IM vs AMEX - Help with defence

[steven4064]

It is usual in these cases that all correspondence is with the solicitors rather than the company themselves

[the_shadow]

Hi guys,

 

The claimant details on the Claim Form is the American Express Services Euro PE Ltd, London Address, but the address for sending documents and payments is to Brachers London Address.

 

Yes its amex themselves then.... Looks like the judge was just being thorough with the disclosure order then.

 

S.

[banker_rhymes_with]

Hello Folks!

 

As I understand it the debt has never been sold? Its amex taking you to court?

That is a very interesting question indeed.

 

It may be an idea to ask Amex if they own the Debt, and ask them to confirm that in writing, and also please confirm where, exactly, in their Balance Sheet this Debt is shown.

 

Cheers,

BRW

[steven4064]

In post #1 you said "The Court served an order for Brachers to supply the relevant documents".

 

Before this, did you fill in an Allocation Questionnaire? or was there a hearing?

 

I think the next thing to do is to go for a strike out of their case on the basis that they have not demonstrated reasonable grounds for bringing the case (CPR Part 3.4 (2)(a)) because of the defective default notice. If you haven't yet filled in an AQ, we can do it then. Otherwsie you would have to make an appliaction which would cost £40.

[steven4064]

Actually, lets be cheeky. When you send in the revised defence, send a covering letter and in it say

The Claimant respectfully requests that an order may be made as follows:

 

1. That the Claimant's statement of case is struck out pursuant to rule 3.4(2)(a) of the Civil Procedure Rules

as the Claimant's statement of case discloses no reasonable grounds for bringing the claim.

 

The claim is for the early repayment (ie before the full term of the allleged agreement between the Claimant and the Defendant) of a sum of money consequent on a breach of the alleged agreement by the Defendant. The Claimant is only entitled to file such a claim after first having served a defeult noitice under section 87(1) of the Consumer Credit Act 1974 and in accordance with s88 of the Act.

 

Inter alia, the regulations made by the Sectratary of State related to s88 concerning default notices require that a period of 14 clear days be given to the Defendant to remedy the default before enforcement action (including filing a claim) may be started.

The default notice supplied by the Claimant in response to the order of the Court dated date is dated Friday 3 August 2008 and says "To remedy this breach, payment due on your account of £xxx must be received within fourteen calendar days from the date of this default notice", ie by Wendesday 17 August. Under CPR Part 6.2, a letter is deemed served on the second day after it was posted, provided that day is a business day. That means that a default notice posted on Friday 3 August would be deemed served on Tuesday 7 August and 14 clear days from then is Tuesday 21 August. Therefore the default notice does not comply with the regulations in respect of giving the Defendant the statutory length of time to remedy the default.

The failure of the default notice to comply with the regulations made by the Secretary of State invalidates the default notice (Woodchester Lease management Services Ltd v Swain and Co - [2001] GCCR 2255), is an unlawful rescission of contract and prevents the Court from enforcing any alleged debt (Kpohraror v Woolwich Building Society [1996] 4 All ER 119).

The invalidity of the default notice means that the Claimant has no right of action in this case. On this basis, I respectfully ask the Court to strike out the Claimant's statement of case.

Note also that I have changed the date when the letter ws deemed served - I think the date in the defence is incorrect an dneeds to be changed. (not that it makes any difference to the case)

 

Edited May 15, 2009 by steven4064

[the_shadow]

Actually, lets be cheeky. When you send in the revised defence, send a covering letter and in it say Note also that I have changed the date when the letter ws deemed served - I think the date in the defence is incorrect an dneeds to be changed. (not that it makes any difference to the case)

 

Eeek sorry my fault on that, you are correct its ON the 2nd working day after postage in both statutes.

 

S.

[steven4064]

OK shadow. What do you think of my suggestion to go for a strike out and the letter above?

[the_shadow]

OK shadow. What do you think of my suggestion to go for a strike out and the letter above?

 

I've no practical experience tbph but if you get a judge who is clued up on default notices and their importance then the facts cannot be denied.

 

I've only seen them on AQ's when reading around the site tho so asking prior to AQ is a new one on me.

 

S.

[steven4064]

It's a bit cheeky I admit, the worst that can happen is they say "do it properly"

[the_shadow]

It's a bit cheeky I admit, the worst that can happen is they say "do it properly"

 

Like I say if you get the right judge:)

 

Only thing nagging me from the defence and the strike-out is the default notice is invalid but nowhere is it asking for the adverse data to be removed, I take it its a two step process? First get the judge to agree the DN is invalid... ergo then the default on the credit file is invalid.. apply to get it removed?

 

S.

[steven4064]

You are right. It should certainly be brought up at the hearing (and I think a strike out would involve a hearing). I don't think ot can be added to the defence as such because it isn't part of the defence. It should really be a counter claim under s14 of the DPA 1998.

 

Perhaps the best way forward is to bearit in mind, bring it up in court and, if the court doesn't take it up, start a new claim afterwards.

 

I will check though.

[the_shadow]

You are right. It should certainly be brought up at the hearing (and I think a strike out would involve a hearing). I don't think ot can be added to the defence as such because it isn't part of the defence. It should really be a counter claim under s14 of the DPA 1998.

 

Perhaps the best way forward is to bearit in mind, bring it up in court and, if the court doesn't take it up, start a new claim afterwards.

 

I will check though.

 

Yep sounds good to me.

 

S.

Edited May 15, 2009 by the_shadow

[im4347]

Hi Guys

 

Thanks for all the advise, very interesting read regarding the strike out....

 

Just a quick query Steven, in the revised defence post #19, the points numbered start as 1,2,3,4,5, and then jump back to 3,4,5 etc. I take it it's just an error?

 

Thank you for post #30 regarding the cover letter, brilliant.

