IM vs AMEX - Help with defence

[banker_rhymes_with]

Hello im4347!

 

If you can, read this Thread to get an idea of the games this bunch play:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/191784-shakespeare62-nastybank.html#post2072101

 

Cheers,

BRW

[davefirewalker]

look here...they tried the same trick...apparently they do this all the time...

 

Shakespeare62 - v - a NastyBank - The Consumer Forums

 

Dave

[Alphageek]

Hi im4347, did they serve a copy of either of the American Express Services Europe Limited cases they intend to rely upon?

[im4347]

Thanks guys for the links, will defo check it out.

 

Hi im4347, did they serve a copy of either of the American Express Services Europe Limited cases they intend to rely upon?

 

Nope, they didn't give me a copy of any of the cases they have referred to.

 

Thanks,

 

IM

[im4347]

Hi all

 

I've had a read through;

 

Shakespeare62 - v - a NastyBank - The Consumer Forums

 

It's very complex and I am quite confused now.... I have missed my deadline for my witness Statement and the court has advised me to file it asap. I really could do with some help with constructing a witness statement as I have never done one before and not too confident about copying and pasting one from this forum as it needs to reflect my defence.

 

Any help would be highly appreciated.

 

Regards,

 

IM

[gh2008]

What have you come up with so far?

[im4347]

Hi Guys,

 

Starting to panic a bit now, as I've missed my witness statement deadline and need to get it filed asap.

 

Steven4064 helped to construct my defence, if he has a moment, his help would be much appreciated.

 

Thanks,

 

IM

[banker_rhymes_with]

Hello im4347!

 

Starting to panic a bit now, as I've missed my witness statement deadline and need to get it filed asap.

 

Don't panic, let's just get it done properly, and submitted to the Court (with a copy to the enemy), in sufficient time to get there before Court.

 

I say that assuming Court is a little way off?

 

When was the Deadline, and when is the Hearing?

 

Cheers,

BRW

[im4347]

Hi BRW

 

Thanks for replying.

 

The Court Hearing date is early April and I missed my deadline a couple of days ago. I went into Court who have advised me to get my Witness Statement in as soon asd possible.

 

Thanks,

 

IM

[banker_rhymes_with]

Hello im4347!

 

The Court Hearing date is early April and I missed my deadline a couple of days ago. I went into Court who have advised me to get my Witness Statement in as soon asd possible.

 

That's great. Bags of time then!

 

The banks like to dump Witness Statements on people at the last minute, and Amex are one of the worst. Indeed, they seem to like handing things to people as they walk in to Court, so they are the very last Claimant who is in a position to complain if your Witness Statement is a few days late.

 

Tell them to bog off if they hassle you.

 

Right, the best plan is to outline everything they have dumped on you recently, because your Witness Statement needs to nail theirs point by point.

 

Being a few days late with a strong and well crafted Witness Statement, is far, far, far better than submitting a weak Witness Statement on time.

 

Let's work on this, and make sure you get it right.

 

Cheers,

BRW

[shakespeare62]

BRW is right. First off in my view, you will need to be specific when countering their arguments. Any chance you can post up a scanned copy of their reply to your defence (id removed of course) ?

 

Alternatively could you type it out and post it up ?

[im4347]

Thanks BRM, really appreciate your help.

 

I've attached the witness statement from Amex (Mishcon De Reya).

 

The letters they refer to in the statement are as follows:

 

Pages 1-4 = The signed application Form is page 1, the rest are T&Cs not associated with the application form. Biggest give away is that there is no date on the T&Cs, the agreement box is not signed, and the registered Amex addresses are different for the application form and the T&Cs!!

 

Pages 5-39 = Statements

 

Pages 40-41 = Default Notice

 

Pages 42-47 = T&Cs May 2002

 

Page 48-49 = Brachers letter acting upon Amex

 

Pages 51-53 = Please see Post #50

 

Hope this helps.

 

Many thanks again.

