Account | STEP FIVE - Dealing with Priority Debts | STEP SIX - Non-priority Debts | STEP SEVEN - Non-Priority Debt-Repayment Opt1 | STEP EIGHT - Non-Priority Debt-Repayment Opt2 | STEP NINE - Perils of Consolidation | STEP TEN - RE-Evaluate Frequently

 

***** SERIOUSLY IN DEBT, DONT KNOW WHAT TO DO, TRY NationalDebtLine's MoneySteps *****

 

 

IMPORTANT: Please take my advice in the spirit it is given and on the basis that I am expressing my opinion, These opinions are not endorsed by CAG in anyway and are offered informally without prejudice or warranty of any kind. These opinions are solely based upon the knowledge I've gained from this fantastic site and life in general. I have NO legal training.

Share this post


Link to post
Share on other sites

Hi PMW,

 

There is no specific remedy date, what i mean is that it is just stated that to remedy this breach the payment due on your account of £xxx must be received within fourteen calender days from the date of this default notice.

 

Do they have to give a specific date? Should it be fourteen working days?

 

 

Thanks Elg

Edited by Elgrand
Inaccurate sentance deleted

Share this post


Link to post
Share on other sites
Hi PMW,

 

There is no specific remedy date, what i mean is that it is just stated that to remedy this breach the payment due on your account of £xxx must be received within fourteen calender days from the date of this default notice.

 

 

 

Thanks Elg

 

then its a duff DN :D unless delivered by courier on the same day its dated 14 calender days doesnt allow for postage (service) on you, which is two working days for first class... dont suppose you kept the envelope?

 

PmW


Are You as Anonymous on CAG as You Think You Are? *Link*

 

The CAG is a free help site,should you be offered help that requires payment,please report it to site team.

 

Deal with your debts:

STEP ONE - Dont Panic! | STEP TWO - Priority & Non Priority Debts | STEP THREE - Personal Budget Sheet | STEP FOUR - A SAFE bank Account | STEP FIVE - Dealing with Priority Debts | STEP SIX - Non-priority Debts | STEP SEVEN - Non-Priority Debt-Repayment Opt1 | STEP EIGHT - Non-Priority Debt-Repayment Opt2 | STEP NINE - Perils of Consolidation | STEP TEN - RE-Evaluate Frequently

 

***** SERIOUSLY IN DEBT, DONT KNOW WHAT TO DO, TRY NationalDebtLine's MoneySteps *****

 

 

IMPORTANT: Please take my advice in the spirit it is given and on the basis that I am expressing my opinion, These opinions are not endorsed by CAG in anyway and are offered informally without prejudice or warranty of any kind. These opinions are solely based upon the knowledge I've gained from this fantastic site and life in general. I have NO legal training.

Share this post


Link to post
Share on other sites

Thanks PmW

 

Yes, I do have the envelope. After listening to everyones advice I keep all of them.

 

The post date on the envelope is 02.04

The letter is dated 01.04

Received by me today 03.04 along with the recorded delivery SAR which was a seperate letter.

 

I will post it up if needed, but won't be able to do so until tomorrow.

 

Elg.

Share this post


Link to post
Share on other sites

PM me if you would like to see the default notice.

Edited by Elgrand
pm me if you would like to see the default notice

Share this post


Link to post
Share on other sites

CR*P, CR*P and more CR*P!!! The default notice needs to give a specific day to rectify by, not just 14 calender days. Let them terminate on this DN and they are stuffed:lol:


<<<If I have helped please tickle the scales;-)<<<

Share this post


Link to post
Share on other sites

  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...