Jump to content


uptoeyeballs

uptoeyeballs v American Express credit card CCA

style="text-align:center;"> Please note that this topic has not had any new posts for the last 3177 days.

If you are trying to post a different story then you should start your own new thread. Posting on this thread is likely to mean that you won't get the help and advice that you need.

If you are trying to post information which is relevant to the story in this thread then please flag it up to the site team and they will allow you to post.

Thank you

Recommended Posts

Hi BRW!

 

I cannot find a DN and didn't get one with my SAR and as we all know it is likely to be invalid. I know there has been some sucesses of the back of this.

 

My original thoughts were to go for the set aside as you'll see earlier in the thread. I also had in the back of my mind s142 and PW suggested that too.

 

Why I like the s142 approach is it kicks the foundations out rather than trying unravel what has happened and also leaves much less room for challenge in that everything is there in fact.

 

uteb.


Share this post


Link to post
Share on other sites
Hi BRW!

 

I cannot find a DN and didn't get one with my SAR and as we all know it is likely to be invalid. I know there has been some sucesses of the back of this.

 

My original thoughts were to go for the set aside as you'll see earlier in the thread. I also had in the back of my mind s142 and PW suggested that too.

 

Why I like the s142 approach is it kicks the foundations out rather than trying unravel what has happened and also leaves much less room for challenge in that everything is there in fact.

 

uteb.

You should have had a screen dump or printout with your SAR. This should show if a DN was ever isssued.

Share this post


Link to post
Share on other sites
You should have had a screen dump or printout with your SAR. This should show if a DN was ever isssued.

 

Cheers vint!

 

No screen print, but there is a log that reveals some useful dates...

 

9/2/05 Default, expires 21/1 :eek:

22/2/05 A/c cancelled :eek:

 

uteb


Share this post


Link to post
Share on other sites

Me again!

 

It seems to me I can go for the s142 as planned.

 

Should this not get me where I want I still have the DN issue to go for a set aside later.

 

Anyone think this is a bad idea?

 

Thanks!

 

uteb.


Share this post


Link to post
Share on other sites

Ok, back from Post Office, Postal order in hand.

 

Revised N244:

1. The Defendant requests that the court determine the rights of the parties pursuant to section 142 Consumer Credit Act 1974.

2. The Claimant has provided the Defendant with a document purporting to be a Regulated Agreement for the purposes of section 8 of the Consumer Credit Act 1974.

3. The Defendant contends that the signature document that the Claimant purports to be an executed agreement does not meet the requirements of the Consumer Credit Act 1974.


Share this post


Link to post
Share on other sites

...and the WS.....

 

 

On behalf of: Defendant

Witness: UTEB

Number: 1st

Exhibits: UTEB-1

Date: 13th February 2010

In the [xxxxxxxxx] County Court

Claim number [xxxxxxxxx]

 

 

BETWEEN:

 

 

American Express Services Europe Limited

Claimant

and

 

 

uteb

Defendant

 

 

 

 

____________________________________________

WITNESS STATEMENT

OF

UTEB

____________________________________________

I, UTEB, of xxxx, xxx, xxx, Postcode, will state as follows:

 

1. I am a self-employed Cage Fighter and freelance banker assassin (must remember to change this bit, although it makes my smile every time I read it!). I am also the Defendant in these proceedings and am a Litigant in Person.

 

2. I make this Witness Statement in support of my application to the court to determine the rights of the parties pursuant to s.142 Consumer Credit Act 1974.

 

3. The matters referred to in this Witness Statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this Witness Statement are not within my own knowledge, I have stated the source of my information.

 

4. There is now produced and shown to me a bundle of documents marked "UTEB-1". The exhibit UTEB-1 contains a number of documents to which I will refer in detail by reference to their related Document Number that can be found at the bottom right of each page.

 

The agreement

 

5. It is accepted that I applied for a credit card with American Express Europe Limited and that an application form was completed.

