AMEX - help needed

[shinobi101]

Hi. My credit card account with Amex is in default, and I had letter from a debt collection agency.

 

I wrote back asking for "a lawful contract, signed by and therefore binding both parties" as well as validation of the debt (the actual accounting) and proof of agency.

The DCA have sent a signed application form which an Amex representive has also signed: authorised by AMEX: (their signature & date stamp)

They have also sent a customer copy of credit agreement, which has spaces for cardmember name, address, signature of borrower(s), date of signature(s) and Authorised by AMEX & date.

All these are blank.

The application form (signed) shows no details like credit limit, repayment details etc. The blank agreement has all this.

Is it likely to be enforceable?

What has to be on it to make it enforceable?

Year of application is 2003.

Sorry for the basic questions, but I need to give them a fairly quick reply.

"That's not a contract, neither is it enforceable" would be good:)

Any help or advice would be greatly appreciated.

Edited May 23, 2009 by shinobi101
html was visible

[shinobi101]

Hi. My credit card account with Amex is in default, and I had letter from a debt collection agency.

 

I wrote back asking for "a lawful contract, signed by and therefore binding both parties" as well as validation of the debt (the actual accounting) and proof of agency.

The DCA have sent a signed application form which an Amex representive has also signed: authorised by AMEX: (their signature & date stamp)

They have also sent a customer copy of credit agreement, which has spaces for cardmember name, address, signature of borrower(s), date of signature(s) and Authorised by AMEX & date.

All these are blank.

The application form (signed) shows no details like credit limit, repayment details etc. The blank agreement has all this.

Is it likely to be enforceable?

What has to be on it to make it enforceable?

Year of application is 2003.

Sorry for the basic questions, but I need to give them a fairly quick reply.

"That's not a contract, neither is it enforceable" would be good:)

Any help or advice would be greatly appreciated.

Edited May 27, 2009 by citizenB
OP duplicated post to rid the formatting.

[shinobi101]

3rd time lucky?

 

Hi. My credit card account with Amex is in default, and I had letter from a debt collection agency.

 

I wrote back asking for "a lawful contract, signed by and therefore binding both parties" as well as validation of the debt (the actual accounting) and proof of agency.

 

The DCA have sent a signed application form which an Amex representive has also signed: authorised by AMEX: (their signature & date stamp)

 

They have also sent a customer copy of credit agreement, which has spaces for cardmember name, address, signature of borrower(s), date of signature(s) and Authorised by AMEX & date.

All these are blank.

 

The application form (signed) shows no details like credit limit, repayment details etc. The blank agreement has all this.

 

Is it likely to be enforceable?

 

What has to be on it to make it enforceable?

 

Year of application is 2003.

 

Sorry for the basic questions, but I need to give them a fairly quick reply.

"That's not a contract, neither is it enforceable" would be good

 

Any help or advice would be greatly appreciated.

[smouk]

Hi Shinobi

 

Relax a little - DCAs seem intimidating but they're powerless so you work at your own pace.

 

Can you post up the CCA - edit out the personal and account details?

 

Perhaps most importantly, can you post up the Default Notice?

 

Have they formally 'terminated'/'cancelled' the account?

 

Are the DCA chasing the full balance?

 

Who is the DCA?

[shinobi101]

Thanks smouk,

 

The DCA are chasing the full balance plus a £984 referral fee!

 

Total around £6500.

 

I will get a photobucket account this eve, and post scans.

 

They have asked me to deal with the DCA instead of them, which I haven't agreed to yet. The debt has (according to the DCA) not been sold.

[smouk]

There's a familiar pattern to this Shinobi! Amex must be on a purge!

[shinobi101]

I sent this in response to the DCA's initial enquiry:

 

I confirm that I have received a written communication from you dated 11th May 2009

wherein you make reference to the above matter.

It is apparent that you are acting on the presumption that some relationship that you may

have with American Express, is in some way related to me. I am not knowingly a party to this implied relationship you have with American Express, either directly, indirectly or by means of any tacit consent.

