Amex CC 2006 Enforcability

[captain2]

Hi interest rate has to be APR based on the total charge for credit - 'application' is red herring - if it has prescribed terms and is signed by both creditor and debtor then its an 'agreement' - also got to be legible and prescribed terms contained within the signature document -

[steve2577]

Hi interest rate has to be APR based on the total charge for credit - 'application' is red herring - if it has prescribed terms and is signed by both creditor and debtor then its an 'agreement' - also got to be legible and prescribed terms contained within the signature document -

 

Are you hinting there may be an issue for me to consider?

 

 

 

Steve

[captain2]

Hi - yes if the APR is not stated one of the prescribed terms is not stated but APR needs to be inclusive and must be TCC total charge for credit under S20 i think it is of the CCA - the APR has small tolerances which will potentially be skewed if for example cash handling charges do this - there are site teams posts on this on this site too - see OFT web site for several pages of how APR is worked out -

 

Here is a very long letter I am waiting to send to EGG if and when I ever get the copy agreement from them ( I already have one but I'm waiting to see what they send again ) -

 

'' I originally wrote to you as the rate of interest you are charging is unaffordable causing me hardship and is prejudicing my ability to service other debts such as my mortgage. My business has suffered a significant downturn and is not in a position to allow me to draw any salary whatsoever to pay any sum. I wanted to see how you have the authority if any to raise the interest rate so exponentially or maintain this while bank base interest rates have declined to new record levels. As a responsible borrower I also have a duty to safeguard the interests of other lenders who are charging more affordable and reasonable rates of interest and who have legitimate and properly documented agreements. Furthermore I have a self interest to ensure I can service these debts and an interest in ensuring my partner’s position is also not prejudiced where those loans are jointly held. Thus I have no alternative but to pay whenever that is possible at present only those agreements that are reasonable and valid.

 

Thus as you can see from the above continuing to pay creditors where the terms and conditions are quite unfair and unreasonable can and will cause problems to other lenders who ARE being fair. In terms of the ancient principles of Natural Justice I am dealing with my problems in the fairest way possible for all until a court directs me otherwise.

 

Further to my request for copy agreements on xxx I note none have arrived as of xxx….( I will wait until the month has expired to see if one arrives before sending this letter as it will improve my position if it doesn’t).

The copy ‘agreement’ for each account which I requested earlier in the year comprises of two pages accompanied with a generic set of terms and conditions headed Credit Agreement Regulated by the Consumer Credit Act 1974. These separate terms and conditions are not dated and are unsigned. The Green card ‘agreement’ is dated 1st.8.02. and the Blue card dated 7th.6.04. Both ‘agreements’ are identical in terms of terms and conditions.

 

Therefore I will discuss both simultaneously in the same way –

 

Address of creditor is stated as Basildon and at Derby. Can you please explain this i.e. at what dates did Egg occupy both addresses ?

 

‘Credit limit’ – this is not stated – only ‘limit’ is referred to.

 

Default charges not outlined.

 

The copy of the alleged ‘agreement’ has in clause 4.1 a monthly interest rate of some 1.093 equivalent to 12.3% APR but then re stated on the line below at 13.9 % APR after Jan 03 and November 04 and as it has no end date I assume this is continuous during this ‘agreement’. An undated cash advance fee of 16.3 APR is stated in 4.2. In 4.4 you state ‘in working out APR’s we have ignored any changes we may make to the interest rates, handling fees or any other charges which we introduce or vary at any time by giving you notice under condition 12’. How can you ignore changes made to the interest rate in working out the APR ? This in itself is a meaningless or even contradictory phrase and as an important prescribed condition required by the Act it is not clear. I further note that the APR for cash advances is 16.3 % but that each cash advance is charged subject to a handling fee of 1.25 % subject to a minimum of £2. Under section 20 of the CCA 1974 the Total Charge for Credit (TCC) has to include handling charges but I see you have attempted to exclude them. This therefore renders the stated APR inaccurate. For example a cash advance of £50 at min handling fee of £2 represents some 4% or more thus skewing the APR way beyond the tolerances allowed under the Act. On a cash advance of £25 that represents an interest rate of 8 % having even greater impact on the APR.