 

 

6. It is not accepted that the agreement was reduced to writing and it is not admitted that a valid agreement containing all of the prescribed terms required by the Consumer Credit Act 1974 exists.

 

7. The signature document exhibit UTEB-1, Document 1 and the terms and conditions exhibit UTEB-1, Document 2 have been supplied to the Defendant in response to a s.78 Consumer Credit Act 1974 request made on [xxxxxxxx] and a Subject Access Request made on the [xxxxxxxx]. It is noted that a request under s.78 did not require the Claimant to provide a copy of the signature document, but they chose to do so.

 

8. The Claimant in their letter of [xxxxxxxx] exhibit UTEB-1, Document 3 state that they consider of exhibit UTEB-1 , Documents Numbers 1 and 2 make up the agreement.

 

 

9. Further in the same letter the Claimant asserts that the signature document was sent out in duplicate which the Defendant avers is untrue as the signature document was in fact direct marketing material with the Claimants address on the reverse such that the document could be folded and returned.

 

10. Any such agreement would be a Regulated Agreement for the purposes of section 8 of the Consumer Credit Act 1974.

 

 

Requirements of the Consumer Credit Act

 

11. s.61 of the Consumer Credit Act 1974 provides that:

̋.....

(1) A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under s.60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the

creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms

..... "

 

12. The prescribed terms for a running-account credit agreement are:

- A term stating the credit limit or the manner in which it will be determined or that there is no credit limit

- A term stating the rate of any interest on the credit to be provided under the agreement

- A term stating how the debtor is to discharge his obligations under the agreement to make the repayments,

which may be expressed by reference to a combination of any of the following--

(a) number of repayments;

(b) amount of repayments;

© frequency and timing of repayments;

(d) dates of repayments;

(e) the manner in which any of the above may be determined;

or in any other way, and any power of the creditor to vary what is payable.

 

13. The Defendant contends that the signature document that the Claimant purports to be an executed agreement:

- does not contain the prescribed terms. These terms must be contained within the signature document and cannot be contained within a separate document. [ Lord Justice Tuckey in the case of Wilson v Hurstanger 2007 EWCA civ 299.]

- it does not embody all the terms of the agreement in that exhibit UTEB-1, Document 1 is clearly not part of or connected with exhibit UTEB-1, Document 2.

- it has not been executed as it has not been signed by the Claimant

 

Rights of the parties

 

14. As it is clear that the agreement does not meet the requirements of s.61 the Defendant respectfully requests that the court determine the rights of the parties pursuant to s.142 Consumer Credit Act 1974.

 

 

STATEMENT OF TRUTH

 

 

I believe that the facts stated in this Witness Statement are true.

 

 

Signed ________________________

 

 

UTEB

 

Dated ________________________

 


Share this post


Link to post
Share on other sites

Hello UTEB!

 

Just some minor nit picks, to help:

 

I, UTEB, of xxxx, xxx, xxx, Postcode, will state as follows:

 

(1.) I am a self-employed Cage Fighter and freelance banker assassin (must remember to change this bit, although it makes my smile every time I read it!). I am also the Defendant in these proceedings and am a Litigant in Person.

 

(2.) I make this Witness Statement in support of my application to the court to determine the rights of the parties pursuant to s.142 Consumer Credit Act 1974.

 

(3.) The matters referred to in this Witness Statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this Witness Statement are not within my own knowledge, I have stated the source of my information.

 

(4.) There is now produced and shown to me a bundle of documents marked "UTEB-1". The exhibit UTEB-1 contains a number of documents to which I will refer in detail by reference to their related Document Number that can be found at the bottom right of each page.

 

The Agreement

 

(5.) It is accepted that I applied for a credit card with American Express Europe Limited and that an application form was completed.

 

(6.) It is not accepted that the Agreement was reduced to writing and it is not admitted that a valid Agreement containing all of the prescribed terms required by s61(1)(a) of The Consumer Credit Act 1974 exists, or has ever existed.