 

Thanks

 

IM

[steven4064]

Yes, it's an error but be careful because the case law (in italics) also has numbered paragraphs and they do belong to a different sequence.

 

To summarise - send the new defence with a covering letter with the case number saying it is in response to the court order and then stick on the stuff I wqrote about the strike out and lets see what happens.

[im4347]

Thanks for that Steven, I will get on to this and get this sorted, let's see how the strike out pans out.

 

I'm going in on Tuesday afternoon to hand in my defence.

 

Any queries, I'll get back to you guys.

 

Thanks again.

 

IM

[im4347]

Hi Steven,

 

Just realised that in Post #30, the cover letter regarding the strike out, you have written:

 

The Claimant respectfully requests that an order may be made as follows:

 

I am the defendant so I take it it's supposed to be defendant?

 

IM

[steven4064]

Well spotted.

 

You might want to see this as well (strike out hearing scheduled for next week) http://www.consumeractiongroup.co.uk/forum/legal-issues/163222-help-defence-cohens-court-post2170642.html#post2170642

[im4347]

Hi Steven

 

Thanks for the link, unbelievable!!!

 

Before this, did you fill in an Allocation Questionnaire? or was there a hearing?

Just answering your question regarding the Allocation Questionnare, yes we did do that a while back.

 

IM

Edited May 19, 2009 by MARTIN3030
test

[im4347]

Hi Guys

 

After filing the Revised Defence, I was shocked to receive a Court Order stating that we had failed to file a defence and was oredered to pay Brachers the money!!!!

 

I was so annoyed I drove down to the courts to find out in person as to what they mean they didn't recieve my defence when I had physically handed it in!!!!

 

I spoke with the lady that took the defence from me who informed me that sometimes paperwork can be left left behind before the judge gets to view it!!!! After some searching she checked the file and found my defence right on top!!!

 

She went onto appologising and stated that for some reason they didn't put it up on the computer sysytem and further that the Judge had either missed it or didn't receive it.

 

She stated that she will set it aside and that I will receive a certificate to confirm this and remove my name off the public register as this was their error. This was week ago and i still have not heard back. I called the courts to find out what was going on, and now I've been told that the file is back with the Judge and I should hear back from them soon.

 

I am absolutely furious as I always met the deadlines, always went in and physically handed in the necessary paperwork, and due to the courts mistake, my name is on a public register and has been now for almost 2 weeks, and I take it that this is a CCJ?

 

Any advised anyone?

 

Thanks,

 

IM

[anxious123]

Hi IM,

 

Just wondered how it went? Has your name been taken off the register now? I was just reading your defence and found it really helpful as I'm currently trying to write mine now, which has to be in tomorrow. I was wondering if your defence had been successful, but I guess its still unknown?

 

Anxious

[im4347]

Hi Anxious

 

I finally received a court order stating that they have set aside the judgment , which I understand as they have removed my name off the register. Instead I have a court date for a hearing.

 

Hope that helps.

 

IM

[anxious123]

That's good news! Hope it goes well. I've just drafted my own defence if you get chance to take a look. Do you think it looks sort of right? http://www.consumeractiongroup.co.uk/forum/legal-issues/193518-help-please-mint-ccj-8.html#post2329426

[freethemice]

Any update yet. This will probably be me in a few month when the dca's stop their letters and my Amex account goes to the solicitors.

[Hestia10]

Hi, love to hear if you have any news.

[im4347]

Hi all

We had a court order in October 09 to arrange a CMC hearing via telephone and ordering the Amex/Brachers to file and serve a reply to my last defence by October 2009 (Defence Post #19 Steven 4064).

They failed to file the reply to the defence and the CMC hearing went ahead. The judge was obviously not happy with the claimant and gave the following court order:

1. Claimant to file and serve reply on ** Dec 09.

2. Claimant to have permission if so advised to file and serve an amended Claim Particulars of Claim by ** Dec 09. (7 days after Point 1.)

3. Defendant to have permission if so advised to file and serve an amended Defence by ** Jan 2010.

4. Claimant have permission to file and serve an amended reply by ** Feb 2010.

5. Parties to serve and file witness statements or any evidence in support on ** March 2010, hearing notice to follow.

Claimant to pay hearing fee within 14 days of receiving this order.

Brachers then sent me a reply to my defence (Point 1) 3-4 days late and never filed any amended particulars of Claim.

I then receive a letter early Jan 2010 from a Solicitors firm called ‘Mishcon de Reya’ stating that Amex has changed solicitors and that they will be dealing with the case from now.

About 2 weeks later I received another letter from Mishcon de Reya stating that they do not intend to file and serve amended Particulars of Claim. (This should have been done back in Dec 09 anyway). The letter went onto to state the following:

They deny that the Default Notice did not provide adequate time for deemed service and that I remain in Breach with regards to certain clauses of my agreement. (The T&Cs that they are referring to are for May 02 and have no relevance to my application Form) The clauses they refer to are basically that they can terminate the agreement at any time by giving immediate notice, statements will show the payment requirements. They also refer to American Express Services Europe Limited v Harrison heard at Exeter Court in Feb 09 before Judge Griggs. They went on to state that the service of a Default Notice did not require the creditor to terminate the agreement in accordance to the Consumer Credit Act 1974. They also refer to a cases, American Express Services Europe Limited v Duffy (Oxford County Court – 3rd Dec 09) and Barclays Bank v Brillouet (19th Dec 1990).

The court hearing date came through and surprisingly, the very next day I received a copy of Mishcon de Reya witness statement along with my application Form, various T&Cs, statements and copies of Brachers letters, their bundle.

I need to file my Witness statement ASAP as I missed the deadline due to all this confusion of Brachers not following through and then Mishcon being involved.

I would really appreciate some help.

Many thanks,

IM