Amex CC 2006 Enforcability

[steve2577]

Hello,

 

No Money No Job and on the face of it a pretty bleak future any help would be a tremendous boost for me.

 

I currently have 14 CC agreements I am challenging all were taken out before 2007 I have had vaious responses but my main concern is Amex.

 

I initially asked for information but this was a general request I didn't quote any of the sections in any Act.

 

I received what appears to be a digital copy of a Credit Card Application (2 pages) and a covering letter which I will post here on this thread.

 

Can anybody have a look and see if this is enforcable I appreciate there are a couple of areas where this could be the case specifically.

 

Taken from a previous thread on enforcability ref CCA 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 on the document

 

I have also read that if the word Application appears anywhere on the document that to could also make it unenforceable.

 

My application was on one sheet of A4 so pages 2 and 3 would be the same piece of paper.

 

I am a bit confused due to all the different dates and formats of various applications.

 

Page 1 Letter received from Amex

 

 

Page 2 Front of Application (my address ws inserted in the bottom left corner) but the top right is difficult to read.

 

 

Page 3 Back of Application

 

 

I can see reading the site there are a lot of worried people I am very worried and concerned and would appreciate any help you wonderful people can offer

 

Regards Steve

Edited November 23, 2009 by steve2577

[smouk]

Hi Steve

 

I can't give any accurate opinion on the above but I'm sure that someone more qualified will be along shortly to do just that.

 

In the meantime, why are Amex your 'main concern'? What is the status of your account with the Brighton bunch? Have you defaulted? Are you currently defaulting? Are you likely to default soon? Are you in any kind of dialog with them other than the above?

 

Try not to fret too much, these orgs will always try to make it seem they will bring the world crashing around your ears. It's very rare that they can.

[steve2577]

Thanks for your response

 

I haven't defaulted on Amex but the other 13 in the posse are starting to catch up.

 

Current Situation is

 

3 Barclaycard

3 MBNA

1 Capital One

1 EGG

1 RBS

1 Lloyds TSB

1 Tesco (in Default see other thread of mine)

1 Citicards

1 Beneficial now HFC (in default)

 

 

That many can't rememebr who the last one is oh yes Amex

 

To compound the issue my partner also has £40k owing and as I didn't feel I could cope with dealing with everything I have used a third party to assist which is going to cost me a few bob and no gaurantee.

 

Tell me now if I was an animal you would probably put me down, I still have some fight left but it is absoluteley draining.

 

Still hanging on in there Steve:)

[steve2577]

Hi Steve

 

I can't give any accurate opinion on the above but I'm sure that someone more qualified will be along shortly to do just that.

 

In the meantime, why are Amex your 'main concern'? What is the status of your account with the Brighton bunch? Have you defaulted? Are you currently defaulting? Are you likely to default soon? Are you in any kind of dialog with them other than the above?

 

Try not to fret too much, these orgs will always try to make it seem they will bring the world crashing around your ears. It's very rare that they can.

 

 

Having spent the last 20 hours reading this site Amex seem to be the rottwielers of the industry.

 

I know the rest aren't angels but this one the only company that actually made a first response with something tangible.

 

Steve

[Monty2007]

Having spent the last 20 hours reading this site Amex seem to be the rottwielers of the industry.

 

I know the rest aren't angels but this one the only company that actually made a first response with something tangible.

 

Steve

 

Hi Steve

 

Is the second page they have sent signed by you, and do you think that this is actually the reverse side of the document?

 

It is difficult to read all the information but this looks to be a close one to call since it appears to have the prescribed terms. Amex have certainly won cases on less than this so it may be enforceable. Prior to 2005 Amex usually just scanned in the front page of the application and left themselves open, they then got their act together.

 

As soon as you default with Amex they will throw you to a DCA even if you tell them first that you are having problems, indeed they typically do it faster when you do call for help. Sad but true.

 

However, they always seem to mess up of the default notice so you may have an angle if/when you default. Their process will involve making you an offer to settle, typically 50% but this will be after you have been through the mill of their DCA's, typically.

 

With the amount of debt you have you may want to consider BR, especially if your agreements are recent since they will have a greater chance of being enforceable.

[steve2577]

Hi Steve

 

Is the second page they have sent signed by you, and do you think that this is actually the reverse side of the document?

 

It is difficult to read all the information but this looks to be a close one to call since it appears to have the prescribed terms. Amex have certainly won cases on less than this so it may be enforceable. Prior to 2005 Amex usually just scanned in the front page of the application and left themselves open, they then got their act together.