 

(7.) The signature document (exhibit UTEB-1, Document 1) and the terms and conditions (exhibit UTEB-1, Document 2) have been supplied to the Defendant in response to a s.78 Consumer Credit Act 1974 request made on [xxxxxxxx] and a Subject Access Request made on the [xxxxxxxx]. It is noted that a request under s.78 did not require the Claimant to provide a copy of the signature document, but they chose to do so by returning a copy of my Application Form when I was, at that time, expecting to see a copy of a properly executed Regulated Credit Card Agreement.

 

(8.) The Claimant in their letter of [xxxxxxxx] (exhibit UTEB-1, Document 3) stated that they considered that Documents Numbers 1 and 2 of exhibit UTEB-1 made up the Agreement, namely a copy of an Application Form, and a copy of some Terms taken from another document.

 

(9.) Further, in the same letter the Claimant asserts that the signature document was sent out in duplicate which the Defendant avers is untrue. This is because the Defendant recalls that the Application Form signature document was in fact wholly unsolicited bulk direct marketing material with the Claimant's address on the reverse of the Application Form's signature page, such that the flimsy bulk mailing document could be folded and returned. The Defendant assumed, at the time, that the Application Form would be considered and, if the application details were satisfactory, a Regulated Agreement would then be sent out for signature.

 

(10.) Any such Agreement would be a Regulated Agreement for the purposes of section 8 of the Consumer Credit Act 1974.

 

Requirements of the Consumer Credit Act 1974

 

(11.) s.61 of the Consumer Credit Act 1974 provides that:

̋

----------------

 

S61

 

(1) A regulated agreement is not properly executed unless

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under s.60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the

creditor or owner, and

 

(b) the document embodies all the terms of the agreement, other than implied terms

 

----------------

 

 

(12.) The prescribed terms for a running-account credit agreement are:

 

- A term stating the credit limit or the manner in which it will be determined or that there is no credit limit

 

- A term stating the rate of any interest on the credit to be provided under the agreement

 

- A term stating how the debtor is to discharge his obligations under the agreement to make the repayments,

 

which may be expressed by reference to a combination of any of the following--

 

(a) number of repayments;

 

(b) amount of repayments;

 

© frequency and timing of repayments;

 

(d) dates of repayments;

 

(e) the manner in which any of the above may be determined;

or in any other way, and any power of the creditor to vary what is payable.

 

(13.) The Defendant contends that the signature document that the Claimant purports to be an executed agreement:

 

- does not contain the prescribed terms. These terms must be contained within the signature document and cannot be contained within a separate document. [Lord Justice Tuckey in the case of Wilson v Hurstanger 2007 EWCA civ 299.]

 

- it does not embody all the terms of the agreement in that exhibit UTEB-1, Document 1 is clearly not part of, or connected with, exhibit UTEB-1, Document 2.

 

- it has not been executed because it has not been signed by the Claimant.

 

- it is improperly executed in any event via s65 of The Consumer Credit Act 1974, because it is devoid of the prescribed terms required by s61(1)(a) of the same Act.

 

- the Agreement the Claimant intends to reply upon, is therefore irredeemably unenforceable due to s127(3) of the same Act and thus the Claimant has no prospect of success and their Claim must surely fail.

 

- in any event, an Application Form devoid of any prescribed terms must be considered void due to s.59 of The Consumer Credit Act 1974, from ever being regarded as a properly executed Regulated Credit Card Agreement.

 

Please feel free to use or reject, as you see fit.

 

I've spaced it out a bit, mainly to try and help both the Judge to read it on the day, and to help you to find what you may want on the day.

 

Use bold for headings if you can, and also for the Paragraph Numbers, just to help break it up into bite sized lumps.

 

I added the bit at the end to ram home s61(1)(a), s65 and s127(3).

