Is this Amex application enforeceable

[Elgrand]

Edited February 5, 2010 by Elgrand
some pers info

[Elgrand]

[Desperate Daniella]

Hi Elgrand,

 

What do you think? I need to read through your entire thread again and can't do that tonight but will over the weekend.

 

The only thing I would say is that they come in heavy and say they have instructions to proceed but then further down they say ignoring the letter MAY lead to legal proceedings.

 

I'm going to pm you about something too a bit later. You too Shadow!!

 

DD

[smouk]

Interesting! I've just received the 'discount' Settlement Offer letter from the good lady of Brighton so I'm guessing I'll be hearing from Brachers by Easter!

 

My hunch is that Brachers are involved so Amex may chance their arm on litigation. Start thinking through a defence just in case.

Just to recap then: Duff CCA, duff DN, no formal cancellation, and a DCA chasing the full amount?

 

The Amex Subject Access Request response is gonads

Anybody offer a little more legal insight?

[Elgrand]

Hi DD & Smouk,

 

Good to hear from you and thanks for the support.

 

The pre action information sheet is a bit confusing! Do I need to respond to this and if so, what would be the best way to go about it?

 

Elg.

[smouk]

The letter reads pretty much like a standard DCA letter - full of 'mays' and 'thens' and the Pre-Action Information Sheet reads like Amex wrote it. I don't think there's any specific onus upon you to respond at this point.

 

That said, if it were me, I would write to Brachers with "Account in Dispute" etc and refer them to their client. A letter to Amex reminding them of their failings is a formality.

[freethemice]

Just incase Amex fancy chancing court action after the recent Carey case (this shouldn't change the need for original documents to be shown but you may always get the duff judge) I would now focus the other sides attention more on the default notice. If you have this photocopy and send them a copy with a letter on the lines of.

 

Dear sir/madam.

It has come to my attention, through research, that it is probable that your client does not in fact possess a hard copy of the default notice served upon me and instead seeks to rely upon a computer entry as to the date that a default notice would have been produced.

 

It is therefore possible that your client is unaware of the defective nature of the Default Notice served upon me

 

In order to assist your client I therefore enclose a copy of the aforementioned default notice and ask you to study it carefully as it is clearly defective in several aspects, non of which can be regarded as de minimus. The primary defect is clearly that by stating they wanted payment 14 days from the date of the letter your client neglected to allow for time for this letter to reach me and effectively gave me xx days to remedy. Had I been given the full 14 days I could have found the sums requested wether or not these were demanded of a properly regulated agreement.

 

Having not been lawfully entitled, by way of this default notice to claim the benefits of s87 of the act, your client does not have a cause of action to claim sums not yet due nor to terminate the agreement lawfully. In fact your Client subsequently unlawfully repudiated the agreement, an action which i have accepted and the agreement no longer endures. .

 

I invite your client to study this document consider their position. I note with reference to BOS V Robert Mitchell June 2009 in which BOS were heavily criticised by the judge for their behaviour in almost identical circumstances and invite your client to alter this alleged balance to zero, clear the invalid default from my file and stop processing my data.

 

yours

 

xxx

 

It is wise to get your legal arguments across clearly at an early stage as at court they may say "We weren't aware the default notice was an issue"

 

I would also recommend spending £10 on a full data protection request for all the information they hold on you on any medium. This should show you the cards in their hand.

[Elgrand]

Thank you for your comments and advice,

 

I will indeed push towards the invalid DN, but it's not that, that they cannot locate. It's the Cancellation, termination notice.

They never sent me one although they have admitted that it was cancelled on said date and it shows in their comms.

I have invested in the SAR twice and not sure what other info that would provide at this stage.

 

Elg.

[freethemice]

I wouldn't get too hung up about the termination notice. As far as you are concerned the default notice is infact a termination notice. All that is important is that you have acknowledged this termination and pointed out why you feel this was unlawfully repudiated the agreement.

You can hold your head high with this position and say if Amex had of asked for the arrears due and allowed 14 days it is highly likely I could have remedied this alleged breach.

There is also a follow on argument that they processed your data incorrectly and against the data protection act by registering this default.

Just read every letter you send as though it was infront of a judge and build your case with these letters.

[Elgrand]

freethemice

 

Thank you for your welcome support and advice. I think that pretty much sums up the path i intend to follow.

 

Elg

[Desperate Daniella]

Elg,

 

Did you get my pm and link to Shakespeare62 - v - a NastyBank ? This could help us all.

 

DDx

[Elgrand]

Hi DD

 

Yes I got it, thank you so much.

 

I will have a read and pm you back

 

Elg x

[Kick back]

Hi Elgrand

 

just wondering how you got on im in a very similar position infact

they could have just copied!! Did you take the advice and write re

invalid default notice ?

 

thanks

Kick Back

Edited March 13, 2010 by Kick back
spelling

[Elgrand]

No further updates on this at the moment.

 

Elg.

[Desperate Daniella]

Hi Kick back,

 

Welcome to CAG!

 

Have you started a thread? If you post up your 'agreement', or give more details about what it was - type of application, date you applied, and so on, I'm sure we'll all try and help you too.

 

DD

[Elgrand]

just wondering how you got on im in a very similar position infact

they could have just copied!! Did you take the advice and write re

invalid default notice ?

 

thanks

Kick Back

Hi Kick Back,

 

Thank you for your PM, but please ask questions through the thread as you have above, therefore everyone can see the questions and any comments I make in reply can be seen as well.

 

I have not made or had any more contact from Brachers and that is a surprise as I was expecting them to pursue. Not that -that worried me at all and they may still do so.

 

Amex, however have just sent another settlement letter with a 10% discount improvement on their last offer.

 

Will respond to that in due course.

 

Elg.

[Kick back]

Hi Daneilla

 

No havn't started a thread as my situation is exactly the same as this

same letter from Branchers too!! Amex only have application form no

t&cs on file!! invalid default and then account closed!! Been through

several DCA's now passed to Branchers same letter as above was thinking

of sending response passed on freethemice letter several posts back!

What do you think?

[Elgrand]

Just a quick update.

 

Amex have sent another letter now with a 50% discount offer.

 

Elg.

[Desperate Daniella]

That's interesting.