AMEX - help needed

[diddydicky]

no one seems to haev commented on the agreement

 

my take

 

1/ the first is an application form without any prescribed terms

2/ in any event it is not clearly legible therefore does not comply with the creditors obligations

 

the second document looks like a posted customer copy and i cant see than any customer signature ever existed on it so my opinion is that niether of these documents represents a properly executed agreement

[shinobi101]

Thanks to all. I'm ready to reply to the DCA.

 

Any advice or comments please?

 

 

ACCOUNT IN DISPUTE

 

This account is in dispute for two reasons:

 

1. Invalid/unenforceable CCA.

An application form is NOT a consumer credit agreement. It is an application form.

The document supplied does not contain any of the prescribed terms on the signed document, and is therefore unenforceable under the consumer credit act 1974 s127 (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...”

The statement of terms and conditions attached is a customer copy to keep, and is not signed, and cannot be regarded as part of a valid CCA.

 

2. Invalid default notice.

The default notice issued is invalid as it does not allow for postal service. It does not matter what was done after the invalid default notice was issued, it is the fact that it was faulty that counts.

As the default notice was faulty, even if a valid contract can be produced the maximum claim is now limited to the amount stated as in arrears on the default notice itself.

 

 

With regard to your involvement, the claim that a third party can be assigned to this case relies on the terms and conditions of the alleged agreement.

The documentation supplied does not constitute an agreement, and therefore cannot be used to justify the intervention of a third party in this matter.

The standing of Newman & Co in this matter requires both a valid contract authorising it, and written confirmation from the original creditor that they have assigned agency to you. This is the "proof of agency" I requested in my letter of 16th May. It was not a request for a "deed of assignment." as you did not at any point claim to have "bought" the alleged debt.

 

You will need to clarify the situation with American Express with regard to the existence (or not) of a valid, enforceable consumer credit agreement.

[banker_rhymes_with]

Hello Shinobi101!

 

Looks fine, send it. About the only addition would be to mention the Agreement was Terminated whilst in a claimed default situation by Amex. It's worth slipping that in just in case Amex later try to claim they Terminated via s76 or s98, neither of which can be used in a default situation because of s76(6) and s98(6).

 

That addition can then be referred to later to keep ramming the point home that Termination had to be via s87/s88. IOW, setting the stage to bring in the defective Default Notice issue when needed.

 

The thing to remember is this can only be a letter to have a toot that you regard the alleged Agreement is in dispute, so you may as well add anything else that might later be useful too, as it won't now do any harm. They've Terminated, so there's no harm mentioning the defective Default Notice because there is zero Amex can do about that now. It'll all go over Newmans' heads anyway, although Newmans will probably send a copy back to Amex. So, assume that Amex will get to see a copy of it at some stage.

 

Newmans and, in turn, Amex will ignore your letter, and will do whatever they want to do.

 

All you can do is send it, and send it via Special Delivery so that it is tracked and you can obtain signed proof of delivery. Then file that proof with the above letter, ready in case this ever goes to Court.

 

Then, sit back and wait for whatever it is they will elect to do next!

 

Cheers,

BRW

Edited June 1, 2009 by banker_rhymes_with
Grammar

[shinobi101]

Hi BRW,

 

Thanks for the extra bits, I'll add those in and send it special D today:)

[shinobi101]

Newmans have decided to refer this to Copes solicitors.

 

They have denied the defective DN.

 

They say I signed the app form agreeing to be bound by the CCA1974, although it has to be said that this must therefore include s127(3)!

 

They will not acknowledge the lack of valid CCA.

[shinobi101]

The acutal text of their letter is:

 

 

With regard to your previous letter, which has again highlighted' issues' which can only be construed as delaying

tactics on your part, and will not be accepted as such on our, or American Express's part.

Please see below for our final responses to your points

1) We have previously provided you with a copy of the application form, and from that you will see it is clear that by

signing the form you were entering into a credit agreement. The signature box contains the phrase "This is a Credit

Agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms".