 

In any event the interest rate has been stated at 1.093 % monthly equivalent to 12.3 %APR but then 13.9%APR is stated on the line below - thus inaccurately stating the interest and not complying with a prescribed term.

 

Should it be held that condition 12 is excluded from the agreement then the interest rate of 12.3 % APR should be the continuous rate less the sum that that would decline to under the margin above base and taking into account the natural justice concept. That should this be the case the then ‘agreement’ does not contain an expiry date. Should it be held that an expiry date is required is this co-terminus with the card expiry date ? Should this be so then where are the subsequent run on signed agreements ?

 

That condition 12 is not contained within the signed copy means it may not be part of the signed agreement. Notwithstanding this upon looking at condition 12 in the attached sheets this condition is headed ‘Changes’. 12 Changes – ‘ we can change this Agreement to make it fairer to you or more easily understandable, or to correct a mistake (provided that this correction would not adversely affect you ), or to cover a development in, or the introduction of, new services and new ways in which you can use the card or to reflect a change in the law or any code of practice (or the way in which they are applied ). We may also at any time add a card fee and vary the charges and interest rates for the following reasons :

 

- to reflect a change in the law or any code of practice (or the way in which they are applied)

- to reflect a change in technology, to cover an improvement or change in our services or in the facilities that we provide;

-to ensure the good management or competitiveness of our business

-or for any other valid reason.’

 

12.1 refers to not altering the agreement to make it unfair. You then state the grounds which would give rise to changes in the interest rate. These grounds are to reflect a change in the law or any code of practice etc. etc. or for any other valid reason. You do not define ‘valid’ - taken in the context of your claim not to unfairly prejudice the customer in 12.1 it could be assumed interest rates will be altered and will follow decreases in the base rate.

 

12.2.1 refers to advantageous interest rates 12.2.2 refers to disadvantageous rates and provides that if all money is repaid and the account closed then the disadvantageous rate will not apply. This seems a peculiarly odd condition as how can any rate of interest apply if the sum is repaid ?

 

However the ethos or basis of raising or lowering interest rates is contained in 12.1 and the reasons you give to vary interest would be if there is a change in market conditions or banking practice or changes in technology which improves the efficiency of the business, to ensure good management or competitiveness of the business or reflect changes in law or codes of practice. Ignoring any ‘other valid reason’ (as it is meaningless) the specific grounds for altering interest rates appear to be in improving competitiveness or reflect a change in market conditions etc thus the general implication is that they would be reduced wherever the opportunity arose in competing with others, in improving efficiency, and any legal or code of practice.

 

‘Legal or banking’, ‘legal or code of practice’ implies that bank base rates are covered by this - interest thus following base rates – almost all downwards since 02.

 

Furthermore the reasons and grounds for altering interest rates seem to imply they will be under review wherever possible to the customers advantage e.g. if any efficiencies and competitiveness can bring such change about. The grounds do not state whether they will rise or fall and how, if, and when, only that they could vary.

 

As you state you ‘will not alter the agreement to make it unfair’ it follows that your interest rates will follow bank base rates.

 

Thus from condition 12 that you have raised interest rates contrary to your own conditions and the principles of natural justice.

 

The inference I draw from this is that rates will generally be kept under review to ensure a competitive and efficient edge thus in an era of hugely declining interest rates being reduced if anything.

 

Thus the ‘agreement’ states interest rates are 12.3 /13.9 APR for both cards from Jan 03 Green Card and Nov 04 Blue Card. As base rates have declined substantially since 04 the grounds for altering rates should in general have been to lower them. Therefore given the grounds for varying interest rates this rate should by condition 12 be lowered not raised. However your current and past interest rates have risen and thus contrary to any legal or code of practice.

