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Having Rankine vs American Express used againsnt me in court - can anyone help?


walshy76
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Hi,

 

I was wondering if there is anyone who can help me. I am being taken to court & the claiments are saying they are going to reply on the Rankines VS American Express court case.

 

I have googled & found the court notes, however, what I cant find if whether they have appealed this case, I know they tried to appeal decisions agaisnt other creditors.

 

Also, the claimant in my case are basically saying the preceedent was set that the judge states that failure to comply with a request made under section 78 consumer credit act 74 does not prevent the creditor from commencing proceedings.

 

Can anyone give me some advice please?

 

Many Thanks

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Hi,

 

I was wondering if there is anyone who can help me. I am being taken to court & the claiments are saying they are going to reply on the Rankines VS American Express court case.

 

I have googled & found the court notes, however, what I cant find if whether they have appealed this case, I know they tried to appeal decisions agaisnt other creditors.

 

Also, the claimant in my case are basically saying the preceedent was set that the judge states that failure to comply with a request made under section 78 consumer credit act 74 does not prevent the creditor from commencing proceedings.

 

Can anyone give me some advice please?

 

Many Thanks

 

The wonderful Rankine

 

Could you post a copy of the claim and also your defence

 

Yes - its' true that Rankine says that a failure to comply with s78 CCA does NOT prevent proceedings being issued HOWEVER there are other obligations which require that they produce the documents within the county court proceedings. The other thing to say is that Rankine may well not say what they claim.

 

I really need more detail as to exactly what is happening before I can give you more specific suggestions

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within.html

 

On pages 59/60/61 i have outlined my case there.

 

basically I have i believe a multiple agreement, I never received my Credit Agreement at time of signing or within 7 days. The judge last time has given the other side another chance to get their act together & fined them £80 for wasting my time going to court that day, however, I cant understand why the judge gave them another chance & now why the sols are heavily rellying on the rankine case.

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my defence is basically

I never received an agreement

I had faulty goods under the sale of goods act

I didnt receive a legible copy of the agreement even when the judge ordered them to until the 3rd time, some 7 months later when 1st requested.

There are terms missing from the agreement & it is a s18 agreement being a debtor/creditor/supplier agreement.

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Only that if AMex have securitised your Credit Card Debt they may/may not be the legal owners of the debt dependant on where the securitisation took place. If as this thread suggests the securatisation took place in the USA then they are no longer the owners of the debt and have no standing before the UK court. Also if the Debt was sold to a Venture fund as a SPV (Special purpose Vehicle) the actual ownership could be spread over dozens of defferent companies many of which would not have Consumer Credit licenses which is a big NO NO.

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Only that if AMex have securitised your Credit Card Debt they may/may not be the legal owners of the debt dependant on where the securitisation took place. If as this thread suggests the securatisation took place in the USA then they are no longer the owners of the debt and have no standing before the UK court. Also if the Debt was sold to a Venture fund as a SPV (Special purpose Vehicle) the actual ownership could be spread over dozens of defferent companies many of which would not have Consumer Credit licenses which is a big NO NO.

 

Hi miffedpuppy

 

I am also in battle with Amex and have asked their solicitors if they could confirm if the alleged debt is securitised or not. I did not get any response either way. I could incorporate this in a motion (I am in Scotland by the way), but I have not seen any precedent in relation to securitisation being used to stike out a claim?

 

What would the legal argument be?

 

Regards

 

Monty

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I am being taken to court by HFC personal loans for a sofa via DFS. The sols are using the Rankines VS American Express case to prove they HFC dont need a Credit agreement.

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Well all day I have re-read over & over the judgement papers. I have read the 5 lenders etc, but I cant understand the link the sols are going down. There exact words on there skeleton argument are " the claimant will rely on the case of American Express V Rankine His honour judge simon brown QC Birmingham Civil Justice Centre 16/5/08 is authority for the proposition that failure to comply with a request made under section 78 cca 74 does not prevent the creditor from commencing proceedings."

 

So now I am confused, I dont understand their angle & i have read the court papers online & see no real mention to the American Express case, it covers mainly the Tescos & HFC loans / credit cards.

Any advice for me would be gratefully received!

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With regard to AmEx i would have thought an application under CPR31 for disclosure would get this information, although I am not sure under what part some one would know.

