IM vs AMEX - Help with defence

[the_shadow]

The default notice is bunkem too... it allows you 14 calendar days from issue, they havent allowed for service of the document which normally is 2 working days if first class 4 working days if second.

 

You've blanked the day out so cant tell if its affected by a weekend in the middle of those dates either.

 

S.

[the_shadow]

Hi guys,

 

Thanks for replying, much appreciated.

 

I thought the same regarding the 'application form' as there are no prescribed terms etc on it.

 

With regards to the default, the dates are as follows:

 

Default notice letter - 3rd Aug 2007 (can't remember if it was 1st/2nd class Post)

Cancellation of the account - 19th Aug 2007 (according to the August 07 statement)

Registered on my credit file - 19th Nov 2007

 

haha poor old amex... they've done it again... DN was dated Friday, so allow two WORKING days for service and the 14 calendar days dont start till Weds 8th August 07.

 

Basically the default rectify date should have been the 22nd August, they've short changed you 5 days!

 

S.

[the_shadow]

Was this a court order? What stage are you at?

 

You need to give them the info contained in posts #2 and #3

 

and post #5

 

S.

[the_shadow]

WARNING - Pls get this checked out properly by someone with experience doing this. I've taken bits from this site and put in some other stuff but it needs to be double checked prior to doing anything with it.

 

re-number, delete/change the stuff in Red

 

S.

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also 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).

 

6. The 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 an 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.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

[the_shadow]

I'll get onto the unenforceable CCA later today

 

Cheers,

 

I only got as far as copying bulk info from my hard drive, would need prettying up a lot I couldnt find wilson v fct though, I obviously need to download that as well.

 

S.

 

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.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. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is further confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

[the_shadow]

Thank you so much guys for your efficiency and time, the defence is absolutely brilliant!!!

 

Just a quick query, I was looking back at the order by the court to Amex/Brachers, they were told to supply the following, 1,2,and 5 have obviously been covered in the defence by you guys, but what do they mean by points 3 & 4?

 

1. Copies of the CCA and any documents referred to within which complies with the Credit Act 1974 etc

 

2. Default Notice compliant with S87 (1) CCA 1974 etc

 

3.Document, Contract, or Deed of Assignment

 

4. Notice of Assignment with proof of service of the same compliant with S196 of the Law Prpoerty Act 1925

 

5. Copies of any statements or orther documents etc.

 

Regards,

IM

 

Deed of assignment is the contract between the OC amex and the DCA normally, its the sale of the debt and contains confidential business information i.e. how much the DCA paid for the debt

 

Likewise Notice of Assignment is the letter sent to yourself that the debt has been sold.

 

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

 

S.

[the_shadow]

Thanks Shadow for clarifing that for me.

 

Regards

IM

 

Might just be the judge being thorough as most court actions are by DCA's against defendants I believe rather than the original lender. Just to make sure though can you confirm the Claimants details directly off of the court papers served to yourself.

 

S.

[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.

[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.

[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.

[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.

[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

[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.