AMEX - have issued claim papers-castella

[banker_rhymes_with]

Hello C!

 

I'd forget writing to their solicitors, but demand a physical inspection via an Application to the Court via N244.

 

They want you to keep playing ping pong via letter, so they can brush past your CPR 31.14 Request in Court.

 

Stop them, now, and bring this issue to a head via N244. Then it will be high on the agenda. This will set them up so you can demand to cross-examine any tame witness they pluck out of thin air to Swear Blind the copy is a genuine copy.

 

It may also thwart any plans they may have to try for a Strike Out of your Defence early, via a sneaky attempt using their own N244.

 

That is a favourite Amex trick, so be ready for that. Zhanzhibar had the hassle of dealing with an Amex Strike Out attempt...but won that battle.

 

However, better to stop that nonsense before it starts, so bring the copy issue to a head ASAP, and that is best achieved via your own N244.

 

Cheers,

BRW

Edited August 27, 2009 by banker_rhymes_with
Typo

[castella]

Hi Everyone

we are post AQ STAGE NOW--Amex have now sent(Oct 2009) a further default notice some 22 plus months (post termination in autumn2007) after the original invalid default notice was issued.

Amex have put the same amount to be paid(£232) as in the original default notice of 2007

In this one they have underlined the parts that they should underline (which were not underlined in the original 2007 dn) and have done the bold type where they are supposed to do (again which was not done in the original invalid dn of 2007).

I stated that the underlining and bold capitals were not in the original dn, in my recent defence.so amex have put them in and sent out a default notice dated October 2009 some 22 plus months after their original notice of cancellation letter.

I also stated about insufficient time being allowed for the notice in my defence but amex have disregarded that it would appear.

This further DN of Oct 09 still has no actual date to rectify the default by, and still states 14 calendar days from the date of this notice to rectify the default. which fails to allow for issuing and service by post etc.

Any thoughts on this -I have read surface agent x20 tale of a dodgy dn etc several times.

All help much appreciated

Regards castella

[citizenB]

So they have produced a copy Default Notice which is different to the original, but still havent addressed the main points ie the amount of time to remedy the breach

 

And all this after terminating the account anyway:rolleyes:

[castella]

yes that's correct citizen B.And on top of this,amex have recently written stating that the original agreement has been destroyed.

At post 9 on page 1 on this thread, I have shown the original default & termination notices from 2007. I have also shown the statement of claim, which states "a copy of the agreement" at point 1 in the statement of claim.---So they would appear to be falling on their sword all by themselves--anyone got any thoughts on the next steps to take?

castella

[foolishgirl]

we are post AQ STAGE NOW--Amex have now sent(Oct 2009) a further default notice some 22 plus months (post termination in autumn2007) after the original invalid default notice was issued.

Amex have put the same amount to be paid(£232) as in the original default notice of 2007

In this one they have underlined the parts that they should underline (which were not underlined in the original 2007 dn) and have done the bold type where they are supposed to do (again which was not done in the original invalid dn of 2007).

I stated that the underlining and bold capitals were not in the original dn, in my recent defence.so amex have put them in and sent out a default notice dated October 2009 some 22 plus months after their original notice of cancellation letter.

They never learn do they? Defective DN, followed by termination, followed by trying to shut the stable door (& some 22 months later!!) is just not allowed. They are snookered, tough!

 

I also stated about insufficient time being allowed for the notice in my defence but amex have disregarded that it would appear.

This further DN of Oct 09 still has no actual date to rectify the default by, and still states 14 calendar days from the date of this notice to rectify the default. which fails to allow for issuing and service by post etc.

 

And even on a 2nd attempt when you even tell them what to put, they still can't get it right. Amazing! Can only think all they speak a different English, being our American cousins. Is it really that difficult to employ a lawyer qualified in English law?

 

What do you actually need help on now castella?

Did you submit draft directions with your AQ asking for disclosure of the docs. you want? If you didn't where are you up to on your CPR31.14 request i.e. date sent? any reminder sent? If no draft directions, did you follow up with a N244?

[Alphageek]

I also stated about insufficient time being allowed for the notice in my defence but amex have disregarded that it would appear.

 

Although the form of the wording is prescribed by the regulations, a DJ might treat an un-underlined word as de minimis if everything else was in order.

 

The time limits to be given however are clearly set out in the act and the days to allow for service by 1st and/or 2nd class post are similarly covered by statute.