 

As soon as you default with Amex they will throw you to a DCA even if you tell them first that you are having problems, indeed they typically do it faster when you do call for help. Sad but true.

 

However, they always seem to mess up of the default notice so you may have an angle if/when you default. Their process will involve making you an offer to settle, typically 50% but this will be after you have been through the mill of their DCA's, typically.

 

With the amount of debt you have you may want to consider BR, especially if your agreements are recent since they will have a greater chance of being enforceable.

 

I cant be sure what the form looked like but I assumed this was the reverse. I probably agree about BR but this would be devastating and I want to try and avoid this until I know my chances of winning with the other CC's.

 

I could probably raise around £10k from family if I had to but it would involve asking for something that would be provided but I am not prepared to do this if I cant reach an agreement that is a win/win I would be prepared to offer this if I could get out of jail so to speak for this kind of amount.

 

Alternativeley going BR is something that I am slowly coming to terms with especially as there is probably very little they could get if I go down this route, my house is in negative equity and apart from a bit of furniture there's not a lot they could take. The only dwon side for me is that I had plans to try to get on my feet and start a new business.

 

One of my main issues was to ascertain if this would be enforceable as to me this seems to be the most difficult company to deal with and I think the other CC's would be easier.

 

In effect yes BR is the obvious course but only if I have 14 to fight at the same time if it boils down to one or two I can probably handle this.

 

All of the agreements are old well before this one most probably go back 10 to 15 years.

 

 

Steve

Edited November 23, 2009 by steve2577

[Monty2007]

Hi Steve

 

I think your chances with Amex are remote to be honest, they have had judgment in their favor on similar application/agreements, and worse in some cases. The process is also long before they litigate, although they may come to a settlement given the number of people defaulting. So worth exploring, especially if you can produce an I&E document which essentially shows that they would be better off accepting a settlement. Knowing Amex, they won't do anything until you default though since they want you to be the party that defaults the agreement and they then use the relevant provisions to enforce.

 

When were the other cards taken out? You may have a better chance with them, however you may well find that the Amex DN is pants so all is not totally lost with them.

[steve2577]

I dont know the exact dates of all the other cards but I do know they are all pre 2006. If you think this is important then I can check.

 

I would go as far to say they are on average 12 years old.

 

As far as BR is concerned I suppose as far as I am concerned it doeasnt really matter but again it's the family that is a priority and my partner is worried about the usual stuff.

 

 

 

 

Steve

Edited November 23, 2009 by steve2577

[Monty2007]

I dont know the exact dates of all the other cards but I do know they are all pre 2006. If you think this is important then I can check.

 

I would go as far to say they are on average 12 years old.

 

As far as BR is concerned I suppose as far as I am concerned it doeasnt really matter but again it's the family that is a priority and my partner is worried about the usual stuff.

 

 

 

 

Steve

 

Hi Steve

 

The older the are then the greater the chance that they are not enforceable. You need to start a thread for each one and also look through the cases for each of your creditors to get a sense of what you should expect.

 

Amex or through their DCA's will come to a pre-litigation settlement, typically 50%. Take a look at the Amex threads and you will see that their actions are usually very predictable.............

[captain2]

Hello there what is BR ? Dont borrow anything from family dont even think of paying them enforceable or not - you pay them and your credit file will show that every other CC will then want paying so you will make things that are not that bad much worse ! If you are employed get into a DMP with Payplan ! If not then pay £1 a month whether they accept it or not and the court if they ever go there will probably be on your side they can't bankrupt you as that is frowned upon this is the credit industry not a back street car dealer ! They shouldn't have lent so recklessly !

[exchange]

Subbing

[steve2577]

Hello there what is BR ? Dont borrow anything from family dont even think of paying them enforceable or not - you pay them and your credit file will show that every other CC will then want paying so you will make things that are not that bad much worse ! If you are employed get into a DMP with Payplan ! If not then pay £1 a month whether they accept it or not and the court if they ever go there will probably be on your side they can't bankrupt you as that is frowned upon this is the credit industry not a back street car dealer ! They shouldn't have lent so recklessly !

 

Understood

 

Not employed been out of work since being made redundant.

 

Just a bit confused about all the options I am now familiar with the CCA requests, The SAR request and after today CPR 3.16 boy this is a steep learning curve.

 

This might sound like a stupid question but assuming I am taken to court and lose in other words I owe money officially what next?