When entering into a credit card agreement with you, we were required to send you three copies of the agreement. The

first copy (set out as an application form) was sent out in duplicate. One copy would have been signed by you and

returned to us. The second copy (unexecuted, in that it would not have been signed by us) would have been yours to

keep. The third copy sent to you would be an executed copy of the Agreement, as by that stage it would have been

signed by you and by us. We do not send out a version that shows both of our signatures, but nevertheless send an

executed copy, which is the 'card carrier' copy sent with your American Express credit card.

 

This executed copy excludes the signatures, but nonetheless complies with the "true copies" requirement of the

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. These regulations allow us to omit

any signature and/or signature box, so although the card carrier is the executed copy, it does not have to include our

respective signatures. On the basis that you received and have been using your credit card, we can only assume that

you have been provided with the card carrier and therefore the executed copy of the Agreement.

 

2) The default notice sent to you by American Express is not invalid as collection of this debt-did not-commence- until

after this default notice was sent to you by first class post, therefore allowing for postal service.

 

3) You refer to the Account as being "in dispute". However, OFT guidance, states

"By 'disputed' we mean genuinely disputed. We are not seeking to protect 'won't pays' but those who are being pursued

for a debt they do not owe or genuinely believe they do not owe. Debt collectors who can show that the debt is due and

that any dispute has been looked into and the debt confirmed will not be in breach of this provision."

We are in no doubt as to the fact that the debt is genuinely owed by you, and believe that since your Account was

opened you have been provided with all documents necessary to evidence the debt. If you genuinely believe that the

debt is not owed to us, we would ask you to provide details of the company to whom you believe the debt is owed.

Clearly, it cannot be the case that you have spent a significant amount of money on your credit card that has not been

paid back, without there being a legal entity to which that money should be repaid.

 

Please note that no further correspondence will be entered into with regard to the matter of CCA 1974. We note from

your account history, that you have no family income due to your wife losing her job. You advised American Express of

this and yet after this, attempt to claim that this is unenforceable.

 

It is obvious from both your actions and the comment made in email,' that you will respond once your research is

complete' that you are intent on avoiding this debt in its entirety rather than attempting to reach a mutually acceptable

payment agreement which would see this balance repaid. Furthermore ,your duty to repay funds you quite willingly

spent would be fulfilled. However as your actions only re-affirm your avoidance tactics, we are now passing this matter to

Copes Solicitors who are instructed to pursue this matter with the assistance of Legal Action. All associated costs will

be placed on your account.

 

I trust that this makes the situation clear, and that you will now act positively to repay this debt rather than continue

taking the advice of numerous websites, that only serve to make your situation worse.

[the_shadow]

The acutal text of their letter is:

 

 

I trust that this makes the situation clear, and that you will now act positively to repay this debt rather than continue

taking the advice of numerous websites, that only serve to make your situation worse.

 

:grin::grin:

 

Most of that is typical amex template letter... the executed cardcarrier crap and the OFT version of the dispute....

 

Never seen the default notice being correct as they didnt start collection process until after the 14 days:confused:

 

As BRW stated... they will do.............as they do...

 

S.

[diddydicky]

these are my layman comments -ally couched correctly but i believe valid

 

 

the agreement should have said "this is a credit CARD agreement"

 

it does not matter when "collection of the debt" occurred- the default notice was defective as soon as it was sent and ONLY the issue of a replacement non defective DN prior to termination could have rectified it the account therefore was terminated on the basis of a defective DN (i don't personally think that "number of days rather than a specified date invalidates the DN but it is neither here nor there since 14 days is not sufficient to allow for service by post in any event so gthe argument is acedemic)

 

the consumer credit act was drafted to protect consumers, not to assist creditors

 

it was predicated on the basis that the consumer would be at a distinct disadvantage in terms of legal knowlegde

 

it was intended and confirmed that the onus was on the creditor to abide strictly by its terms and that where it did not do so then it forfeited monies advanced as a gift .

 

nowhere in the CCA does the use of the card or advanced funds permit the creditor to avoid his responsibilites under the act.