Please provide verification of your claim, including a lawful contract, signed by and therefore binding both parties; a hand signed invoice in accordance with The Bills of Exchange Act 1882 and proof of agency within ten (10) days from the above date so that I may settle any financial obligation I might lawfully owe.

I have asked American Express for this information but have yet to receive a reply. I have also tried on 3 occasions by phone to get American Express to accept the new correspondence address for this account without success. I have finally had to send them notice in writing of the correct address, which is the one given above. The address above is the only address at which correspondence can reliably be received and answered.

Failure to provide verification of your claim will constitute your agreement to the following terms: that you are a third party interloper; you have no legal standing; no first-hand knowledge of this matter; your claim is fraudulent; any damages I suffer; you will be held culpable; that any negative remarks made to a credit reference agency will be removed and that you will no longer pursue this matter any further.

Should you provide sufficient evidence that I owe your organisation or your client any outstanding amount and that you can provide proof that they have assigned you agency, I should be happy to negotiate payment of any verified claim.

I feel this matter is serious and wish to deal with it in writing. I do not give you permission to contact me by telephone. I will be logging the dates and times of your calls and messages and should they continue, I must warn you that they will now constitute ‘harassment’ and I may take action under Section 1 of the Protection from Harassment Act 1997. I may also take further action under the Administration of Justice Act 1970 S.40, which makes it a Criminal Offence for a creditor or a creditor's agent to make demands (for money), which are aimed at causing ‘alarm, distress or humiliation’, because of their frequency or manner.

[shinobi101]

I got this back from them.

AmexAgreement1.pdf

[smouk]

Got the DN?

[shinobi101]

First DN

AmexDN1.pdf

[shinobi101]

Final DN

AmexDNfinal.pdf

[the_shadow]

Some good news shinobi101, the default notice is faulty. They havent allowed for postal service of the document. Did you keep the envelope by any chance?

 

3. 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."

4. 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”

 

and to back that up....

 

 

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.

 

Now that they have terminated you they are only due to the money stated as in arrear on the default notice, everything else would only be available to them if they terminated the agreement properly.

 

Obviously the DCA taking this on will not agree but if you plan to counter any court action the DCA takes this will be the key to the defense.

 

S.

[shinobi101]

Some good news shinobi101, the default notice is faulty. They havent allowed for postal service of the document. Did you keep the envelope by any chance?

 

Thanks Shadow, but I don't quite understand, what should they have done different?

 

Now that they have terminated you they are only due to the money stated as in arrear on the default notice, everything else would only be available to them if they terminated the agreement properly.

 

Any source available that I could quote at them?

 

Also, any thoughts on the validity/enforcability of the "application form" with "customer copy of terms and conditions" in message 8 on this thread?

 

Thanks

[the_shadow]

Thanks Shadow, but I don't quite understand, what should they have done different?

 

 

They have to allow for the default notice to get to you before counting the 14 calendar days, whereas what they have actually done is just count the 14 days flat. So they havent allowed for the post to get to you. The two passages I quoted to you confirm what "served" means in this case so they have basically denied you two days to rectify the breach of agreement.

 

S.

[diddydicky]

sorry to put a spanner in the works but the DN says the following actions MAY be taken against you

 

in fact they did not terminate the agreement until 10 may which is within the time frame

 

unless there record show that termination was earlier than the 8th i think the defective DN argument could be a non starter!!

[alangee]

They can terminate/cancel the agreement whenever they want, but it does not make the DN valid. The_shadow is correct, if an invalid DN is subsequently terminated, you are only liable for the arrears stated on that DN. If you have had unlawful charges made to the account, this may also make the DN defective, and you may be able to make a counter claim against Amex for the recovery of those charges. Who knows, they may end up owing you money.

 

One other point, 21st April was a Thursday, so it is not deemed delivered/served (if using 1st class post) until Monday 25th April, so they only gave you 10 days to rectify the breach.

 

Alan

Edited May 25, 2009 by alangee
additional info

[banker_rhymes_with]

Hello Diddydicky!