 

Cheers,

BRW

Share this post


Link to post
Share on other sites
Just some minor nit picks, to help:

 

Your input is always welcome BRW. I'll read carefully and make I understand it all and merge with mine.

 

Thanks!


Share this post


Link to post
Share on other sites

deleted.

 

uteb

Edited by uptoeyeballs
Didn't want to give this to the opposition

Share this post


Link to post
Share on other sites

Well, they keep telling me what was on my back, and they and various DCAs keep sending it. Only problem is that despite their weird photocopying the back won't fit on the front, and if they want it to fit they'll have to reduce it in size so much it wouldn't be legible!! :)

Share this post


Link to post
Share on other sites

Nope! No tea and biscuits for me while I browse my agreement!

 

Quick confirmation from anyone passing by please.

Defaults notices prior to 1st October 2006 only needed to allow 7 days after service?

 

Cheers!

 

uteb


Share this post


Link to post
Share on other sites

Hello UTEB!

 

Defaults notices prior to 1st October 2006 only needed to allow 7 days after service?
Not quite, I think the date is 19th December 2006. See below:

 

http://www.johnpughschambers.co.uk/Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.pdf

 

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

 

3

 

A specification of:--

 

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

Then look further down to the notes towards the bottom...

 

NOTES

 

Amendment

 

Para 3: in sub-paras ©, (d) words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

 

Date in force: 19 December 2006: see SI 2006/3094, reg 1.

Cheers,

BRW

Share this post


Link to post
Share on other sites

Cheers BRW!

 

That stuffs one angle as the DN was issued (according to the SAR as I don't have it) before the 14 days came into force.


Share this post


Link to post
Share on other sites

Hello UTEB!

 

That stuffs one angle as the DN was issued (according to the Subject Access Request as I don't have it) before the 14 days came into force.

 

Don't be too hasty!

 

They issued the same rubbish back then too, because they allowed just 7 days then instead of 14!

 

IOW, their Notices were no better then, because they also stated 7 days from the Date of the Notice.

 

Either way, they failed to allow for Postage.

 

Never give up, never give in!

 

Cheers,

BRW

Share this post


Link to post
Share on other sites
Don't be too hasty!

 

Hi BRW!

 

Keep checking the dates and they terminated 13 days after the date of the DN. Counting on my fingers they would be a day early if it was sent 2nd class, so quite weak as I don't have the envelope to prove it.

 

Notice back in this post though they have in the SAR that the expiry of the DN was before it was sent. That I can use!

http://www.consumeractiongroup.co.uk/forum/amex/216661-uptoeyeballs-american-express-credit-3.html#post2770460

 

uteb


Share this post


Link to post
Share on other sites

Hello UTEB!

 

Keep checking the dates and they terminated 13 days after the date of the DN.
If I read what you say, this is irrelevant. When they Terminated is not an issue in terms of the 7 clear days they must allow on the s87(1) Default Notice.

 

IOW, the timescale for Termination after the DN has expired is not a key issue.

 

What matters is...have they allowed you 7 clear days on the Notice? i.e. allowing for Service. If not, then the Notice is defective, and they have a problem.

 

Think of it like, say, a Birth Certificate that states the wrong baby and the wrong date of birth. The Certificate is then defective, and stays defective no matter how big the Birthday Cake when the baby turns 1 year old.

 

You could be looking at the size of the Birthday Cake, when all you need to look at is the Certificate. If it's defective, then it's defective, and nothing whatsoever that happens after it was issued can change that.

 

In the case of a DN, the sole exception that can remedy their self-imposed problems is if they issue a correct Notice before they Terminate. Once they do Terminate, then they lose that option, and are thereafter stuck with the defective Notice and the realisation that they have lost all s87 benefits for all time.

 

Cheers,

BRW

Edited by banker_rhymes_with
Typo + Clarity

Share this post


Link to post
Share on other sites

Hi BRW!