 

The attempted right to unilaterally impose interest rate increases is contrary to natural justice. Audi alteram partem = let the other side be heard’ – nemo iudex in causa sua = no man is permitted to be judge in his own cause. The right to advance warning and procedural fairness. These ancient legal principles still permeate the legal reasoning and jurisprudence today and recent examples of them at work include many reforms enacted to codify these principles hence the CCA 1974 and many other Acts.

That they still pertain in civil law is a safety net in the event of unscrupulous

actions of self interest on the self interested part of others.

 

The CCA 1974 states all agreements must contain the right to cancel.

There is no right to cancel in the alleged copy agreement or in the accompanying generic terms and conditions. The right to cancel is further provided for in the 1983 Consumer Act Regulations.

 

You state that ‘the agreement will only be binding on us (i.e. EGG) when we (EGG) have completed and are satisfied with our final checks and other searches and you have signed and returned the credit agreement to us.’ On the green card ‘agreement’ the Egg signatory is 1st. August 02 and the borrower dated 2.8.02. On the blue card ‘agreement’ the signature of Egg Bank is dated 7.6.04 and the borrower dated 9.6.04.

 

Thus the ‘agreements’ would appear to have been signed by Egg first and then sent out for borrower signature. Thus the ‘agreements’ are not in your own phrase legally binding at this stage thus these may be ‘conditional’ agreements and therefore agreements not regulated by the 1974 CCA. At what point then is the agreement binding and where then is the subsequent properly executed agreement ?

 

The Egg cards have expiry dates - where are the new signed copy agreements for each new card ?

 

Thus I refute there is any properly executed signed agreement or debt to yourselves.

 

Should any properly executed signed agreement incorporate the terms and conditions discussed above then the current balances you are claiming should in fact have generated at some 29 per cent interest over a long period sufficient over payment of interest as to be more than equivalent to any alleged debt. The alleged agreement does not state how interest rates can rise given what has happened to bank base rates.

 

Thus if the agreement had been properly executed and the interest rate declined at the same margin above base as in 02 and in 04 it may now be some 7 or 8 per cent and then any sum properly due might have now exceeded the current balance and a significant refund could be due to me. For example as a quick illustration say for example £20k is the combined sum at nearly 29 per cent APR that is almost some £5800 per annum taken over 5 years this is £29,000 less interest at 12.3 is £2460 at 13.9 per cent is £2780 pa the £12300 / £13900 difference is around /£16700 at 12.3 £15100 at 13.9 plus interest on this at 8 per cent court rate is £6680/ £6040. Total £23380 at 12.3 or /£21140 at 13.9 . These figures are not precise and there will be some purchases but also the margin above base if section 12 is to be used as a base for altering rates would mean the rate probably around 7 or 8 per cent. Thus the difference at this lower rate would be some 20 per cent per annum i.e. £4,000 per annum.

 

 

I have carefully considered the impact of the Consumer Credit Act 1974 at it applies to this ‘agreement’. I do not believe that the ‘agreement’ has been properly executed as provided under section 61 of the 1974 Act - it should be signed by both parties, be legible, and terms and conditions be displayed in a prominent way and contain what are known as the Prescribed Terms. On further research I notice that although it might be unenforceable, you would be able to apply for a court order to uphold the agreement under section 65. I have also noted that under Section 127 of the Act the Court will not grant such an order unless the ‘agreement’ has been signed by me and contains the Prescribed Terms as set out in Schedule 6 of the 1983 Regulations. The prescribed terms are 1. amount of credit, 2. credit limit, 3. rate of interest, 4, repayment details.

 

As it stands it appears that your properly executed ‘agreement’ is incomplete even though I have requested a full copy. Therefore I am entitled to assume that no enforceable agreement exists. Furthermore the reply card heading would support the argument this is not an agreement.

 

Therefore this agreement is none- compliant and unenforceable on not just one item but a whole range of issues. Any interest that has been accrued during the period of none compliance i.e since it began will therefore have to be removed. Any attempts to enforce the ‘debt’ or refer the debt to a debt enforcement agency will be reported to Trading Standards, The Office of Fair Trading or the Financial services ombudsman or all three.