 

Amex dare not now amend their stupid DNs to give you 14 clear days to remedy as that would be tacitly admitting that all of the DNs they have issued to date are ineffective.

[castella]

help wanted please

can anyone point me in the direction of responses with regards to the Rankine Judgement--especially with regards to Judge Simon Browns point 16 in the judgement--I have received a post termination DN

all help much appreciated regards castella

[foolishgirl]

These are a couple of my bookmarked links castella - hope they're useful to you.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/120173-amex-aic-newman-11.html#post2344740

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/153076-conflicting-information-cca.html

[r&b]

help wanted please

can anyone point me in the direction of responses with regards to the Rankine Judgement--especially with regards to Judge Simon Browns point 16 in the judgement--I have received a post termination DN

all help much appreciated regards castella

 

see if BRWs post #206 here helps at all:

 

AMEX & AIC & Newman - Page 12 - The Consumer Forums

 

a relevant search shud throw up all u need i wud think.

[castella]

Thanks for those FG and r&b, I have already read Blue Thunders site, it was not good the way he was treated by the DDJ.

 

Does anyone have any further references to Rankine & Simon Brown QC's judgement and how best to combat it?

 

All help much appreciated

[citizenB]

Dont know whether this quote will be of interest, posted by shadow in the following link.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2539936.html

 

 

 

 

Professor Sir Roy Goode QC's view on that Judgment:

 

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:

 

(i) In section 189(1) 'creditor' is defined as 'the person providing credit under a consumer credit agreement … and in relation to a prospective consumer credit agreement, includes the prospective creditor'; 'debtor' is defined as 'the individual receiving credit under a consumer credit agreement … and in relation to a prospective consumer credit agreement includes the prospective debtor'.

 

(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'.

 

[castella]

Thanks for that citizen B (T)

I have already made a note of it

Would it not be the time for say PT2537 or surface agent x20 or viscount stair or martin 3030 etc, to collate all thoughts and responses with regards to the Rankine Judgement and then put together valid pointers on how to nullify the Rankine Judgement with regards to the banks and their lawyers and the dca's.

I know that there are cases afoot to contest it from what I have read on CAG in the past.

just a thought for the site team to consider

Regards castella

[citizenB]

Sadly, castella, all of the people you mention have day jobs, families as well.

 

I am sure if any one of us had the time to take on these extra projects, we would willingly do so. The information is contained in threads around the forums.. if you use the search feature then you will find as much as is available.

[castella]

Hi Everyone

Well Amex have now issued an application for a summary judgement, a couple or so days before a hearing before a D.J. to decide directions for the cases.

My scanner is playing up as is my main computer, so I will type up the amex's representatives witness statements on the two seperate claims/& now the summary judgement applications.

I will type these up early next week. All help & thoughts would be appreciated.

There are some interesting statements from the representative on Amex and default notices

have a good weekend everyone

Castella

[foolishgirl]

This seems par for the course with Amex at the moment.

 

Be aware that you need to prepare for a SJ defence in much the same way as you would for a hearing i.e. give it welly & don't let any wily Amex reps. try & turn the SJ application into a mini hearing or you may have to appeal which is a time consuming & lengthy process. However if you can demonstarte to the DJ that have a viable defence then the SJ must be refused & a full hearing scheduled. The court has no option.

[the_shadow]

Hi Everyone

Well Amex have now issued an application for a summary judgement, a couple or so days before a hearing before a D.J. to decide directions for the cases.

My scanner is playing up as is my main computer, so I will type up the amex's representatives witness statements on the two seperate claims/& now the summary judgement applications.

I will type these up early next week. All help & thoughts would be appreciated.

There are some interesting statements from the representative on Amex and default notices

have a good weekend everyone

Castella

I think they did the same to zhanzibar. the judge in that case went with the dodgy default notice.

 

s.

[castella]

Okay here goes with the witness statement from the Amex representatitive on the platinum credit card summary judgement application:-

 

(1) The Claim

As set out in the particulars of claim, this matter relates to a Platinum Credit Card. Unfortunately in Autumn 2007 the Defendant failed to keep up minimum payments. From the attached statements, it is clear that the Defendant failed to make the minimum payments due in July August & September 2007. Accordingly, the claimant served a Default Notice, terminated the Agreement and now sues for the outstanding balance.