 

I think I'm on the right lines. Just re-doing the whole WS!

 

This is the main part around the DN after quoting s87/88, time for service etc.

 

uteb

 

(32.) The failure of a Default Notice to be accurate not only invalidates the Default Notice [Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255], but also brings about an unlawful rescission of contract.

 

 

(33.) It is submitted that the Default Notice served by the Claimant under s.87(1) Consumer Credit Act 1974 was inaccurate and that there was an unlawful rescission of contract in that:

 

 

(i.) The date before which resolution was to have taken place of 21st January 2005 was earlier than the service date and seven clear calendar days, being 23rd February 2005, if Second Class post was used and also the service date and seven clear calendar days, being 19th February 2005, if First Class post was used.

 

 

(ii.) The Defendant had no time to remedy the default.

 

 

(iii.) The amount of default was incorrect in that it included unlawful charges and interest.

Edited by uptoeyeballs

Share this post


Link to post
Share on other sites

Think I'll drop all the pre-amble about time for service and just assume the judge will know this. If the dates are questioned I can dig it out, but is is actually irrelevant as the remedy date preceded the issue of the DN.


Share this post


Link to post
Share on other sites

Well here we go then! Not sure if this is plan D or E!

 

Thanks for all the input folks, especially BRW, Liz and DD and those I've stolen from PT, PW etc - Not sure I'm getting an award though!

 

uteb

 

Just trying to get in a form that will post up.....

Edited by uptoeyeballs

Share this post


Link to post
Share on other sites

Ok, it's filed.

 

I've removed from here because they will no doubt come looking once they get served a copy; Not that it's impossible for them to work out who I am, just don't want to give it away!

 

Happy to share later or by PM (to established Caggers) if you think it will be of use to you.

 

Wait to see what happens next.....

 

uteb

Edited by uptoeyeballs

Share this post


Link to post
Share on other sites

I think I may have stuffed up on one of my points!

 

Can anyone offer comfort!

 

2.—(1) Subject to the following provisions of this Order, every judgment debt under a relevant judgment shall, to the extent that it remains unsatisfied, carry interest under this Order from the date on which the relevant judgment was given.

 

Seems to me they can include stat interest in their POC up to the date of judgment where I originally thought they couldn't.....

 

uteb


Share this post


Link to post
Share on other sites

Hello UTEB!

 

No they can't, read a bit further to 2(3)(a)...

 

The County Courts (Interest on Judgment Debts) Order 1991

 

The general rule

2

 

(1) Subject to the following provisions of this Order, every judgment debt under a relevant judgment shall, to the extent that it remains unsatisfied, carry interest under this Order from the date on which the relevant judgment was given.

 

(2) In the case of a judgment or order for the payment of a judgment debt, other than costs, the amount of which has to be determined at a later date, the judgment debt shall carry interest from that later date.

 

(3) Interest shall not be payable under this Order where the relevant judgment—

 

(a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974[2] ;

 

(b) grants—

 

(i) the landlord of a dwelling house, or

 

(ii) the mortgagee under a mortgage of land which consists of or includes a dwelling house,

 

a suspended order for possession.

Cheers,

BRW

Share this post


Link to post
Share on other sites
Hello UTEB!

 

No they can't, read a bit further to 2(3)(a)...

 

The County Courts (Interest on Judgment Debts) Order 1991

 

Cheers,

BRW

 

Ooh, that's absolutely marvellous.

 

Kept going over 1 and 2 when all that matters is.....

(3) Interest shall not be payable under this Order where the relevant judgment—

(a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974

...and anything else is irrelevant.

 

I still struggle to get my head round how a court allowed it to happen, even though I now realise they a creditor can pretty much claim any old rubbish and if it's not defended then you can end up stuck with it.

 

......Should know better by now.

 

Think I might have a pint. Have one too BRW! :-D:-D:-D


Share this post


Link to post
Share on other sites

  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...