AMEX / NEWMANS......Statutory demand, help please.

[banker_rhymes_with]

Hello Liz!

 

Need to investigate the last two letters, as Amex Terminated your Regulated Agreement on 14/11/2008, and yet have added a default charge/sum on 28/11/2008.

 

Not sure they can do that...unless the default was incurred prior to Termination.

 

Either way, Amex are admitting this is a default situation, and they have Terminated your Account on the basis of you being in default, hence the Default Notice prior to Termination, and the Termination Letter confirming Termination saying they will say nasty default things about you with the Credit Reference Agencies (CRAs).

 

If it walks like a default situation and quacks like a default situation, then it's a default situation and they need to follow s87/s88 if they are to enjoy the benefits of s87.

 

So, it's a default situation, they've admitted that, and they've confirmed that by sending you a s87(1) Default Notice and Terminating on the back of that along with a statement that they will register this with the CRAs.

 

Shame for Amex the Default Notice is defective, is it not. They've just made the amount you owe under £750 so, below the Threshold for Bankruptcy. Argued well, that could set aside the SD alone.

 

Next step is to see if the £422 of Arrears are accurate, i.e. any unlawful charges or PPI in there? Is the amount accurate based on Statements.

 

It will also be interesting to see if they have an Agreement too. But the defective Default Notice is the Ace that is now on the table...and that trumps the Agreement.

 

When they issued that, they threw s87 out of the window for themselves.

 

Cheers,

BRW

Edited April 25, 2009 by banker_rhymes_with
Typo

[foolishgirl]

This looks luvely Liz!!

 

Let us know when you get the hearing date (& also the CCA) for help in compiling a statement/points to put before the judge.

[Liz Southern]

Hi

 

Under pressure, I paid Newmans £500 after the date of the notice of cancellation (Jan 09), so perhaps they owe me money.

 

Thanx for all your help so far, peeps.

 

This morning I have had an interesting letter from solicitors purporting to act for Alliance & Leicester, saying that A&L have cancelled my agreement with them. I'll post the letter on a new thread and would appreciate hearing from someone who has come across this situation before. I'll expand on the subject in the new thread.

Regards

Liz

[Liz Southern]

Okay peeps

 

I've looked all over the site for the "New Thread" button. Have the fairies got it, or should I ask to start a new thread?

[Alphageek]

Liz, go here Alliance & Leicester - The Consumer Forums to start your A&L thread.

 

The [New Thread] button is on the left-hand side about about a screen down from the top.

 

[Liz Southern]

Many thanks, Alphageek. Have posted.

 

Thank you again.

Regards

Liz.

[42man]

Just agreeing with BRW....the default notice is pants....however, you will need to be savvy in front of a judge as they are the ones who make the decisions, he may ask about the morals of paying the debt !! of course it is a law court and not a moral court !!

[Liz Southern]

Hi Everyone,

 

American Express ran out of time today for providing me with a true copy of the CCA.

 

My County Court date arrived today. The Set Aside hearing is listed for the end of June 09.

 

And I received a letter from the Compliance Officer of Moorcrofts, saying he was investigating my complaint. They actually sent me a copy of the Financial Ombudsman Service booklet!

 

I will write to Amex tomorrow, possibly. But I am not minded to let them have another 14 days. They still have time to reply to the SAR.

 

I know I am mixing my subjects, but I have had letters now from both the Chairman & CEO of Amex and Richard Branson's office, (MBNA) saying they will investigate my complaints.

 

Regards

Liz

[Liz Southern]

Oh hello 42Man,

Didn't see you there.

 

Actually, bantering morality with a judge wouldn't worry me. I used to do it for a living. I'd got out of the habit but it's coming back to me now.

 

Fighting back is strangely addictive.

Regards

Liz

[WelshMam2009]

Just wishing you good luck Liz!!

[Liz Southern]

Hi WelshMam2009

 

Thank you. I will keep you all updated.

 

Regards

Liz (nearly wrote my real name then. Oops )

[foolishgirl]

Seems you have quite a while before the hearing date & hopefully your SAR will throw up a bit more info before then. You sound as though you are confident in your ability to 'perform' in court but if you need more help nearer the time with statements/questions etc. just shout.

[Liz Southern]

Hello Foolishgirl

 

Yes, my local court is dealing with 40+ bankruptcies a day, so they are busy.

 

And yes, please, I'd love help with this nearer to June. I'd be very grateful.

Catch up with you all later.

Regards

Liz:)

Edited April 30, 2009 by Liz Southern
Typo.

[unhappy_chap]

Hi Liz Southern,

I was on the same shoes as you with Newman & co. There were very aggressive and arrogant.

They even told me to sell my property, take up another loan etc. Newman & co realise that my lack of knowledge and vulnerability and they took the full advantage.

Finally I made a complaint to OFT and Financial Ombadsmun service regarding their practice, since that they have passed on the debt back to American Express. Please complain to OFT and Financial Ombadsmun service, we should take steps to stops this cow boys.

[Liz Southern]

Hi Everyone

 

Yes, prob will be making complaints higher up the chain. Thankx for the support, unhappy chap.

 

Quick question. My SD was so detailed, do I need an actual Defence document? Or is it to update the fact that Amex haven't provided me with any documents at all?