 

Regards,

 

IM

Amex Witness Statement.pdf

Edited March 10, 2010 by im4347

[shakespeare62]

IM, I'd be inclined to remove the chaps name on their witness statment and repost it.

 

I don't think much of their Witness Statement. I'm thinking of a reply (I might not get back to you till tomorrow sometime), In the meantime may I suggest you get your layout prepared i.e. you could copy my WS layout here , remove the words Appeal, as well as Appellant and Respondent, set the heading so it has American Express Service on top and your name underneath. Delete everything else. except the numbers and the statement of truth at the end.

 

Then we have a starting point.

[im4347]

Hi Shakespeare

 

Thanks for replying.

 

I've removed the chap's name.

 

Thank you so much for the WS, much appreciated. I will get onto your WS.

 

They messed up with the default dates and are basically using 'termination' clauses to back themselves when clearly there were no termination or cancellation rights on the application form.

 

Once again many thanks.

 

IM

[Desperate Daniella]

Hi IM,

 

I've just seen your thread. If S62 and BRW are here you have the experts on your side.

 

Good luck with this.

 

DD

[banker_rhymes_with]

Hello im4347!

 

That Witness Statement is the usual arrogant rubbish, dressed up to sound as if they are in charge of events and have a pile of case history to support this nonsense.

 

The arguments are deeply flawed, and the case history amounts to two County Court Judgments where they won the bent/biased/duffer Judge Lottery, and one case that is only relevant if they roll up one trouser leg, stuff a banana up where the sun don't shine, and keep their fingers crossed.

 

However, there is method to their madness, and their aim is to add you to the very slowly growing list of cases where they have managed to slip this argument through without anyone noticing, or wanting to notice, that it's just a blatant disregard of the Act, backed up by some very half-baked reasoning.

 

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.

Are they still planning on demanding that you pay s69 County Courts Act 1984 interest?

 

They could have something of a problem with that for a start.

 

OK, your Defence was fine, it did cover all the issues, so there is little wrong with that.

 

Brachers are known to field the easy cases, but Arsemex soon push them out of the way to bring in their star performers when faced with a credible Defence, as yours indeed was.

 

The Mishcon bunch are like Brachers, but it costs Arsemex more to use them, so they are expected to shout louder for being paid the extra.

 

At the moment, Arsemex have a huge face plant waiting for them in Court. It's a matter of when, not if. The way they have been conducting things is destined to fail, but until then, many people will suffer until this errant nonsense is thwarted.

 

They want you to be a victim, and I regret to say that there remains a real possibility that might happen. The issue will rest on the quality of the Judge you get on the day. If they are decent and astute, and read your Defence, and your Witness Statement and listen to what you have to say, then you will win and they will lose.

 

However, if you get a biased or easily led Judge, then they will win, and you will lose. The facts won't matter, so my advice is to play the game and work like a dog to win first time out, but do so on the assumption that you will immediately Appeal and take this up a notch if they manage to twist things around on the day.

 

IOW, plan your Appeal now, and work back from that.

 

Then, when in Court, you will be watching and waiting for all of your key Appeal points to crop up, and when they do, you kick up a big fuss and fight them hard on every issue, if only for the benefit of the Tape.

 

Should you lose, then be ready to finish the day off with a pre-prepared summary of the key Appeal points (without saying Appeal at that stage), and ask the Judge if he/she would like to comment on each one, just so that you understand why you have lost.

 

Then tell the Judge you would like to Appeal, and say why, listing out the key reasons.

 

Then smile at the opposition, and look ahead to getting your own back one step up when you may be the one that nails this shower, if Shakespeare62 does not beat you to it.

 

HTH

 

Cheers,

BRW

Edited March 11, 2010 by banker_rhymes_with
Typooo

[gezwee]

Amazing how Arsemex and Mdr opt in and out of the act when its suits them

 

Best of luck

 

Gez

[shakespeare62]

** IMPORTANT **

 

The following advice is courtesy of Cagger dad - and is an alternative option.

 

1) As you are dealing in your case with the same points that I am taking to appeal then a suitable approach for you is to apply for a stay in your proceedings pending the outcome of my appeal.