The question of the securitisation would be vital to your case, as stated in the other thread I mentioned it seems that AmEx whole business model was based on securitising the cards and loans debts. If as suspected they have securitised them in the USA the Federal Law on securitsation requires that the whole debt is sold "lock stock and barrell" this means they only act as a collection agent. If this is true it would mean they have no legal standing before a UK court. The question is how to get them to admitt to this?

Perhaps a N244 application to the court under CPR 31.16 for this information to be confirmed or as the author of post# 7 suggested an affidavit from them declaring the debt has not been securitsed.

Without your full knowledge of who actually owns the debt how can you defend it.

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I would very politely suggest that the issue of securitisation is uncharted territory, without any precedence, and not tested by an experienced cagger.

 

Can I suggest that Walshy search the forums for defences about Rankine, I know I have read them, and concentrate on blowing that argument out of the water, without even thinking about testing the very thin ice which is securitisation.

 

My view would be that if they want to rely on Rankine, they are on thin ice - go find those defences.

 

Vdr

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Well all day I have re-read over & over the judgement papers. I have read the 5 lenders etc, but I cant understand the link the sols are going down. There exact words on there skeleton argument are " the claimant will rely on the case of American Express V Rankine His honour judge simon brown QC Birmingham Civil Justice Centre 16/5/08 is authority for the proposition that failure to comply with a request made under section 78 cca 74 does not prevent the creditor from commencing proceedings."

 

That is what Rankine says - HOWEVER it does not say that they don't have to produce a copy/original within the county court claim

So now I am confused, I dont understand their angle & i have read the court papers online & see no real mention to the American Express case, it covers mainly the Tescos & HFC loans / credit cards.

Any advice for me would be gratefully received!

 

The Case is Rankine v Amex and others (tescos etc)

 

Can you post their skeleton argument

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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If you look at paragraph 10 of the Judgment - that I presume is what they are relying on

 

Mishcon de Reya, Solicitors, London : News and Events : Articles : Judgment: Basil Rankine vs American Express Services Europe Limited

 

I have to say that IMO you don't have to worry too much - I'm pretty sure that we can sort out a response.

 

If they have filed a skeleton presumably there is a hearing - when is it and what is it for?

 

You really do need to post the claim and your defence together with any orders and any applications that have been made

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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will do give me 5 to get this done, would it help if i anwered any question you have?

 

 

I need to know exactly whats' happening and then we can sort out an appropriate response - tho' I may not be able to look at it until some time tomorrow afternoon...

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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Comment

The court's strident and blunt approach is to be welcomed. This includes the statement at paragraph 9 that the Consumer Credit Act was introduced to protect the individual unsophisticated in financial affairs in contracts with unscrupulous and sophisticated financial institutions. It was not designed to help individuals in the financial services business make money out of financial institutions through exploiting its undoubted technicalities. In the latter regard, the court did not hesitate to dismiss the Rankines' various arguments in a commensurate tone.

 

 

However, with respect, it is submitted that Mr Justice Simon Brown QC was mistaken when he stated, at paragraph 16:

 

 

'In the Tesco case, where they are seeking enforcement, section 78(6) of the Act does not have the effect contended for by the Rankines. First, the prohibition is against a creditor 'under an agreement'. The agreement was at an end. Therefore there is no reason why there cannot be enforcement. Secondly, the

[2008] GCCR 7701 at 7713

 

word 'enforce' is not descriptive of the commencement of proceedings. Bringing proceedings during a time when the agreement has been brought to an end is only a step taken with a view to enforcement. It is not actually enforcement.'

The grounds for questioning the statement are the following:

 

 

 

 

  • (ii) The Agreements Regulations identify 'creditor' and 'debtor' with reference to their respective descriptions irrespective of the status of the agreement. In other words, the expressions are used to identify the relevant parties under, or to, the agreement.

 

  • (iii) The expression 'enforce an agreement' is utilised in the Act to mean to take steps to assert one's rights under the agreement, regardless of whether the agreement has come into force, is still extant or has been ended. Thus, section 65 of the Act uses the expression 'enforceable' when referring to whether an improperly executed regulated agreement is enforceable against the debtor on an order of the court. Section 127 refers to enforcement orders in the case of infringement. Applying for an order under this section might amount to seeking enforcement of the agreement, as the heading to Part IX also suggests, namely: 'Enforcement of certain regulated agreements and securities'.

Case summary and comments prepared by D Rosenthal.

 

 

 

 

 

 

 

 

this is from the law report off Goode CCLR ,hope it helps

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What is the hearing tomorrow?

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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