amex cca

[CONFUSED45]

Hi

I sent cca request, and this week received application form back with t/c's on reverse.

 

I think this is a micro-fische copy as there is a line across the page and the front and back copies do not match up.

So, mt first question, would this stand up in court as it is not the original agreement but a copy and secondly I think it could be a paste and copy job.

 

I would appreciate any bodies comments and what should I do.

 

http://i863.photobucket.com/albums/ab199/confused44/img024.jpg

http://i863.photobucket.com/albums/ab199/confused44/img025.jpg

Edited July 12, 2009 by CONFUSED45
sorry didn't paste application on

[maroondevo52]

Hi,

 

I'll move this thread to the Amex Forum, have a look at some of the threads in there, maybe give you some pointers.

 

Regards.

 

Scott.

[Monty2007]

Hi

I sent cca request, and this week received application form back with t/c's on reverse.

 

I think this is a micro-fische copy as there is a line across the page and the front and back copies do not match up.

So, mt first question, would this stand up in court as it is not the original agreement but a copy and secondly I think it could be a paste and copy job.

 

I would appreciate any bodies comments and what should I do.

 

http://i863.photobucket.com/albums/ab199/confused44/img024.jpg

http://i863.photobucket.com/albums/ab199/confused44/img025.jpg

 

From the first page it looks to be a 1998 Amex Application but if these T&C's are on the reverse it looks to be enforceable with the caveat that they are difficult to read.

Many of the Applications around this time were scanned in and they only copied the front page, hence it is strange that they seem to have both in your case.

It may well be enforceable, others will comment.

Have you been issued with a default notice?

Edited July 12, 2009 by Monty2007

[sunflower99]

it is a very old agreement and though cant be 100% sure and i have not had any dealings with Amex ccas but a lot of banks did shred their agreements from several years ago so it may be a microfilch copy!is there anything on front application form to link front to back? A lot alleged of agreements are appearing from various banks now implying that the front application forms have reverses ;)ive got an MBNA and crapital one both impying but refusuing to confirm that the second page they conviently slip in with the front page are actually from same document and i dont belive they are from the same document in my ones and a of people with MBNA and crapital one agreements with similar responses agree with me! Especially as these reverse pages mysteriously appearing now after many people started disputing their alleged CCAs!

[sunflower99]

i cant be 100% sure about your alleged cca and no one can be sure unless they are forced to produce original if the matter ever goes to court.but i think firstly there is a strong possibility it is a microfilch copy !and it is on the say so of the bank what they iimply is on back;)i have seen on a lot of threads that a lot of earlier agreement were shredded by banks and they just copied everything in .If they have done this they will have problems if they initiate any sort of legal action as they can be compelled to bring original to court and without the orginal it should not be legally enforceable if you get a fair judge and can be defended and strongly disputed if they relying on a microfilch copy.Also if they do have original signed application form the seperate page with prescribed ts an cs for a pre 2007 agreement should be in four corners of the doucument either on reverse or physically attached to application forn or possibly if a seperate page clearly linked as being part of the same documnet by haveing clear links on the front referring to precribed terms on another page and saying that the link must be clearly linked to prescribed terms not the other general terms which can be found on a seperate documentPrescribed terms must be on same document and can not be found anywhere else if they are not it is not legally enforceable! However this is a big if!i f they do retain an original and it does have that page on reverse it would probably be enforceable!

[sunflower99]

i find it a bit difficult to read the document you posted ! Is there any reference on front to any prescribed terms? You could try them with this letter amended to suit which i sent MBNA in connection with my alleged agreement to ask them to confirm wheteher the second page is actually on reverse of front or not:D and i even offered to go down to their offices for an informal appointment to inspect it:D MBna ignored it which told me a lot and even though they did not reply i have left a paper trail to show that i made every reasonable effort to view it to resolve matter and save court time and costs on both sides! and will be pointing out to DJ that they declined to reply!

[sunflower99]

Account In Dispute

Account No ----

Dear Sir/Madam

I am in receipt of your letter of ------ I am writing to you to state that unfortunatly the documents you enclosed with letter dated -------still has not produced any evidence that the Agreement is enforceable for the following reasons.

1.One of the documents you sent is an application form.Neither of the documents carry the correct title in the prescribed form giving the nature of the agreement as laid down by schedule 1 of the Consumer Credit (Agreements) regulations 1983.if they are considered to be be suitable as becoming Agreements once properly executed.The missing title being- Credit Card Agreement Regulated by the Consumer Credit Act 1974.

2.Agreements must contain the prescribed terms within the four corners and furthermore no where on the front is there any reference to the prescribed terms and conditions which are necessary to make this agreement enforceable.

3.There is no proof that the second page is from the same agreement .An agreement that is not properly executed and was signed before 2007 is not enforceable unless it has the debtors signature and the prescribed terms in the same document.Nowhere within regulations does it state that part of the agreement can be presented on a separate document headed terms and conditionsThe prescribed terms must be within the four corners of the agreement and as you will be aware there is a House of Lords' authority on this: Lord Justice Tuckey in the case of Wilson v Hurstanger 2007 EWCA civ 299.