 

(2) The Agreement

In or about May 2005 the Claimant sent the Defendant the "Platinum Credit Card Application Form". This consisted of an application form on one side with the terms & conditions of the agreement on the reverse.The document expressly indicated that it was a Credit Agreement regulated by the Consumer Credit Act. The defendant indicated their intention to be bound by the agreement by signing it. The signature is dated 22nd May 2005.

Thereafter, this doument was signed on behalf the claimant on 4th June 2005.

Thus the completed application form, returned to and accepted by the claimant, became the Credit Agreement.

 

(3) Compliance with Setion 60 & 61 of the CCA 1974.

 

1 Under section 61 (1)(a) of the CCA1974 for a regulated credit card agreement to be properly executed there is a need for a document in the prescribed form and containing all the prescribed terms. The prescribed terms are set out in the Consumer Credit (Agreements) Regulations 1983.

 

2 What the Defendant contends these or certain of these are not included, the defendant has failed to partiularize which are missing.

So far as I can ascertain, the Conditions included as part of the Platinum Application Form comply with the 1983 Regulations. For the avoidance of doubt, as this agreement was sent to the Defendant before the coming into force of the Consumer Credit (Agreements) (Amendment) Regulations but executed after these Regulations came into force, under Section 18 of the 2004 Regulations it is governed by transitional provisions and the prescribed terms are those set out in the 1983 Regulations.

 

3 The Claimant complied with Section 83 of the Act by sending a copy of the Agreement to the Claimant along with the credit card (Section 63 (4))

(should have stated to the defendant not to the claimant here).

 

4 Under Clause 16(1) of the Agreement, the Claimant was able to vary the terms of the agreement by giving the Defendant notice.

 

 

(4) The Defendants Arguement appears to be as follows:-

 

(a) The agreement does not contain the prescribed terms

 

(b) The Conditions were not within the "four corners of the agreement"

 

© The document has the wrong heading

 

(d) The agreement is a pre-contractual document

 

(e) Transaction date from before the Agreement was signed by the Claimant.

 

(f) Provisions under Section 127 (4) regarding cancellation rights were not complied with.

 

(g) The Defendant contends the Default Notice is invalid.

 

(h) The Defenant contends that service of an invalid Default Notie prevents the Claimant ever enforcing the agreement.

 

 

(5) I will deal with these in turn:

 

(a) As set out above, so far as I can ascertain, the Conditions do indeed include the prescribed terms. The Defendant has failed to identify those terms contended to have been omitted.

 

(b) As set out above, the conditions were on the back of the document the Defendant signed. There is no requirement for prescribed terms of a regulated credit card agreement to all appear on the same side of a document or that such a document can only be on one page long: multi page agreements are clearly envisaged as Paragraph 1 of Shedule 1 refers to the "first page" of the agreement.

 

© It appears to me that the Defendant has erroneously referred to the requirements for agreements dated after 31st May 2005 under the 2004 Regulations. As set out above, this agreement is governed by the transitional arrangements and the requirements of the 1983 Regulations continue to apply. Thus the correct heading is indeed "Credit Agreement regulated by the Consumer Credit Act 1974".

 

(d) As set out above, the application form became the Credit Agreement once it had been signed by the Defendant and accepted by the Claimant. As I understand it, this is a perfectly usual way for credit card and store card agreements to come into force.

It is necessarily the case that the document sent to the Defendant for signing is pre-contractual as the defendants signing it is an essential part of the coming into force of the agreement. The document specifically informed the Defendant that by signing the Defendant was accepting to be legally bound by its terms.

 

(e) As set out above, the claimant has complied with section 63 by delivering a copy of the agreement along with the credit card.

 

(f) The Defendant refers to Section 127 (4) 0f the CCA in the Defence.

This is of no application in this case, as this agreement is not a "cancellable agreement" within section 67 of the Act, as there were no antecedant negotiations including oral representations by a negotiator on the claimants behalf.

I refer to the definition of "cancellation agreement" in Section 129 (1) of the Act.

 

(g) I understand and the Defendant accepts that the date for compliance in the Default Notice (14 days from the date of the Notice) does not strictly comply with Section 88(2) of the CCA which requires that the date to be not less than 14 days after the date of service of the notice.