 

2) The first stage would be for you to write to the Respondent's solicitors stating that you know about my appeal and ask them to consent to a stay. That way you line up the Respondent for the costs of an opposed application (i.e. if they refuse to agree and you have to formally apply to the Court for a stay)

 

3) Obviously you will need my specific details. I can supply these on the STRICT UNDERSTANDING that you keep my ID (claim number, real name etc.) off the forums, until as such time as it is fully in the public domain - e.g. following my Appeal / High Court Decision.

 

Suggestion.

 

If you want to go this route, may I suggest you first post up a draft letter for comments. For the draft version - just refer to my username, and use X's for my claim no etc.

 

Comments please folks.

 

'shakey

 

ps. Remember - permission has been given for me to Appeal, by a circuit judge, His Honour Judge [X] on the grounds that my appeal has a real prospect of success.

Edited March 11, 2010 by shakespeare62

[gh2008]

IMHO that is a very generous offer from Shakey and could be a *very* 'smart' way of dealing with the current 'situation' i.e. the late WS

 

It would also give you proper breathing space to get up to speed with the case and also give a big clue as to the arguments used and to which way it is likely to go.

Edited March 11, 2010 by gh2008
added 2nd para

[the_shadow]

IMHO that is a very generous offer from Shakey and could be a *very* 'smart' way of dealing with the current 'situation' i.e. the late WS

 

It would also give you proper breathing space to get up to speed with the case and also give a big clue as to the arguments used and to which way it is likely to go.

 

Seconded, it would seem the smart option. It alerts the judge in your case to a similarity in how the other side behave also.

 

Have to say pretty disgusted with Mishcon's ws and their attempt to negate the CCA1974... how many times in letters do amex clearly state you are bound to the agreement due to the text above the signature stating "sign only if you wish to be bound by the CCA1974", works both ways Mischon/amex

 

If they want the benefits of the CCA then they have to take correct steps to exit, no matter of the cases they have mentioned they have won that arent case law and imo could possibly be overturned by an appeal... and as for the square peg of a loan case attempting to fit into a round hole I wont even go there.

 

S.

[Desperate Daniella]

Totally agree. That is wonderful of Shakey and I think would be a great option for you.

 

DD

[humbleman]

** IMPORTANT **

 

The following advice is courtesy of Cagger dad - and is an alternative option.

 

1) As you are dealing in your case with the same points that I am taking to appeal then a suitable approach for you is to apply for a stay in your proceedings pending the outcome of my appeal.

 

 

 

In which case your win will be a win for im4347 as well.

[im4347]

Hi guys,

 

Thank you so much for all the replies, and most importantly, thank you Shakespeare62 for such a generous offer, I would be mad not to accept it.

 

I will definately construct a draft for the stay and post it up later today, and I can assure you Shakey that your personal details will remain private and confidential.

 

Once again thanks guys for all your help.

 

Regards,

 

IM

[shakespeare62]

'IM - post up your draft when you're ready. I'll pm you my case details tomorrow.

 

Cheers

 

Shakey.

[im4347]

Hi Shakey

 

Thanks for your help, much appreciated.

 

This is my draft request for a stay, any amendments/additions, would be most welcome, as this is my first time at doing this;

 

Mishcon de Reya Solicitors

12 Red Lion Square

London

WC1R 4QD

 

XX March 2010

 

 

Dear Sir/Madam

 

American Express Services Europe Ltd – V – IM4347

 

Claim Number: XXXXXXXX

 

 

I am writing to request a stay on my case, as I am fully aware of case xxxxxxxx, Shakespeare – v – American Express Services Europe Ltd, who has made an appeal which has been granted by circuit Judge, His Honour Judge xxxxx.

 

Shakespeare has raised the same points that have been raised in my defence. I therefore request your consent to a stay pending the outcome of case xxxxxxxx, Shakespeare – v – Amex.

 

 

Yours faithfully

 

IM4347

 

Thanks.

 

IM