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

[foolishgirl]

You have 18 days from the date of delivery (25 March) to apply for a set aside - ignore what they put on the front page, it's delivery they have to prove.

 

You have to complete forms 6.4 & 6.5. Have you got those?

 

Suggest you read this thread - it gives you lots of help/egs with completing the forms.

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

 

You need to dispute the debt eg. non production of the agreement (which you will know in 12+2 working days), no statements, possibly that the debt is all charges, no LBA, no default notice, no NOA - did you get any of these?

[foolishgirl]

First, liz, you need to get those requests for CCA & SAR in the mail - Rec. Del, do not sign, print or use dig. signature (see next post) then fill in & submit the Forms 6.4 & 6.5. When you sign the forms here make sure the line goes through your signature so it can't be copied & pasted by sols. on to other docs.

 

Just some ideas for those as you have to submit to court today but PLEASE check it all applies to your case & amend where necessary:

 

Form 6.4:

 

1. I do not admit the debt because the creditor has not provided any evidence of his claim as required by the Consumer Credit Act and is prevented from enforcing any claim until he does by the provisions of that Act.

And further that the creditor is bringing a claim under the Insolvency Act 1986 in order to circumvent the lawful prohibitions placed upon him by the Consumer Credit Act 1974

 

Form 6.5

 

(with thanks to recent post by 42man

If this the solicitors acting on behalf of Amex, then the debt will not have been assigned.....if they are acting on behalf of a debt collection egency then it will have been assigned, if it is the former, then you'll have to delete the pieces on assignment in the affadavit....)

 

The debt is totally disputed

The alleged creditor has not provided any legible copy of a copy of the agreement referred to in the demand.

 

Under section 78 (1) of the Consumer Credit Act A formal written request for any true copies of signed consumer credit agreements was sent to XXXXXX. via guaranteed/recorded delivery on the (insert the date on the recorded delivery slip here) (see attached document 1 – you need to copy the letter and the recorded delivery slip – to date they have not sent any copies of any Consumer Credit Agreements and they are in default of that request under section 78 (1) of the Consumer Credit Act

 

I believe there are no properly executed signed Consumer Credit Agreements, If they had been able to supply these agreements then they would have done already to avoid slipping in default under section 78 (1) of the Consumer Credit Act

 

SECTION 78 (1) CONSUMER CREDIT ACT 1974

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and..

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

The Consumer Credit Act in section 78(6) States that

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement

 

 

It must also be noted that the agreement must contain the prescribed terms.

 

Consumer Credit Act

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

(N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……

 

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont)

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

a)

sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

(b)

section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

©

section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

in relation to agreements made before 6 April 2007)

 

The alleged creditor has provided no default notice in accordance with the Consumer Credit Act 1974 this stated the default notice in order for it to be valid must be in the prescribed manner and be correct.

 

 

The Need for a Default notice

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.
  

 

• It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant
  

 

• Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)
  

 

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

 

• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119
  

REFERENCE TO CASE LAW

 

As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:

‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

 

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

 

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

 

The defendant has not been provided with any statements for the duration of the alleged agreement (it not being uncommon that some debts are made up entirely of charges)

The Defendant denies that he is liable to the Claimant as alleged in the demand at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

 

The defendant requires sight of the notice of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

2 -Perfection of the assignment.

 

2.1. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

2.2 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

2.3 Since the claimant explicitly states the notice was “sent/served (EDIT this)” it is assumed that this was done via the postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

Regulations respecting notices.

 

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

3.2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

 

3.3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

 

3.4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

 

3.5 - Consequently, I do not believe that any notice of assignment was properly served upon me at the date of the demand, and therefore any assignment has not been perfected in law.

 

I gracefully request -

The Judge dismisses the demand on the above evidence.

The Judge order the claimant to delete all adverse information held on my credit files.