 

the debtor is entitled, even after using the card, if he later finds by whatever means that he has been honouring a defective agreement to seek releif from it

[shinobi101]

Never seen the default notice being correct as they didnt start collection process until after the 14 days:confused:

 

 

Not sure. This came from Newmans, on their headed paper, but a lot of it looks like Amex writing.

 

I have been very firm in demanding proof of claim, but Newmans either don't have it, (most likely) or won't provide it.

 

I expect to be dragged through the courts on this:(

[the_shadow]

Not sure. This came from Newmans, on their headed paper, but a lot of it looks like Amex writing.

 

I have been very firm in demanding proof of claim, but Newmans either don't have it, (most likely) or won't provide it.

 

I expect to be dragged through the courts on this:(

 

Well if they do issue a claim, it'll give you a chance to get hold of the docs prior to a hearing to understand the position better.

 

Plus with the Duff DN, you can attempt a strike out due to no cause of action for amex/newmans on the back of a duff DN.

 

S.

[smouk]

Just for reference, I refuse to correspond with the DCAs other than to warn them and demand dialogue with Amex. They keep telling me to talk to the DCA but it just ain't going to happen.

 

How about addressing all future correspondence to Mr Cope in person at his Devon office? You would have good grounds for doing so as there seems to be no qualified staff anywhere else within his practice.

[shinobi101]

Gone through all paperwork.

 

Found these, dated between the DN and Cancellation notice.

 

They don't look like valid DN's to me. This doesn't change anything does it?

AmexExtra.pdf

[ScarletPimpernel]

There's an air of desperation about the Newman letter, isn't there?

 

Not that it changes anything - Amex have never let a little thing like compliance with the law stand in the way of their collection efforts.

[the_shadow]

Gone through all paperwork.

 

Found these, dated between the DN and Cancellation notice.

 

They don't look like valid DN's to me. This doesn't change anything does it?

 

No.... These are new requirements brought in by CCA2006, if they dont serve a default sums notice regularly they lose the right to receive interest and charges on the amount I believe.

 

S.

[smouk]

I think they must've only just started using them in 09 - certainly I didn't receive any of these in 08.

[the_shadow]

I think they must've only just started using them in 09 - certainly I didn't receive any of these in 08.

 

 

 

Think the relevant bits are in this bit :-

10 Notice of sums in arrears under running-account credit agreements

After section 86B of the 1974 Act (inserted by section 9 of this Act) insert—

 

“86C Notice of sums in arrears under running-account credit agreements

 

(1) This section applies where at any time the following conditions are

satisfied—

(a) that the debtor under an applicable agreement is required to

have made at least two payments under the agreement before

that time;

(b) that the last two payments which he is required to have made

before that time have not been made;

© that the creditor has not already been required to give a notice

under this section in relation to either of those payments; and

(d) if a judgment has been given in relation to the agreement before

that time, that there is no sum still to be paid under the

judgment by the debtor.

Consumer Credit Act 2006 (c. 14) 9

(2) The creditor shall, no later than the end of the period within which he

is next required to give a statement under section 78(4) in relation to the

agreement, give the debtor a notice under this section.

(3) The notice shall include a copy of the current arrears information sheet

under section 86A.

(4) The notice may be incorporated in a statement or other notice which the creditor gives the debtor in relation to the agreement by virtue of

another provision of this Act.

(5) The debtor shall have no liability to pay any sum in connection with the

preparation or the giving to him of the notice.

(6) Regulations may make provision about the form and content of notices

under this section.

(7) In this section ‘applicable agreement’ means an agreement which—

(a) is a regulated agreement for running-account credit; and

(b) is neither a non-commercial agreement nor a small agreement.”

 

11 Failure to give notice of sums in arrears

After section 86C of the 1974 Act (inserted by section 10 of this Act) insert—

“86D Failure to give notice of sums in arrears

(1) This section applies where the creditor or owner under an agreement is

under a duty to give the debtor or hirer notices under section 86B but

fails to give him such a notice—

(a) within the period mentioned in subsection (2)(a) of that section;

or

(b) within the period of six months beginning with the day after the

day on which such a notice was last given to him.

