AMEX - help needed

[shinobi101]

I sent this and have not heard from them since:

 

WITHOUT PREJUDICE

Thank you for your letter of 17/06/09, the contents of which have been noted.

 

With regard to what you call my ‘alleged terms,’ you respond as if this was the first mention of them. It is in fact the third. If your subordinate (Mr King) did not know how to respond, then he should have sought your advice sooner.

 

Your points numbered 1 – 7 rest on the tenuous assumption that the unsigned document headed “CREDIT CARD AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974” is in fact signed, when the copy you sent me clearly isn’t.

 

Without a correctly executed agreement you have no basis for action. As you have consistently refused to show me a correctly executed agreement with both signature and all prescribed terms exists, I can only assume this does not exist. The courts are prohibited by s127(3) of CCA1974 from enforcing the alleged agreement based on the documentation you have supplied.

 

If a correctly executed agreement existed, Amex would then become entitled to the total amount £146 as given on the faulty (and therefore ineffective) default notice issued on 21st April 2009, which did not allow, within the notice itself, for postal service.

 

If I receive a valid agreement, I will be prepared to offer American Express the aforementioned £146 as full and final settlement of the alleged debt, provided I receive a letter direct from Amex, in their envelope and on their own headed paper, confirming they accept this as full and final settlement.

 

Notwithstanding the above, you have failed to respond correctly to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore:

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

This limit has expired.

As you are no doubt aware section 77(6) states:

If the creditor fails to comply with Subsection (1)

(a) He is not entitled , while the default continues, to enforce the agreement.

Therefore this account has become unenforceable at law.

 

You have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, and failed to provide any of the other documentation requested.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

It is not sufficient to simply state that you have a ‘legal right.’ You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

Should you not respond within 14 days I expect that this means you agree to remove all such data.

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

The lack of a credit agreement is a very clear dispute and as such the following applies.

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not register any information in respect of the account with any credit reference agency.

* The account may not passed to a third party!

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

 

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

I would appreciate your due diligence in this matter.

[shinobi101]

Then today I got a letter from AIC claiming that they are now collecting this debt.

[the_shadow]

haha quelle suprise..

 

Amex playing pass the hot potato round

 

Youre doing a grand job, keep it up

 

S.

[diddydicky]

be careful of sending letters "without prejudice" if you want to refer to any part of them in court!!

[shinobi101]

be careful of sending letters "without prejudice" if you want to refer to any part of them in court!!

 

Thanks diddydicky, I actually would want to use that. If they 'find' a valid CCA, I would want to prove that as I had already offered the £146 on the dodgy DN, there was no basis for them to sue me for the same amount.

[shinobi101]

Any views on my intended reply to AIC?

 

I have had long and detailed correspondence about the above referenced account with your competitor, Newman and Co. I am indeed surprised that they appear to have given up. It may be of benefit to you to ask American Express for copies of correspondence between me and Newman.

 

We appear to have established some clear facts, but one key question remains unanswered, and a clear response is needed from American Express on this issue. Maybe you will be able to help with this, as it is of particular importance.

 

The question I, and others, are awaiting a clear answer to is:

 

"I’m now aware that securitisation is American Express’s main funding mechanism for its loan book and it seems at least possible, therefore, that the alleged account referenced may have been so treated. Given that the alleged account, although aggregated for this purpose, necessarily links back to individuals it seems clear that basic information as to whether or not a given account forms part of a securitisation pool by having been sold to an SPV is essentially personal data.

 

However, I have previously not been made aware of any reference to transactions with third parties involving alleged accounts associated with me. That should therefore mean that the alleged account is not now and has not been part of any securitisation pool or otherwise traded with bodies outside the American Express group including but not limited to SPVs. Therefore, in line with the Pre action Protocols, I require confirmation that this is, or is not the case."

 

I have already seen their form letter which uses lots of words to not actually answer the above question:

 

"Your account is funded by American Express Services Europe Limited. We do not believe it is necessary to provide any further information as to the source of funding as it is irrelevant to the issue at hand. To suggest that we would not be entitled to recover debt accrued by you through your use of the card is simply wrong.

We are in no doubt as to the fact that the debt is genuinely owed by you.........provided you with 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 their being a legal entity to which that money should be repaid."

 

Put simply, the question is: “Has this account been securitised or not?”

A simple and direct answer would be nice!