.The courts powers to enforce an agreement that is not properly executed and that was entered into before 2007 are limited by section 127(3) of the Consumer Credit Act 1974.This section says that an agreement that is not properly executed can only be enforced if it consists of a single document .

a) signed by the debtor, and

b)has the prescribed terms

You are reminded that should you choose litigation as your course of action you will be required to provide the original dodcument for the Court.

 

4.I also am unable to read the information on one page of the Application form due to the utter illegibility of the copy. This in itself contravenes the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).

Regulation 2 states:

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

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 compliant 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 charges to the account.

You may not pass the account to a third party.

You may not register any information in respect of the account with any Credit Reference Agency.

You may not issue a default notice in respect of the account.

 

If however you do still retain a copy of the original signed Agreement with all of the prescribed terms as laid down in the regulations, then I request to be allowed to view this at your offices.

So in reference to this copy of the credit agreement in which you claim it is compliant under section 78 of the consumer credit act 1974. (As I am sure you are aware, your statement is now binding under the same act-) I have concerns as to the authenticity in relation of the document which was sent with your letter dated ------------

One of my main concerns is specifically related to the front and back parts of the agreement in question. Whilst I do not disagree these two parts may exist as separate documents my concern is that the front part of the agreement refers to a section of the back that does not exist. It is therefore reasonable under these circumstances to assume that the single document (both front and back parts) sent as the agreement is two separate documents photocopied onto 1 sheet of paper.

As the document supplied by MBNA is an important legal document I would be grateful if you could confirm that the front and back is a single document and reflects the original exactly on both sides or two separate documents photocopied onto on sheet of paper, for example to save on paper costs or postage costs which would not be considered unreasonable.

However if you still maintain that the second page with terms and conditions is indeed on back of that signed application form so they are both on same page and that you still believe you have a correctly executed enforceable agreementI think the best way way forward to resolve this matter to both our satisfaction would be for you to contact me to arrange a convienent time for me to come over to your office to view the original agreement. i would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

yours Faithfully

[sunflower99]

Dear Sirs,

Account In Dispute

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

[CONFUSED45]

From the first page it looks to be a 1998 Amex Application but if these T&C's are on the reverse it looks to be enforceable with the caveat that they are difficult to read.

Many of the Applications around this time were scanned in and they only copied the front page, hence it is strange that they seem to have both in your case.

It may well be enforceable, others will comment.

Have you been issued with a default notice?

 

Hi

no I have not been sent a default notice yet!!!

 

The thing that is puzzling if it was a photo copy of the original agreement and the t/c were on the back shouldn'nt the photocopy match up??

[sunflower99]

ACCOUNT NO:--------

ACCOUNT IN DISPUTE

 

I am in receipt of your letter dated ------In respect of documents you have supplied to me in your letter dated, ----, it would appear that you are of the belief that you have discharged your obligations under the Consumer Credit Act 1974 in particular section 78(1). This however, is not so, You have provided me with a copy of an application form and I feel it is my duty to draw your attention to the following :

 

 

1: Had you wished for an APPLICATION FORM to become a properly executed Agreement, you would have ensured that the documents sent to me for signature would have carried the correct title in the prescribed form as laid down in schedule 1 of the Consumer Credit (Agreements) Regulations 1983. I.e.

 

Credit Card Agreement Regulated by the Consumer Credit Act 1974

 

2: The Consumer Credit (Agreements) Regulations 1983 (S1 1983/1553) set out the form and content of agreements. For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the S1 1983/1553; without the prescribed terms the documents you have supplied do not conform to section 60(1)1974 and therefore cannot be properly executed as described in section 61(1) Consumer Credit Act 1974.

 

3: Neither of the documents supplied carry any reference to these terms. I wish to remind you that the absence of these terms will render a document unenforceable in court and I repeat, these terms MUST be contained within the agreement and NOT in a separate document headed terms and conditions or words to that effect.

 

4: There are no references on the document purporting to be the front page to indicate that the second document is linked in any way. This page also, is absent of any prescribed terms which would be necessary for the document to become enforceable.

 

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 compliant 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 charges to the account.

You may not pass the account to a third party.

You may not register any information in respect of the account with any Credit Reference Agency.

You may not issue a default notice in respect of the account.

If however you do still retain a copy of the original signed Agreement with all of the prescribed terms as laid down in the regulations, then I request to be allowed to view this at your offices.

 

You are reminded that should you choose litigation as your course of action, you will be required to provide the original document for the Court.

 

I reserve the right to report your actions to any such regulatory bodies as I see fit, including but not limited to Trading Standards, the Office of Fair Trading, the Information Commissioner’s Office, the Financial Ombudsman and my MP.

respectfully request you review this matter in light of my comments above and I request that you supply me with the required information or alternatively confirm the account is closed and the debt written off with a zero.

 

I look forward to your reply within 14 days.

 

Yours faithfully

[Monty2007]

Looking at the first image again, the scan has also captured the reverse side and it would seem to match the second (albeit almost illegible) second page.

 

This is therefore a tricky one.

 

Can you elaborate on where you are with this? Are you in default, do you have any charges, and is it with a DCA or has any legal action commenced?