(2) This section also applies where the creditor under an agreement is

under a duty to give the debtor a notice under section 86C but fails to

do so before the end of the period mentioned in subsection (2) of that

section.

(3) The creditor or owner shall not be entitled to enforce the agreement

during the period of non-compliance.

(4) The debtor or hirer shall have no liability to pay—

(a) any sum of interest to the extent calculated by reference to the

period of non-compliance or to any part of it; or

(b) any default sum which (apart from this paragraph)—

(i) would have become payable during the period of noncompliance;

or

(ii) would have become payable after the end of that period

in connection with a breach of the agreement which

occurs during that period (whether or not the breach

continues after the end of that period).

(5) In this section ‘the period of non-compliance’ means, in relation to a

failure to give a notice under section 86B or 86C to the debtor or hirer,

the period which—

Consumer 10 Credit Act 2006 (c. 14)

(a) begins immediately after the end of the period mentioned in (as

the case may be) subsection (1)(a) or (b) or (2); and

(b) ends at the end of the day mentioned in subsection (6).

(6) That day is—

(a) in the case of a failure to give a notice under section 86B as

mentioned in subsection (1)(a) of this section, the day on which

the notice is given to the debtor or hirer;

(b) in the case of a failure to give a notice under that section as

mentioned in subsection (1)(b) of this section, the earlier of the

following—

(i) the day on which the notice is given to the debtor or

hirer;

(ii) the day on which the condition mentioned in subsection

(4)(a) of that section is satisfied;

© in the case of a failure to give a notice under section 86C, the day

on which the notice is given to the debtor.”

12 Notice of default sums

After section 86D of the 1974 Act (inserted by section 11 of this Act) insert—

“86E Notice of default sums

(1) This section applies where a default sum becomes payable under a

regulated agreement by the debtor or hirer.

(2) The creditor or owner shall, within the prescribed period after the

default sum becomes payable, give the debtor or hirer a notice under

this section.

(3) The notice under this section may be incorporated in a statement or

other notice which the creditor or owner gives the debtor or hirer in

relation to the agreement by virtue of another provision of this Act.

(4) The debtor or hirer shall have no liability to pay interest in connection

with the default sum to the extent that the interest is calculated by

reference to a period occurring before the 29th day after the day on

which the debtor or hirer is given the notice under this section.

(5) If the creditor or owner fails to give the debtor or hirer the notice under

this section within the period mentioned in subsection (2), he shall not

be entitled to enforce the agreement until the notice is given to the

debtor or hirer.

(6) The debtor or hirer shall have no liability to pay any sum in connection

with the preparation or the giving to him of the notice under this

section.

(7) Regulations may—

(a) provide that this section does not apply in relation to a default

sum which is less than a prescribed amount;

(b) make provision about the form and content of notices under this

section.

(8) This section does not apply in relation to a non-commercial agreement

or to a small agreement.”

 

[diddydicky]

Not sure. This came from Newmans, on their headed paper, but a lot of it looks like Amex writing.

 

I have been very firm in demanding proof of claim, but Newmans either don't have it, (most likely) or won't provide it.

 

I expect to be dragged through the courts on this:(

 

might be a good idea to do a SAR in the meantime

[shinobi101]

Good point. Should I send it straight to Amex?

 

What info should I ask for?

 

Thanks

[diddydicky]

check the threads

 

ask for absolutely everything

[diddydicky]

Subject Access Request

 

this would be a good start

 

SUBJECT ACCESS REQUEST

 

Dear Sir/Madam

 

I understand that you currently hold details of my personal and financial information within your internal record systems with regard to a credit card account as mentioned above.

Please supply me with a complete list of transaction and charges relating to my history with your organization, INCLUDING credit cards, payment protection insurance and other products. Alternatively a complete set of statements for the accounts or associated accounts is acceptable. In addition please supply the following

:

Full copies of all contracts which you believe exist or have existed between myself and your organization, in particular The original signed, executed credit agreement/s and any terms and conditions that applied to the account/s at the time the account was opened and/or defaulted including true copies of any documents you hold in support of the same.