 

Steve

[MandM]

Hi Steve,

 

Here's some bedtime reading that's worth a look by the very knowledgeable Steven4064. Very interesting stuff!

 

M

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements-guide.html

[steve2577]

Been reading the Application Form and what I assume to be the reverse of the form. It just seems a bit strange that the whole document is a bit hazy except for the signature box which is easy to read and very sharp and clear, in fact a box within a box within another box. Without being paranoid there is something not quite right all the other box's on both front and back just dont seem to be a clear and sharp.

 

Anyway moving on to the bit everybody seems familiar with CCA 1974 Section 61

 

61(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 section 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,

and

© the document is, when presented or sent to the debtor or hirer for signature, in

such a state that all its terms are readily legible.

 

 

Some of the clauses refer to clauses that are not on the form does this have any significance with regard

to 61 (1) (b) and 61 (1) ©

 

6.2 refers to clause 22

7.7 refers to clause 12

 

Again I might be clutching at straws but shouldn't all the clauses that are mentioned on the form actually be on the form?

 

There is no signature for Amex just a stamp and a bit of squigle I know reading a lot of threads the courts dont seem to care about this.

 

Finally has anybody ever challenged what seems like a perfectly good copy by going to AMex and checking and what do you check if they have digitised everything?

 

 

 

 

 

Steve

Edited November 25, 2009 by steve2577

[steve2577]

Can I pose a question ref Amex and copies.

 

Lets assume I also have a copy of what I believe was my contract and I take this into court and basically the Judge is confronted with a copy that I have and a copy that Amex have unless the original is produced who is to say which is which?

 

Now obviously I will have to trawl through all my old papers to find this copy but to the best of my knowledge this was the copy I signed.

 

In this situation where would we be in an actual court scenario??

 

No I know that I keep all my documents and I know that I should be able to produce what I honestly believe is the actual copy that I signed. What happens then??

 

 

Now I cant be 100% sure at this point I will need a few weeks to locate the actual copy but what if my signature on my version of the document doesnt quite tally with the one produced in court.

 

Without being educated in the finer aspects of Law surely the only way to verify which copy is the original is to produce the damn thing.

 

Now I've only been studying this for a few days but I am sure if you all go through you old documents they must be somewhere maybe at your mother loft or something then sureley you to should be able to come with what you believe is the actual copy that you signed.

 

 

In fact why dont you all really really look hard for those copies and submit them to the court at the same time that Amex submit there copies at some point the original should emerge just to clarify the whole situation.

 

Actually from I what can rememeber my copy isnt that legible and it was copied on an old fax machine so its a bit rough but when I find it I am sure it will look just as convincing as the copy that Amex produce.

 

One final thing of course when I put my copy through that old fax machine it didn't have their signature on just mine but hey that wont be any different to there copy I suppose.

 

Now I need to go through all my old Docs and locate that copy well before any court appearance so If and when it gets to court I should have everything there to present my case.

 

 

 

Steve:idea:

Edited November 25, 2009 by steve2577

[shakespeare62]

Been reading the Application Form and what I assume to be the reverse of the form. It just seems a bit strange that the whole document is a bit hazy except for the signature box which is easy to read and very sharp and clear, in fact a box within a box within another box. Without being paranoid there is something not quite right all the other box's on both front and back just dont seem to be a clear and sharp.

 

You could always consider sending them something like this -

 

I refer to your recent reply dated [Date] to my request under section 77-79 of the Consumer Credit Act 1974.

 

I note that you have replied to the above by sending an illegible copy of the purported agreement. 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, The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557 states:

 

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

2.-(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 colour of the paper.”

 

I hope this explains why your reply was unacceptable. I remind you that whilst the request has not been complied with the default continues.

[steve2577]

Have you read my last thread I know 100% that I will have a copy somewhere it might be a bit rough and illegible and my signature will I think be on it unless I accidentally copied it without my signature but I dont think I would of done that, but until I locate it I cant be sure.

 

I hope I copied it with my signature on it otherwise I will look a right numpty going into court with a blank contract.

 

 

 

 

Regards Steve:rolleyes:

[shakespeare62]

By the way you can find a load of useful Consumer Credit Act Regulations (including Default and Termination Notices) on the CAG Statutes Library as follows :-

 

 

1. Click the link below
   The Consumer Forums - Statutes
   
2. On page 2 of the list, currently Article # 24, select Consumer Credit Act (1974) and related Regulations
   
3. Browse the regulations listed. You’ll see The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557
   

[shakespeare62]

Have you read my last thread I know 100% that I will have a copy somewhere it might be a bit rough and illegible and my signature will I think be on it unless I accidentally copied it without my signature but I dont think I would of done that, but until I locate it I cant be sure.