 

Personally I feel that they have complied with your S78(1) request. I would get more view on this. I have been fighting Amex on two cards for the past 4 years and in litigation as we speak in the Scottish Courts.

 

Have a look at the other Amex threads, this is certainly the first one I have seen from 1998 with both sides of what seems to be a combined Application/Agreement.

 

Did the copy they sent you contain your signature?

[sunflower99]

The banks seem to vary how quick they issue default notices ,Crapital one and Barclayshark sent me deffault notices very quickly after i stopped paying them ! MBNA took about six months!

[Monty2007]

Hi

no I have not been sent a default notice yet!!!

 

The thing that is puzzling if it was a photo copy of the original agreement and the t/c were on the back shouldn'nt the photocopy match up??

 

I think it does match up if you look at the way in which they have scanned the front page since it has also captured some of the back page which seems to contain the T&C's. It is impossible to see if these are the correct prescribed terms. It may be worth searching for the same Application/Agreement from this time.

[CONFUSED45]

Thanks for the letter sunflower

[CONFUSED45]

I think it does match up if you look at the way in which they have scanned the front page since it has also captured some of the back page which seems to contain the T&C's. It is impossible to see if these are the correct prescribed terms. It may be worth searching for the same Application/Agreement from this time.

 

I am concerned that it is not headed terms and conditions and is not referred too on the first page on document, as being over the page.

[sunflower99]

Monty is right you can see a faint image of ts snd cs they are impying is on back of application form and i am no expert on copying documents and what can and cant be done.Would it be possible for a bank to photcopy any sheeet of ts and cs on one side of paper and then photocopy the application form onto front of sheeet of paper which had these any old ts and cs phto copied on back?

Edited July 12, 2009 by sunflower99

[sunflower99]

Thanks for the letter sunflower

Thats ok confused! Glad to be of help! Personally id be tempted to write them one of these letter amended to suit? but as Monty says a dufficult one!

[Monty2007]

I am concerned that it is not headed terms and conditions and is not referred too on the first page on document, as being over the page.

 

You are correct. I would be cautious though, Amex will fight this one and have had agreements enforced which are similar, and indeed some worse than yours (in terms of eligibility and prescribed terms).

Amex will take it all the way; they seem to have a policy in this respect, irrespective of their chances of winning. Just be aware of this. They have lost cases and worth you looking through the ones on the CAG/Amex thread to understand the process.

Are you in default, they typically mess up on their Default Notices so worth posting this up if you have been served one.

[CONFUSED45]

Monty is right you can see a faint image of ts snd cs they are impying is on back of application form and i am no expert on copying documents and what can and cant be done.Would it be possible for a bank to photcopy any sheeet of ts and cs on one side of paper and then photocopy the application form onto front of sheeet of paper which had these any old ts and cs phto copied on back?

 

That's what confusing me, the application form is on the bottom of the first page and terms and conditions are on the top of the reverse page of the a4. should they matchup, especially if I was to be sending them back in the post. Usually the additional t/c's I've been sent are on separate bifold pages from amex.

[sunflower99]

Dear Miss Renshaw

 

You have recently sent me further documents relation to my Subject Access Request, originally sent by me on the xxx xxx 200x.

 

I would like to address the Credit Agreement you have sent me. I have several major concerns about it’s authenticity, and as such I would like you to confirm in writing that the double sided document you have sent is indeed a copy of both original sides of the original executed Agreement.

 

If you still state this is the original agreement, please be aware I will require sight of it so that I can be assured it is authentic. I will be happy to travel to your offices in order to do this so that you are not inconvenienced. If you refuse this I will be requiring a full written explanation of your reasoning behind declining this reasonable request.

 

Once you have either confirmed whether or not it is a copy of both sides of the original, I will write again with details of my concerns in order for you to address them and give me your explanations, and if applicable to arrange a date that I can view the document.

 

Please do not attempt to answer this letter with a template letter, as it requires a personal response.

 

Please be aware any response you give will be held on record and will be used in any action I choose to take.

 

Please ensure all the information I have requested is forwarded as a matter of urgency, and certainly not more than 21 days from date of receipt of this Recorded Delivery letter.

 

Yours sincerely

 

 

Your biggest fans xx

[sunflower99]

Just another letter from Lexis which she posted to crapital one for a similar issues with her alleged cca! so you got a choice if you want to challenge alleged cca by letter! sorry i cant be more help but i have not had expereince of Amex alleged ccas.

[sunflower99]

That's what confusing me, the application form is on the bottom of the first page and terms and conditions are on the top of the reverse page of the a4. should they matchup, especially if I was to be sending them back in the post. Usually the additional t/c's I've been sent are on separate bifold pages from amex.

Good point and what i thought too!

[CONFUSED45]

Thank You sunflower will post tomorrow and keep you posted of the out come

 

regards

confused 45

[CONFUSED45]

Good point and what i thought too!

 

I'm so glad it's not just me that's thinking like this!!

[sunflower99]

Hi Confused!

Glad i was able to help a bit ! if you are sending one of those letters you are makeing them realise you not going to roll over and let them bully you and that you know your rights ,