AMEX Electronic Agreements CCA 2004

[1mansquest]

Hi all,

 

I have an AMEX credit card taken out in 2006 online. I requested a copy of my CCA and they sent me an electronic printout, stating the CCA 1974 (Electronic Communications) Order 2004 allowed them to capture an electronic signature as validation of the contract. They sent me a printed copy of the online application with a large number of database fields and their contents, plus pinted copies of terms dated 19/08/08 in the footer, along with "122-R62 Unexecuted Version".

 

Is there any basis upon which I could challenge this CCA?

[the_shadow]

Hi all,

 

I have an AMEX credit card taken out in 2006 online. I requested a copy of my CCA and they sent me an electronic printout, stating the CCA 1974 (Electronic Communications) Order 2004 allowed them to capture an electronic signature as validation of the contract. They sent me a printed copy of the online application with a large number of database fields and their contents, plus pinted copies of terms dated 19/08/08 in the footer, along with "122-R62 Unexecuted Version".

 

Is there any basis upon which I could challenge this CCA?

 

The important bit I believe is the signature box which can be a little tick on the screen.. its early days as far as I'm aware in battles over these types of applications.

 

You might want to post up what they've sent you minus personal info and then you'll get comments on enforceability.

[1mansquest]

pmw1971, thanks for the reply. I've uploaded 7 of the 14 pages they sent me. My contention the CCA is unenforceable would be on the following grounds:

 

1. The terms sent clearly indicate "Unexecuted Version"

2. The terms version date is 19/08/08, I've had the card since 2006

3. A number of the terms represent the latest terms, not those originally agreed (i.e. never had an annual fee until recently, over limit fee is £12.00, but was previously higher.

4. The copy of agreement is nothing more than printed A4, with nothing to suggest it actually represents 'MY' agreement.

5. The print-out of database fields is indecipherable as a 'signed, executed agreement' for layman.

 

If anyone has any thoughts on my reasoning, please reply.

 

Scan Link:Pictures by 1mansquest - Photobucket

 

 

[Guest dvdriley]

WOW!!! I am so happy, so far I have not come accross anyone here who has received that type of agreement apart from myself.

 

This is clearly just a computer print out of your personnal details. It does not mention anything CCA Act, there is not even a signature tick box on it. What agreement would details your passowrds and mothers maiden name.

 

Now for the terms and conditions sent seperatley. No reference connecting the 2, terms and conditions are not those prevailing at the time.

 

I will let you know where I am up to on this matter so you know what to expect.

 

send them this letter by recorded delivery AND DO NOT SIGN IT.

I DO NOT ACKNOWLEDGE ANY DEBT WITH YOUR COMPANY

It would seem that you are of the belief that you have discharged your obligations under the Consumer Credit Act 1974 in particular section 78(1).

 

You have provided me a copy of an application form and I feel it is my duty to draw your attention to some serious flaws in your comments.

 

Firstly, to comply with section 61 of the consumer credit act 1974 which by the way refers to the signing of an agreement (Not an application), a document must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed

 

Now then, these regulations I refer to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). These regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the SI1983/1553 without the prescribed terms the agreement does not conform to section 60(1) 1974 and therefore cannot be properly executed as described in section 61(1) CCA 1974.

 

For your information in case you are unsure. 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--

(a)Number of repayments;

(b)Amount of repayments;

©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.

 

Now nowhere on the application form that you supplied is there any reference to these terms. I wish to remind you that the absence of these terms will render a document unenforceable in court and I also wish to point out that these terms MUST be contained within the agreement and NOT in a separate document headed terms and conditions or words to that effect

 

Since the document you have supplied is a clear mailer application form, I cannot believe for one moment that these very important terms would be contained on the opposite side of the form, unless they are there for the postman to read while he delivers the mail. Therefore they must have been contained in a separate document, which is prohibited by the SI1983/1553, as there is no clear link to them within the signature document.

 

Therefore, you have failed to supply an enforceable document, which is correctly executed as to be so; it must conform to the Regs under s60 CCA1974

 

I am of the opinion that a court is precluded from enforcing this agreement by s127 (3) CCA1974 as it is improperly executed under s61 CCA 74, the consequences of improper execution are set out in section 65 CCA 1974 and s65 sets out that only a court can enforce an improperly executed agreement subject to certain qualifications, one of those is that the document is signed

and contains all the prescribed terms. Now since this document does not contain all the prescribed terms s127 (3) CCA 1974 strictly prevents the court from enforcing this agreement.

 

If you cannot supply me with a document, which complies with the Consumer Credit Act 1974, and ALL of the Regulations made under the Act, I shall be forced to make a complaint to Trading Standards and I will also draw this to the attention of the Office of Fair Trading

 

I respectfully request you review this matter in light of my comments above and I request that you supply me the required information or alternatively confirm the account is closed and the debt written off with a zero balance.

 

I respectfully request a reply within 14 days of the date of this letter.

 

Yours faithfully,

 

 

They will ignoore it and sent you a default notice, which will no doubt be invalid, followed by a termination letter. They will then instruct a DAC to chase you.

 

 

I have , so far, seen off 3 DCA,S as they have all given up.

 

 

No CCA= they cannot enforce the debt.

 

 

Invalid DN = they cannot enforce the debt

 

 

Hope this helps

[1mansquest]

dvdriley, thanks for the advice, much appreciated. So you had to handle three seperate DCA's all related to this one AMEX account? Can you give me an example of how you worded your letter to the DCA's?

[zhanzhibar]

Hiya

 

Just to let you know I have similar application/agreement from Amex & they have put Notice of hearing for application for Summary Judgement which means I am meeting them in court this 25th March.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/137617-zhanzhibar-amex-aic-newman-8.html

[millymollymoo]

subbing as the same.

[millymollymoo]

My opinion after reading the electronics order regulation bit:

 

(b) After subsection 4 insert -

 

 

 

• " (5) Where an agreement is intended to be concluded by the use of an electronic communication nothing in this Regulation shall prohibit the inclusion in the signature box of information about the process or means of providing, communicating or verifying the signature to be made by the debtor or hirer.".
  

 

Is that the proof is in the pudding as my old nan used to say (bless her). They need to show proof that you agreed to this and the application form rubbish they have sent does not do this. They need to show the data capture of the tick or cross showing you agreed to this being concluded this way.

 

I would even go as far to say that they should provide proof that the alleged agreemnt was sent via email to the designated email address. as they are talking p*o ants. I never received anything from them via email ever, just the card through the post and on the back a blank credit agreement form unsigned.

• Milly X