 

I hope I copied it with my signature on it otherwise I will look a right numpty going into court with a blank contract.

 

Regards Steve:rolleyes:

 

It might be useful if you could find it. The 'illegible copy' example I posted may delay things, it may get you a better copy - so you can see what they've got.

 

Amex apparently are still using Defective Default Notices. Which should be a show stopper when defended properly.

[steve2577]

Thanks for that I bet there are also other faulty agreements that I could check to see if it is similar to my faulty agreement when I locate mine. It would of course be nice to make sure that mine has the same faults and nice to be able to compare mine against others that have been posted.

 

At first I was **** scared of all this but now slowly I am beginning to relish the fight just wish I had done all this last year instead of re-mortgaging my house to the hilt and paying £90k off my so called agreements.

 

Very good of you to respond so quickly thought I might be the only person on for some reason. Hope my post doesn't get bumped for any reason I am a law abiding citizen.

 

 

 

Steve

[steve2577]

You could always consider sending them something like this -

 

I refer to your recent reply dated [Date] to my request under section 77-79 of the Consumer Credit Act 1974.

 

I note that you have replied to the above by sending an illegible copy of the purported agreement. 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, The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557 states:

 

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

2.-(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 colour of the paper.”

 

I hope this explains why your reply was unacceptable. I remind you that whilst the request has not been complied with the default continues.

 

 

Did you mean Dispute instead of Default?

[steve2577]

By the way you can find a load of useful Consumer Credit Act Regulations (including Default and Termination Notices) on the CAG Statutes Library as follows :-

 

1. Click the link below
   The Consumer Forums - Statutes
   
2. On page 2 of the list, currently Article # 24, select Consumer Credit Act (1974) and related Regulations
   
3. Browse the regulations listed. You’ll see The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557
   

 

The link to the statutes libray didn't work can I upgrade to this or do you have another link ref Deafult Notices etcSteve

[johnerog]

Found you Steve.

We will have to get the big boys to have a look at this because i can hardly see it but; I can't see a credit limit on this and its headed application form. It should be headed This is Credit agreement etc. Also as an application: S59(1) states: 'An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement'

I think its very dubious.

[steve2577]

Found you Steve.

We will have to get the big boys to have a look at this because i can hardly see it but; I can't see a credit limit on this and its headed application form. It should be headed This is Credit agreement etc. Also as an application: S59(1) states: 'An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement'

I think its very dubious.

 

 

Wow when I got this in the post I go a bit deflated as it appeared to be what I asked for however I did a bit of research myself and found this

 

at The Consumer Credit Act 1974

 

…when it’s an application!

 

Creditor No2 has replied to my request for a cca – well at least they sent something. The only thing is they have sent a copy of an application form which was completed by me when I applied for the card. Now an application form just isn’t the same as a properly executed agreement as far as the Consumer Credit Act is concerned. Without an agreement signed by both the debtor and the creditor that includes all of the prescribed terms the debt is unenforceable even via a court.

 

At first I thought this might be a bit old or out of date so I know where you are coming from on this.

 

I am looking at the agreement and on what might or might not be page 2 under credit limit it says;

 

We will decide at our discretion, your Credit Limit from time to time and inform you what it is. We may vary these limits from time to time

 

I have made a formal request for CC1974 s 77/78 and am preparing another letter from a previous post about not being able to read parts of it (mainly page 1 top right).

 

Really Really grateful for your post you can't believe what effect it has.

 

I am going to make a donation right now.

[steve2577]

I was advise to look at

 

Law of Property Act 1925 - specifically section 136 and 196

 

for general reading and got sidetracked again onto prescribed terms

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

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.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit

 

Now as I see it having no credit limit defined is OK as long as they say how this will be administered which they seemed to have done.

 

And possibly interest rate could also be OK as they have defined that the interest rate will vary.

 

So my conclusion is that the only big issue is the heading of the original APPLICATION in that the Word Apllication is there with no reference to the CCA 1974 (except for the little box where I signed)

 

Right now my head is mush but it would seem to me that the only major issue is the Word Applciation form but what weight does this have?

 

 

Steve :? again