 

Regrds

Liz

[foolishgirl]

Basically Liz, you will have to put all the reasons for wanting your set aside to the judge at the hearing. Unfortunately the other side will try & find reasons why you shouldn't get it!

 

Your reasons will of course, include the non-provision of docs. from Amex (how can you have an agreement to default or terminate with no proof that the agreement ever existed?!) & even if an agreement existed, the fact that they issued a defective default notice they are only now entitled to the arrears at the date of the default notice - not the full balance. As BRW says, this would bring them below the threshold for commencing BK proceedings (£750) & they would therefore have no legal entitlement to apply for a SD anyway.

 

But most importantly is that, having issued a DN & terminated the account, they then went straight on to BK proceedings instead of using the correct approach for making a claim on a regulated credit agreement, county court action. i.e. they are attempting to use the BK route to circumvent the proper legal recourse, an abuse of the court system.

 

You will have to argue these points to the DJ so you should make sure you are fully conversant with the legislation. You also need to get together some case law re. DN notices etc. as further proof.

[Liz Southern]

Hello Everybody

 

My application to set aside is on 29th June. The CEO of Amex, Fort Lauderdale, had someone in his office write to me but the man was totally out of the loop as far as what is happening is concerned. He told me that Brighton office had told him that they had issued a SD against me. That was the sum of his knowledge!

 

I put all the reasons for dismissal of the SD in my application to set aside. I am wary about printing it here but I don't know what else I need in my defence, other than Amex owe me money! And I would like your opinions. A different credit card company sent me what they call my agreement. It's a blank application form. They are saying that it's my original form because of the Electronic Signature amendment to the Consumer Credit Act. However, the "agreement" they sent me doesn't even have a box for me to put a cross in.

 

Am I right in thinking that if a credit card company fails to provide the original signed credit agreement and the SAR within the timescale, then the agreement is unenforceable?

 

Recently a postman jumped out of his parcel van, ran to my front door, put two "sorry you were out, these needed a signature" slips through it, both signed by different postpersons, and using two completely different times, and ran back to his van without ringing the doorbell and not allowing time for anyone to reach the front door!! I was told this by a neighbour as I wasn't even at home. I didn't go to pick up whatever the two letters were. The date the postman did this was the last day before CCA and SAR request deadlines for two different credit card companies, so if the companies were playing with me, thinking they'd leave it until the last day to give me the documents, they were unwittingly foiled by our lovely postmen breaking the rules and doing postal rounds for each other. God bless the Post Office.

 

Regards

Liz

[WelshMam2009]

Hello Everybody

 

Am I right in thinking that if a credit card company fails to provide the original signed credit agreement and the SAR within the timescale, then the agreement is unenforceable?

 

 

Sorry Liz, that's not correct

 

The account remains in dispute until the Creditor satisfies the default by supplying a copy of the CCA. If they are unable to do so, then they can enforce pursuant to s127(3) of CCA 1974 providing they have your signature and prescribed terms contained within one document.

 

(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 (whetheror 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).

 

The above section was revoked by CCA 2006 which means that it is not automatically unenforceable for agreements post April 2007, but is at the court's discretion.

 

Not too sure about the SAR but I believe that may warrant a complaint to the ICO who will decide what action to take, if deemed appropriate (I believe).

Best wishes as always

[WelshMam2009]

There are also exceptions if you applied on line regarding your signature...but I can't remember when this came into effect.

[r&b]

hi liz

just subbing really. was gonna comment but welshmam won fastest finger contest.

[WelshMam2009]

hi liz

just subbing really. was gonna comment but welshmam won fastest finger contest.

 

lol;)

[Liz Southern]

Hi everyone,

 

Latest development is that Amex sent me a blank application form which they state is a "true copy of your signed original CCA". They also told me that the CCA Electronic Communications Order 2004 meant that I had signed this! Amazing. Absolutely blank application form! My Set Aside hearing is on Monday. I prepared a court bundle and showed it to a solicitor, who said he couldn't add to it as it was very, very good already, and I didn't need to add anything to it.

 

Regards

Liz

[Liz Southern]

Sorry Liz, that's not correct

 

The account remains in dispute until the Creditor satisfies the default by supplying a copy of the CCA. If they are unable to do so, then they can enforce pursuant to s127(3) of CCA 1974 providing they have your signature and prescribed terms contained within one document.

 

Hi Welshmam,

 

They don't have my signature and prescribed terms contained within one document.

 

Oh and Newmans have crawled back into their sewer, since I complained and told them I would complain to the FOS to have their licence revoked.

 

Regards

Liz:)

[foolishgirl]

Hi everyone,

 

Latest development is that Amex sent me a blank application form which they state is a "true copy of your signed original CCA". They also told me that the CCA Electronic Communications Order 2004 meant that I had signed this!

 

 

Maybe if you email them a copy of a blank unsigned cheque, tell them it is for the full amount of your debt & is sent under the Electronic Communications Order they will mark your account as fully satisfied. What muppets, I feel sorry for their sol. on Monday!

[Liz Southern]

Maybe if you email them a copy of a blank unsigned cheque, tell them it is for the full amount of your debt & is sent under the Electronic Communications Order they will mark your account as fully satisfied. What muppets, I feel sorry for their sol. on Monday!

 

Dear Foolishgirl

 

Absolutely Excellent! I might borrow this as a reply in court should it come up.

 

Anyone know if a Set Aside hearing is in chambers or open court?

Regards

Liz