CCA Response

[SCC]

I have received the attached response from Amex to my CCA request. My request was send on 1 April 2009 and only received the attached today 25.04.09. Have already sent 2nd letter advising that they are in breach as they did not supply documentation in prescribed time.

 

Can anyone advise if this is a binding CCA.:-|

Amex.pdf

[davey77]

The first single page application form is the important doc and i don't see any prescribed terms there so unenforceable.

 

It's 2003 i think i can see.

 

The rest of the pages are just T&S and an updated unsigned agreement that they vary - unrelated to your original application form for the purposes of enforceability.

 

Have a look at my thread:

http://www.consumeractiongroup.co.uk/forum/amex/184309-davey-amex.html

 

Hopefully a mod will move your thread to the Amex forum as it's currently in the DCA Successes and therefore might not get noticed so much.

 

Davey

[SCC]

Many thanks for reviewing the doc's.

I have taken a look at your link. Question - did you receive a response to your letter that you sent after you received the CCA docs?

Thanks

[davey77]

My reply to them (post 16) after they sent the application form is on post 24:

 

They failed to reply correctly to the points raised (as they do!). It was a standard template letter that others have had and which ignored the issues at hand.

[SCC]

I have now read your thread with Amex. Can you advise if I should send your template letter - attached - in response?

 

Thanks

Dear Madam.doc

[davey77]

Yours needs to be amended to your own requirements as you don't have exactly the same issues as myself:

 

"Account in Dispute

 

Dear Madam,

 

Thank you for your reply to my statutory request for information albeit received on the (ENTER DATE ***) and over the 12 + 2 days required.

 

I note that in reply to that request you sent the following:

 

* 1. A signed Application form

 

* 2. Updated copy agreements (unsigned)

 

* 3. Terms and Conditions

 

With these documents in mind perhaps you could clarify matters. Documents 2 & 3 obviously do not contain any signatures.

 

Document number 1 appears to be a pre-contractual Application form. This form is dated (ENTER DATE ***) and does not create a Legally compliant or enforceable document as there are no Prescribed Terms in evidence on the Application form itself.

 

For your information:

 

s61 (1)a CCA - Signing of agreement;

(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

 

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

 

Also:

s127(3) CCA:

(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 (whether or 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).

 

I am aware that under Section 78 of the Consumer Credit Act 1974 (**CCA1974**) you are permitted to omit signatures and other details from copy documents in reply to a request under the same act.

But i am sure you will agree as a law abiding organisation that what you have supplied to date, does not conform to the regulations and therefore as a Pre-April 2007 agreement, is Irredeemably Unenforceable as you have failed to supply a document signed myself that contains the prescribed terms as per section 61(a) and section 127(3) of the CCA 1974.

 

In this instance i would like to take the opportunity to refer you to the following in the case of Wilson v Hurstanger (2007) EWCA Civ 299:

 

"...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 section 61 that all the terms should be in a single document, and backed up by the provisions of section 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."

In relation to the above, the document you have supplied, fails in respect of Schedule 6 of the Consumer Credit (agreement) Regulations 1983. The signed document does not include (embodied within that document) terms stating the rate of interest on the credit to be provided under the agreement. There are also no terms stating how a debtor is to discharge their obligation under the amount of repayments, the frequency and the timing of repayments, the dates of repayments neither does the document headed “Credit Card Application” give information as to the power available to the creditor to vary what is payable.

 

I hope this new information has been of some assistance and I am sure you will be able to agree the issues i have raised are pertinent in this case.

 

Please also note that i am aware that the permission to process data with the Credit Reference Agencies is included within a properly executed agreement and as you have not supplied that agreement you are precluded from processing said data.

 

Therefore, in line with the principles of the Pre Action Protocols, please supply me by return a copy of a signed original credit card agreement containing the Prescribed Terms. If that is not possible, then please state how you intend to resolve this situation amicably. If you feel you can not reach an accommodation to suit both parties in these circumstances then please reply giving your reasons and i will pass the matter to my Solicitor who is currently dealing with other cases of a similar nature.

 

Please do not reply that you:

 

A: Have complied with Section 78 of the CC1974 (I am aware you may have done so and this is quite clearly not what these issues are in relation to.)

 

B. That payments made toward the above account are all that is required to enforce this account in a Court of Law.

 

C. That the Application form IS the agreement, as i have clearly shown through quotes from the relevant regulations and case Law that this is not so.

 

D. That the Prescribed Terms can be found on another document other than a signature document. (As I have already shown, this is not permitted to be the case.)

 

I suggest you reply to all points raised and not to ignore or disregard any detail I require an explanation to.

 

In your reply please include a breakdown of all interest and charges incurred and payments made towards the above card for the lifetime of the account since inception date.

 

I look forward to your response.

 

Yours faithfully"

[citizenB]

Thread moved to Amex forum as requested.