 

sorry to put a spanner in the works but the DN says the following actions MAY be taken against you

I can see the confusion, but the Default Notice is invalid. However, rather than me re-type why, please read my Post below:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/137617-zhanzhibar-amex-aic-newman-6.html#post2177953

 

in fact they did not terminate the agreement until 10 may which is within the time frame

 

unless there record show that termination was earlier than the 8th i think the defective DN argument could be a non starter!!

It is not about what they did after the Default Notice was created, the key issue is how the Default Notice was drafted. The actual piece of paper is what matters (the Default Notice).

 

Think of it like a Passport being issued but, instead of your picture and date of birth, they use Donald Duck's.

 

Once issued, the Passport is defective because it has Donald Duck's picture and date of birth! Nothing will change that, a Passport is either valid or it is defective. In this case the Passport is no use as a Passport for your good self, nor Donald Duck for that matter, because he's called Donald Duck not Diddydicky!

 

In the case of the above Default Notice, they have drafted it in such a way that once posted, it was defective, as the NOTICE failed to allow the Statutory 14 clear days of time to remedy the breach. You can't remedy a defective Default Notice because it has no effect whatsoever. It may as well not have been issued.

 

To quote another analogy, a lady can't be half-pregnant. She is either pregnant or not. Same with a Default Notice, it can't be half-valid...it's either valid or it is defective.

 

Parliament did not say that a Default Notice could have a vague stab at getting the Statutory time right, it said the Consumer must be allowed 14 clear days...not if but, no but, yeah but, definite maybe around 14 clear days give or take a few if you close one eye and stand on one leg..

 

If the Notice is defective, it is defective.

 

Amex then ploughed ahead to Terminate but, without the benefit of a compliant Default Notice. So, the actual date of Termination is irrelevant in terms of its effect on the validity of the Default Notice. Or, rather, it cannot fix the Default Notice, but could even make it more defective if they Terminated within the default period.

 

Their only chance of fixing this was to have issued a valid Default Notice before Termination...but, they didn't.

 

Shame.

 

Finally, do lock in to the fact that this is a default situation, so Amex cannot try to use s76 or s98 instead when they realise their mistake. Note s76(6) and s98(6)!

 

Cheers,

BRW

[diddydicky]

thanks for that it's appreciated but- if the "letter" states that you are in default and we MAY terminate the agreement if you do not do such and such IS IT? in fact a default notice or just a letter saying that they MAY do something?

[the_shadow]

thanks for that it's appreciated but- if the "letter" states that you are in default and we MAY terminate the agreement if you do not do such and such IS IT? in fact a default notice or just a letter saying that they MAY do something?

 

If it quotes being served in accordance with section 87(1) then its a default notice.

 

S.

[diddydicky]

excellent, thanks that will be very useful for myself too in due course i suspect!

[shinobi101]

Thanks for all your help with this.

 

Finally, do lock in to the fact that this is a default situation, so Amex cannot try to use s76 or s98 instead when they realise their mistake. Note s76(6) and s98(6)!

 

How do I lock into that fact?

 

Are there any templates to lock them into the default situation and limit their claim?

 

I also believe the "agreement" (shown in message 8 on this thread) is invalid, so that should reduce their claim to zero. Any templates that deal with this?

 

I think it's invalid because the application form doesn't seem to contain any presribed terms, and the terms and conditions attached is a "customer copy to keep" and so cannot be part of the same document, and is also not signed.

 

Am I right?

 

Many Thanks

[diddydicky]

and i would check that customer copy very carefullyas it may well not be the originalthings to look for are the scales of fees etc

[citizenB]

Just another point.. should the DN not say an actual date ie !0th January 2009. NOT "14 days from the date of this letter".

[diddydicky]

well lets not alert them to the fact they get it wrong- 14 days from the date of this letter is fine!!

[shinobi101]

and i would check that customer copy very carefullyas it may well not be the originalthings to look for are the scales of fees etc

 

The T&C's they've provided me with are not signed. And it can't the back of the app form as if it was it would be the amex copy, not cust copy.

 

I'm assuming the agreement is therefore enenforcable as the app form doesn't have prescribed terms. Would appreciate confirmation on this.