A complete list of all transactions or statements relating to my credit card Account with your organization.

Copies of all documents which include any of my personal information including copies of any contacts or invoices, emails or computer records containing my personal information, or any records which pertain to this information.

Full copies or transcripts of any correspondence in postal, email or any other format which you have entered into with any individual, organization or third party reference agencies, , including credit reference agencies ,which contains my personal or financial information, or which pertains to me.

Where any previous information or records held have been deleted or disposed of, the methods used to do so, including dates, certificates or references confirming details of destruction. Where you are unable to provide such certificates, please provide a declaration, signed by an authorised officer of your company, confirming the dates and methods of destruction of this data.

 

 

 

- 2

 

 

Full hard copy print outs of my personal or financial information, held in a digital, magnetic or any other format which is held in any archives, backups or other storage devices / locations.

 

A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

 

IF YOU UNABLE TO DEAL WITH THIS REQUEST, YOU SHOULD IMMEDIATELY FORWARD IT TO THE PERSON WITHIN YOUR ORGANISATION RESPONSIBLE FOR DATA PROTECTION.

 

You are reminded that you have a duty to inform me if you do not have the above documents This is confirmed in High Court Law - Ezsias v Welsh Ministers - [2007] All ER (D) 65 (Dec). If you do not have them you must tell me where they are or how and when they were disposed of

 

You are reminded that you are obliged to supply all the above documents in line with the Information Commissioners Technical Guidance update (Dated August 2007)

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

 

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Yours faithfully,

[shinobi101]

Updating.

 

After their last BS letter, I sent this:

 

With reference to your letter dated 4th June 2009, I find it remarkable that you accuse me of “delaying tactics” when it is you who refuse to authenticate your claim.

 

You do not appear to read letters properly, as I requested other information besides a contract. These requests were not even acknowledged. I assume you have copies on file, if you wish to re-read any of them.

 

Since you are refusing to provide validation of your claim, I have no choice but to send a Subject Access Request to American Express. They are obliged under the Data Protection Act to provide the information requested within 40 days.

 

When I receive the correct documentation, then I will be happy to negotiate such payment as is possible under the circumstances. Although it should be noted that American Express have refused negotiation, and an offer of payment once already.

 

If your claim was genuine, I do not think you would have any trouble with such a simple request. If the requested documentation exists, then I simply do not understand the reason for your refusal to provide it.

 

Your comment about agreeing to be bound by CCA1974 must obviously include s127(3).

 

Your comment about the default notice simply doesn’t make sense. You appear to imply that once the default notice is posted you can commence collection. This is clearly not the case, and I suggest you re-check your facts in this matter.

 

With respect to OFT guidelines, by belief that no money (or very little) is owed to Amex is entirely genuine, for reasons including, but not limited to: (1) Your refusal or inability to show me a valid agreement, and (2) The faulty default notice.

 

With reference to your comment about “who the debt is owed to,” no debt is owed by me to you. You claim American Express as the original creditor, and as such, any monies lawfully owed could be owed only to them.

 

It is my hope to avoid unnecessary litigation, as this can be resolved by negotiation as long as you are prepared to provide adequate validation of your claim.

 

I am considering making an offer to Amex, however I would prefer to receive their documentation first.

[shinobi101]

They then said this:

 

Despite our previous correspondence, the outstanding amount remains unpaid.

PLEASE ACT NOW

Contact us immediately on 0845 605 4202 on receipt of this letter.

Failure to act now may result in your file being passed to Copes Solicitors for legal proceedings, which may

increase the debt owed.

 

AND THIS:

 

We are in receipt of your letter, dated 8th June 2009.

We have today sent you notification of intended Legal Action.

It is apparent that you are intent on delaying repayment of this matter by utilising the CCA 1974 avoidance tactics as

advertised on the Internet.

Therefore, we have no option but to commence the Legal process. This is our final communication on the matter.

