Amex - Applications - Defaults and Statutory Demands

[onandonandon]

First post from me so sorry if I have missed anything, though firstly what a fantastic site - just knowing that there are others in the same boat and hearing what they have to say has been the biggest help- so thank you to all the posters on amex and the other cards.

 

I was wondering if those in the know could shed some light on my situation and the documents from amex....

 

Long story short, I was unable to send money to amex on both a credit card and charge card which had flex select attached to it - which basically shunted off any spend over £200 on to credit., this went through all the calls from them and rma, of which none ended in a conversation, but which did end up with a statutory demand, which is what got me going.

 

I have since applied to have this set aside, based on advice her on the dispute of the debt, its calculation and the default validity.

 

Following that I CCA'd them and received only 1 page application forms for each, both with latterly attached Ts and Cs which had nothing to do with the application forms and which made no reference to them. The CCA requests were addressed to both their solicitors and also to Amex, though the reply with the below actually came from NCO

 

Attached here

Charge Card

Credit Card

And nothing for the Flex Select

 

On these I have only received the one default here Which relates to the Flex Select alone. Here.

 

A month later I received what I think was a cancellation for both the charge and credit accounts here

 

(Though interestingly enough a day later I received a default sums notice adding on £200 ish on the credit card)

 

And a few days after the cancellation letter this was confirmed by RMA in two separate letters asking for payment on each as the accounts had been cancelled by Amex

 

So I guess my questions are....

Are the applications enforceable?

Is the lack of paperwork on the Flex Select significant?

Does the flex select - all purchases on the charge card over £200 being put on credit - move the charge card to a credit card?

Are Amex covered by the CCA?

Is the default valid

Does the cancellation cover the charge and credit cards?

If the letters from RMA are to be believed and both are cancelled where do I stand in terms of what Amex suggest I owe them?

 

Any thoughts on this, ideas, suggestions gratefully received

Thanks in advance

(PS have also posted this under Amex too)

Edited July 27, 2009 by onandonandon

[cerberusalert]

The CCA is unenforceable, the DN is defective on several counts = Unlawful rescission of the agreement. In a word they're 'stuffed'.

[onandonandon]

Thanks C, that sounds heartening. For my own knowledge can you point out where the Applications and defaults fall down. And also would welcome your opinion on the cancellation letter.

 

Many thanks again

[cerberusalert]

The DN should state a specific date to remedy by anyway but they've stated that you have to remedy 14 days from the date of the notice which is insufficient because they haven't allowed for service of the notice.

 

Because they've terminated they will only be able to claim for the arrears on the a/c not the remaining balance.

 

The CCA is unenforceable because it doesn't contain the prescribed terms within the four corners of the document.

[Josie8]

The DN should state a specific date to remedy by anyway but they've stated that you have to remedy 14 days from the date of the notice which is insufficient because they haven't allowed for service of the notice.

 

Because they've terminated they will only be able to claim for the arrears on the a/c not the remaining balance.

 

The CCA is unenforceable because it doesn't contain the prescribed terms within the four corners of the document.

 

 

Agreed:)

[onandonandon]

Thanks for that. I just re-read the default and I see exactly what you mean.

 

So I should right to them saying - that I do not acknowledge either the applications as binding for the lack of terms within the documents and that default letter whilst received has not been served because of the lack of date.

 

And now that they have taken the decision to cancel at best their expectation should be limited to arrears only and that any info passed to referencing agencies was without basis / justification and as such should be removed.

 

In calculating that figure, I can see the £59 for the flex, I can find out the arrears on the credit card, but which figure should I look at for the charge card?

 

Thanks again

[Josie8]

I would not advise writing ' telling creditor they have cocked up default notice as they may try reissuing a new one. Reac the thread a dodgy default notice

[onandonandon]

Thanks J - I took a look at that - if I can't alert them to the bad DN how do I progress it?

 

The DN that I got refers only to the flex select part of the charge card, nothing on the credit card, or the charge card. And the cancellation letter appears to cancel both the "account" the charge card account which is covered over and also says that is cancelling my credit card card account, and the letter appears not to reference the default notice - just a blanket cancellation.

 

Also the cancellation of both was confirmed in two separate letters (one for each) from the DCA - RMA saying the account had been cancelled by Amex and passed to them for collection.

 

So on that basis, if the accounts are cancelled by them, then in order to re-issue a DN they would need to reinstate the account, which under the circumstances I don't think I would be agreeable to.

 

Surely somewhere along the line it needs to be laid out for them saying that the they have ended the relationship on all accounts, that no valid dn's have be served?

 

Cheers

[cerberusalert]

Send them this;

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(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 unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I refer to page 5 of the guidance which states;

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment.

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

Print name do not sign

[onandonandon]

Hi CA thanks for that great letter.

 

Am I correct in assuming that the flex part of the charge card thing where anything over £200 on the charge card was pushed to flex select credit pushes the charge card into being something which ought to be covered by the CCA.

 

Also is it significant that the only DN that they have sent relates only to the flex part to which no agreement was sent to the original CCA request? And in your opinion have I read their cancellation correctly in that it cancels both the charge and credit card accounts?

 

Thanks so much again (especially as its a Sunday too)

[cerberusalert]

I would have thought that as they are part of the same agreement if they cancel one it would cancel them all otherwise it would push the a/c into the realms of 'multiple agreements'.

 

I don't have sufficient experience with these types of a/cs so can really only pass an opinion, but no doubt someone else will be able to give a more knowledgeable answer.

[Josie8]

A creditor can issue one default notice for all accounts.

[onandonandon]

Ah.. so I guess that as I've only received the one, and they have cancelled the accounts then the opportunity to offer other DN's has gone.And bar the arrears they can't ask for any other money either

 

Thanks