The Judge orders the claimant to pay my full costs in light of the distress and damage to my family and to make an indemnity award

 

In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:-

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

 

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

27 So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

 

I believe the facts herewith in this form are true.

[foolishgirl]

The CCA request will cost you £1.00. make sure you ask for it under S77/78 of the CCA1974.

The SAR will cost you £10.00.

 

Send POs, sign but put line or crosses through signature. Send Rec. Del.

 

 

Data Protection Act 1998

 

Subject Access Request

 

Dear Sir/Madam

 

ACCOUNT NUMBER: xxxxxxxxx

 

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

1. The original signed, executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

3. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.

4. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

6. Details of any collection charges added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

7. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

8. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

9. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

10. Copies of statements for the entire duration of the credit agreement.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

[foolishgirl]

They'll almost certainly allow you to submit it liz - just speak to them nicely

[foolishgirl]

 

A default notice I had quoted S 86(1) of the Consumer Credit Act 1974. It was one credit card, with different purchases of goods and cash.

 

 

Just noticed this post liz. Are you sure it was S86(1)? This deals with the death of a debtor.

 

Maybe it was S87 or 88?

[foolishgirl]

Most important thing is, did he keep the counterfoil so you can trace when they are cashed if necessary?

[foolishgirl]

Think Liz is referring to signatures on the POs not the letter, marondevo.

[foolishgirl]

Hi

 

I think he put the whole thing in, but he came back with two receipts from the Post Office and a receipt for the recorded delivery letter to Amex. The receipts for both postal orders are very clear and have the date, time of purchase, plus the amount, who it was made out to, and the specific number of the postal order, so on reflection I think I'm covered.

 

 

I think you are too.

[foolishgirl]

Hi

 

I found out today that the Judge wants my Set Aside hearing listed.

 

 

This sounds promising - let's hope you receive (or don't!) at least your CCA before the date of hearing, but don't worry if you don't, you can ask the court to get Amex to comply.

 

 

Hi Alphageek

 

I will post the docs. I have just realised. I paid Amex £500 (to Newmans) in early 2009 so they might owe me money.

 

 

They may well do! Post your docs as soon as you can, including the CCA when you get them so CAGers can help with your set aside hearing statement.

[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.

[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.

[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.

[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!

[foolishgirl]

.

 

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

 

 

AFAIK it is set out like a small court claim - private room, judge, claimant, defendant.

 

BTW Liz, I notice you were asking about securitization by Amex on another thread. This should be a line to pursue (particularly with Amex) as (if your debt was securitized) it looks as though they may well have had to pass the title of any debt over at the time of securitization in line with US requirements as they are a US company i.e. they are not now entitled to issue a claim in the name of Amex in this country as they don't own the debt, the company with whom securitization took place do.

[foolishgirl]

 

You must call the Police, because that sort of behaviour is just not acceptable. Please do not hesitate to do so.

 

Indeed, if you have a Camera of some sort, take pictures of him doing this, plus one or two from the safety of a window, and show that to the Police when they call. Try to make a good description of the idiot, and see if you can see his Car and Registration.

 

No risks, just gather what evidence you can, and call the Police to come and sort that out for you.

 

 

Just a word of caution on calling the police Liz. Be very sure you know the law & your rights under it absolutely. It is not unknown for the police to side with the baliffs or debt collector as the individual bobby sent to sort out the problem is not always fully conversant with all aspects of the law relating to trespass & debt collecting & you may find that you have 2 people to fend off instead of just one ignorant doorstepper!

 

BRW's advice to take the photos, record the calls & then make complaint through the official channels is very sensible. You could then always bring a case for harassment in the county court & make them pay you.

[foolishgirl]

Excellent news Liz - well done!

 

I can appreciate from reading your thread how much work you have put into the research on this & it is SO satisfying when it comes good isn't it.

 

You also have the plus that if they now attempt to go through the 'proper' channel of collection i.e. cc claim you have all the evidence to see them off.