Should you wish to submit a SAR request to American Express then that is your prerogative, however it will not halt the

collection process of this account.

 

ON THE SAME DAY!

 

I was a little confused.

[diddydicky]

They then said this:

 

Despite our previous correspondence, the outstanding amount remains unpaid.

PLEASE ACT NOW

Contact us immediately on 0845 605 4202 on receipt of this letter.

Failure to act now may result in your file being passed to Copes Solicitors for legal proceedings, which may

increase the debt owed.

 

AND THIS:

 

We are in receipt of your letter, dated 8th June 2009.

We have today sent you notification of intended Legal Action.

It is apparent that you are intent on delaying repayment of this matter by utilising the CCA 1974 avoidance tactics as

advertised on the Internet.

Therefore, we have no option but to commence the Legal process. This is our final communication on the matter.

Should you wish to submit a SAR request to American Express then that is your prerogative, however it will not halt the

collection process of this account.

 

ON THE SAME DAY!

 

I was a little confused.

 

this requires a very simple response:_

 

thank you for your lettter of xxxxxxxxxx

 

 

see you in court

 

yours faithfully

[shinobi101]

My response was perhaps a little overcomplicated??

(The tacit contract is formed over 3 letters)

 

I wrote to you on 16th May 2009, and again on 1st June 2009 requesting verification of

your claim including a lawful contract, validation of the debt (the actual accounting), a

signed invoice and proof of agency, to validate the debt, within ten (10) days.

 

Apart from having obtained an application form from American Express, you have not

even attempted to provide the information requested, which would have been easy if your

claim was genuine. I can only assume you understand these requests as you did not even

once request clarification. You have instead accused me of delaying and avoidance tactics

whilst clearly using these yourself.

 

As you have failed to provide the documentation within the ten (10) days requested in my

last correspondence, we are now in agreement to; and have a lawfully binding tacit

contract comprising, the following terms:

 

1. That you are a third party interloper;

2. That you have no legal standing;

3. That you have no first-hand knowledge of this matter;

4. That your claim is fraudulent;

5. That any damages I suffer, you will be held culpable;

6. That any negative remarks made to a credit reference agency will be removed;

7. You will no longer pursue this matter any further.

 

[shinobi101]

After reading the above, their "team leader" had verbal diarrhoea:

 

We write in response to your letter dated 15th June 2009, the content of which has been noted.

 

We have already issued to you and explained the signed Agreement in which it clearly states in signature box contains the phrase "This is a Credit Agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms".

 

Please note that any-contract between American Express and ourselves-is privy only to us and would not need to be produced unless the debt had been sold (Deed of Assignment). Furthermore, ff it is that you doubt our involvement and/or our validity as a Third Party for American Express, we would assume that you might have contacted them in order to confirm - however, it is apparent that you have not.

 

Please also allow us to respond to your alleged 'terms':

 

1. Newman & Co are not a Third Party interloper. We are a Third Party assigned by and work on behalf of American Express as outlined in section 7.2 of your Terms & Conditions. [not signed - remember?]

2. Our Legal standing is that we work on behalf of American Express and not in a debt buying capacity. As such, American Express and in-turn Newman & Co reserve the right the pursue the outstanding balance via the regulated channels.

3. We have access to your entire account history with American Express and are in constant contact with them and so although we have only recently been assigned your account, it is safe to say that we now have first hand knowledge of the account.

4. You 'dispute' the validity of the account however you have previously paid this account up to March 2009. As such, we would question why after making payment to the account, then claiming financial difficulty that you would then dispute the validity of the account. As I am sure you will appreciate, this only suggests that due to your inability to pay that you are now simply attempting to avoid paying.

5. You refer to 'damages' - please refer to point 1.

6. Any negative information will remain on your Credit file simply due to the fact that you have failed to maintain payment to your account.

7. This matter will be pursued by either ourselves, American Express or any other appointed Third Party working on American Express's behalf.

 

This is our final response to your queries and as such, our recommendation to our client will be that they persue this matter legally.