 

Notwithstanding the above, I seem to have clearly established by rather tedious dialogue with Newman & Co (they don’t seem to answer questions very well either) the following two points:

 

1. There is no valid consumer credit agreement in relation to this account. As such, it is completely unenforceable at law, by virtue of s127(3) of the consumer credit act 1974.

 

2. The default notice issued on 21st April 2009 was invalid as it did not allow time for postal service. As you know, this must be included in the notice itself, they can’t just wait a couple of extra days. This limits the maximum possible liability to the amount stated on the defective default notice £146, and even then, this amount only becomes payable if a valid CCA exists.

[smouk]

There really is no point in engaging with the Glasgow liars. Personally, I have just refused to discuss any aspect of the account with any DCA and limit my communication with them to warnings concerning their conduct and the potential for my making a claim against them.

[ScarletPimpernel]

I agree with smouk. No purpose will be served by sending anything to AIC. I've dealt with them twice in relation to the same Amex accounts; their only response to anything is template threats. Formal complaints were acknowledged, but they failed to either send their complaint procedure or respond to the complaints; they didn't pursue the matter either, until it came back to them on Amex's DCA-go-round.

 

Amex's attempts to avoid the securitization issue merely make me more suspicious. After all, if the accounts were not securitized then they would surely simply say so. The fact is that if it they are found to have securitized accounts their entire UK operation could be jeopardised. The UK parasites that make money from these accounts - the DCAs and solicitors - have already demonstrated the same contempt for the law and regulations as Amex.

 

I suspect that the bosses of Amex UK are under huge pressure from the parent company to keep a lid on securitization, as well as to keep chasing the money.

 

In the circumstances one would expect them to fight hard - and dirty.

[smouk]

...but they failed to either send their complaint procedure or respond to the complaints;

Yup!

[shinobi101]

Thanks smouk & SP. I think I'll send this, and follow it up with some kind of "get lost" letter when they send me complete BS back.

 

 

Firstly, this matter will be dealt with in writing only. There will be no communication by any other means.

 

This account is in dispute, and will remain so until a valid agreement is received. The application form showing no prescribed terms supplied by your competitor Newman & Company is not a correctly executed agreement, and as such, is unenforceable. Newman gave up in the end because even they know the ‘agreement’ is unenforceable.

 

Without a correctly executed agreement there is no basis for legal action. The courts are prohibited by s127(3) of CCA1974 from enforcing the alleged agreement based on the documentation previously supplied.

 

The document required is a true and complete copy of the executed agreement that contains all of the prescribed terms, all other required terms and statutory notices and was signed by both the original creditor and myself as defined in section 61(1) of CCA 1974 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, a copy of that document should also have been sent.

 

Your client has failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, and failed to provide any of the other documentation requested.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS. Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

The default notice was also faulty, as it did not allow for postal service. This limits any potential claim Amex may have to the amount stated in the default notice itself, which is £146. This may also give rise to a counterclaim for unlawful recission of contract.

 

I would respectfully suggest that you pass this matter back to American Express with the recommendation that they locate a correctly formed agreement before they waste any more time on this. Of course, if a genuine agreement is located, negotiation would then be offered in good faith.

[smouk]

Update?

[shinobi101]

AIC gave up straight away:lol: I never even had a reply to the letter I sent them.

 

I've had quite a few voicemails saying "Message for [shinobi101] to call the named drone at RMA resolve on....."

 

Of course I never rang them back because they didn't explain who they are or what they want. They seem to have stopped at the moment as well. Haven't heard anything for a few weeks.

 

I said in one letter (I forget which) that I would offer them £146 (the amount on the dodgy DN) as full and final settlement on a £5500 balance, subject to an enforceable CCA being shown. They don't appear to have accepted my offer:lol:

[smouk]

They will be back, a bit like scabies!

 

However, they obviously know it'll be a fight. The F&F might yet happen but you'll want your CRF sanitising as part of the deal!

[shinobi101]

Thanks smouk, I never even thought of getting my credit file cleaned up as part of the deal.

 

Maybe I'll send a formal offer including them cleaning up my credit file in return for their £146. That way they can earn their money

[shinobi101]

Had a snotty letter from RMA claiming they had made "exhaustive attempts" to contact me, and they would send this back to Amex with a recommendation for legal action.

 

I replied with this:

 

I have received written communication from you dated 19/10/09. Previous to that I received a postcard from you, telling me you would contact me the next day. You didn’t. I assume your letter of the 19th Oct is intended as that contact.