 

However, this breach is de minimis and does not render the Notice invalid. I understand in Woodchester Services Ltd V Swain &Co [1999] 1 WLR 263, CA at 268B the Court of Appeal held that a de minimis error in a Default Notice might be overlooked, and the principle that de minimis errors do not invalidate Default Notices was recently applied in Rankine v Halifax Plc[2009] CCLR3.

 

I note that a Default Notice sent by post which is never received is validly served. Here the Defendant did receive the Default Notice and was well aware what was required to comply. The Defendant failed to make the payment required at all. No\prejudice has been caused to the Defendant as a result.

It is submitted that this slight error in the date for compliance is de minimis.

 

Further the Agreement entitles the Claimant (and the Defendant) to end the agreement without a requirement for breach on part of the debtor. In such a case there is no need to comply with section 87 of the Act, as this only applies to termination by reason of breach.

 

In any event the Claimant has since served a second Default Notice on the Defendant dated 7th October 2009 which is attached. This expressly expires two weeks after the date of service. The Defendant has failed to make the payment required in this Notice.

 

The Defendant appears to be arguing both that the original Default Notice was invalid and the Agreement has been Terminated nonetheless.

It is submitted that this is incoherant pursuant to Section87 of the CCA the Default Notice is a requirement before the Claimant can become entitled to Terminate the Agreement by reason of the Defendants Default.

It is not correct to say that the Claimant has breached the contract: it is the Defendant who breached the contract by failing to make the minimum payments as set out above.

The Defendant cannot rely on their own failure to meet the terms of the Agreement as a reason not to pay the Claimant the sums due under the Agreement.

 

It is submitted that the service of a Default Notice under Section87 is a procedural requirement rather an essential ingredient of the cause of action. I refer the Court to the case of Rankine (above) and in particular to paragraph 16.

 

(6) Conclusion.

 

The Defendant has failed to adduce a Defence that has real prospects of success and there is no other compelling reason why this case should be disposed of at trial.

I therefore respectfully request the Honourable Court enter Summary Judgement for the claimant pursuant to CPR Part 24.

 

 

So thats the Witness Statement from Amex to the Court as sent with their application for Summary Judgement.

 

Amex have forgot to mention that they have actually destroyed the Actual Agreement, as confirmed in writing from Amex's solicitors.

 

Amex's post Termination Default Notice dated 7th October 2009 states:

"To remedy this breach the payment due on your account of !!!! must be paid within fourteen calendar days from the date of service of this Default Notice". (The amount requested is the same amount as requested in the initial Default Notice of 17th September 2007 as shown on page 1 @ point 9 of this thread, and which was Terminated by notice of cancellation dated 5th October 2007).

Amex have also failed to mention that they have changed the wording in the Default Notice from "Before the stated date" in the September 2007 Default Notice to "Before the date shown" in the post termination notice of October 2009

Of course you will all have noticed that no actual "date shown" is stipulated as the October 2009 post termination Default Notice states "fourteen calendar days from the date of service of this default notice".

 

When the platinum card arrived no terms or card carrier copy was included, only the card and a number to activate it arrived.

The card was used on the 1st June and Amex signed and accepted the application dated the 4th June 2005.

So the card was used before Amex accepted the application and before the application form was signed and before the Agreement was executed (if it ever was).

No Documents other than the application form (and the platinum card) were received or sent, until October 2005 when a notification from Amex arrived stating changes to terms and conditions. Along with this letter and notification of changes was a pamphlet of what must have been the existing terms & conditions. These differ very significantly to the terms and conditions as put forward by Amex as purporting to be the Terms and Conditions at the time of the application/acceptance of & execution of the actual agreement.

 

we can never be sure what was what, as Amex have declared, stating in writing that the actual agreement has been destroyed.

Why was it destroyed, you have to wonder for what possible reason.

So anything supplied or commented on by representatives of Amex is presumably hearsay evidence, as the original has been destroyed.

 

All help & thoughts appreciated

 

I will put the second summary judgement application & that witness statement from Amex with reference to the gold card on the site in due course.

I have noted the Zhanzibar & Shakespeare62 & surface agent x20 'tale of' sites. But I would appreciate comments on the Agreement and the Default Notice & the Termination Notice & the issuing of the post termination New OCT 2009 Default Notice as to what has been specifically stated within the witness statement by Amex's representative please.

 

Thanks

Castella

[42man]

They can't issue a 'post-termination' default notice as it would be complete fiction as from the date they terminated you had no agreement with them !!! - http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

Useful link here - http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html