 

You should note the following:

 

1. If you think one postcard is an “exhaustive attempt” at anything, I can only assume that was intended as a joke.

2. American Express is aware that due to adverse financial circumstances, I cannot afford to pay them.

3. I do not have any assets of any significant value.

4. I have already established with Newman & Co that there is no valid agreement between myself and Amex. Therefore their claim is irretrievably unenforceable.

5. The Default notice they issued was defective in that it didn’t allow for postal service. This means their maximum possible claim would be limited to the £146 shown on the default notice, and even then, only if they could produce a valid CCA.

6. I have offered £146 as full and final settlement subject to the production of a valid agreement. This was ignored.

 

Below is an extract from my last letter to Newman & Co, which was also ignored:

 

“Without a correctly executed agreement you have no basis for action. As you have consistently refused to show me a correctly executed agreement with both signature and all prescribed terms exists, I can only assume this does not exist. The courts are prohibited by s127(3) of CCA1974 from enforcing the alleged agreement based on the documentation you have supplied.

If a correctly executed agreement existed, Amex would then become entitled to the total amount £146 as given on the faulty (and therefore ineffective) default notice issued on 21st April 2009, which did not allow, within the notice itself, for postal service.

If I receive a valid agreement, I will be prepared to offer American Express the aforementioned £146 as full and final settlement of the alleged debt, provided I receive a letter direct from Amex, in their envelope and on their own headed paper, confirming they accept this as full and final settlement.”

 

Any attempt at legal action would therefore be both vexatious and pointless.

 

CONDITIONAL OFFER TO AMEX

 

The offer is ONE HUNDRED AND FORTY SIX POUNDS (£146) as FULL AND FINAL SETTLEMENT.

For a limited time, I am prepared to waive the requirement to see an enforceable CCA.

Acceptance of this offer must be confirmed to me directly by AMEX.

God’s Peace,

[shinobi101]

[diddydicky]

did you accept the unlawful rescission?

[shinobi101]

did you accept the unlawful rescission?

 

I don't understand how I would do that?

 

I offered an F&F for £146 because I wanted them to go away. For the time being they have anyway.

 

I remember threating counter-claim for unlawful recission, but they ignored that completely and have gone quiet again.

 

This is happening a lot. Seems to me Amex are in trouble

[Mr Worried]

Hi All

 

Sub Sub

[diddydicky]

dear sir,

 

with regard to your letter unlawfully terminating my agreement./demanding payment in full of sums not yet due under the argeement

 

 

I accept your unlawful rescission of the agreement and consider myself no longer bound by the terms of any alleged agreement

 

The agreement, if indeed it ever existed is now terminated

 

please advise me of the genuine arrears which were outstanding at the time of termination .

 

yours etc

 

 

delete as applicable

[shinobi101]

dear sir,

 

with regard to your letter unlawfully terminating my agreement./demanding payment in full of sums not yet due under the argeement

 

 

I accept your unlawful rescission of the agreement and consider myself no longer bound by the terms of any alleged agreement

 

The agreement, if indeed it ever existed is now terminated

 

please advise me of the genuine arrears which were outstanding at the time of termination .

 

yours etc

 

 

delete as applicable

 

Thanks DD, no I didn't send Amex anything like that. I threatened one of their DCA's with counterclaim for unlawful recission. They've been quiet for a few months now. Should I send the acceptance of unlawful recission letter, or just leave it for now. The CCA is unenforceable.

[diddydicky]

if that was in writing thats useful

 

 

 

you could always include it in some other correspondence

[shinobi101]

Everything was in writing:D

 

If I get another DCA contact I'll send it direct to Amex, and a "get lost" letter to the DCA.

[Desperate Daniella]

Hi Shinobi,

 

I hadn't heard anything from Amex since May and Moorcroft about six months ago, and prior to that it was RMA, and AIC - really frightening (but that was before I joined CAG ) and then got a letter from Vil, who may be the latest to tell Amex they are confident of getting the dosh.

 

Honestly, why would a company call itself 'Vil'? You have only to add the one (same) letter at the beginning or the end, and either way it's pretty descriptive.

[shinobi101]

Vil - Maybe it's an acronym? Vile Ignorant Losers?

 

I haven't heard from them or Moorcroft yet. Maybe next time I'll print off a letter I sent to a previous DCA and just make changes in pen. i.e. cross out the name and date, and just write the new one in. Although I did that with someone working for barclays last week and just got 2 more threatograms with no other reply.

[Desperate Daniella]

That's a good idea. Shows the right amount of contempt.