 

You are no doubt aware that the prescribed term ‘credit limit’ has to be in the agreement. There is no ‘credit limit’ and instead there is an ‘approved limit and if different the individual limit’ - as this has not been stated correctly the prescribed term is absent. Thus the agreement is unenforceable on this ground.

 

Notwithstanding the recent dicta by Mr.Justice Flaux in the recent Commercial Court decision of McGuffrey and RBS the Banking Code and the Consumer Credit Association which I assume you are a member of enshrines the following procedures which you must observe -

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must REMOVE all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state you have a ‘legal right’- you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 21 days I will expect that this means you agree to this and you should be aware that a creditor is not permitted to take ANY action against an account while it is in dispute.

 

The lack of a compliant and properly executed 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 any 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 related to the account.

 

 

I will be reporting your actions to any such regulatory authorities as I see fit.

In particular the Office of Fair Trading who control the issue of consumer credit licences. It is questionable as to whether a financial institution such as yours may be considered fit to hold such a licence given the clear inaccuracies and poorly put together documentation in what is a Statutorily regulated agreement and regulated industry where the potential financial imbalance of debtors to creditors is obvious and where Parliament has seen fit to codify some of the principles of natural justice and offer that protection to such vulnerable consumers and form the basis of any creditor/ debtor relations. The code of conduct in holding a licence forbids you to harass debtors, and not to lend irresponsibly. That raising interest rats exponentially while lacking the clearly described foundation for such in a properly executed agreement is hardly ‘responsible’ lending. It is also your obligation both legally and as part of the Banking Code and that of the Consumer Credit Association if you are a member.

 

That your unilateral imposition of unjustified interest rates on existing balances thus in effect helping yourselves to more money just because you feel like it should be looked at in the context of forcing debtors to default with more important creditors such as home loans who are taking a responsible approach to lending and charging fair rates. The Banking Code and Consumer Credit Licence regulations are hardly being observed here !

 

Mr.Francis Bennion QC the draftsman of the 1974 CCA has stated that creditors who can’t be bothered to properly execute accurate agreements deserve not to have those agreements enforced by the courts. Vague contract terms in an attempt to allow unilateral alteration after the agreement has never been an enforceable principle of English Law and as such they may be read against the party making them.

 

Furthermore any continuing defaults or adverse reports notified to CRA’s may be construed as defamatory for which I will hold both yourselves and the relevant CRA responsible.

 

Therefore I do not acknowledge any debt is owed to yourselves or that there is a valid agreement.

 

I must ask you to immediately refund all interest, sums and fees paid to you since 2.8.02. and that no telephone calls should continue to be made to me and that all communications are in writing.

 

Under the financial services ombudsman referral scheme please ensure that this letter is dealt with by your chief executive in order to facilitate that procedure should that be necessary on my part.

 

Yours faithfully,

 

Executive Summary –

 

In outlining my arguments above and in order that the key issues may be summarised I outline them below –

 

Your agreement within the dated addressed signature document is 2 pages. There are accompanying these several pages of purportedly supporting terms and conditions.

Thus to examine them of necessity requires a lengthy narrative.

 

However they are –

 

Terms of CCA 1974 and as amended are precise as to the prescribed terms – credit limit, APR within context of TCC, payment details. Credit limit is missing and is not referred to. ‘Limit’ on its own is not a prescribed term.

 

Your ‘Condition 12’ attempts to set out grounds for altering the rates. It contains representations that the contract will only be altered in circumstances favourable for the borrower. That can only mean interest rates. That an additional term to allow them to be altered for any valid reason is vague. Therefore that under natural justice and common law would be unacceptable. Thus the interest rate should be as stated in the agreement at 1.29 per month but will decline in accordance with base rates.

 

Condition 12 catches elements of misrepresentation, unfair contract terms, natural justice common law and general contract law. If this emanates from a none compliant statutory controlled agreement then I would argue none of this forms an enforceable contract or even one which is valid as in my opinion contracts cannot be based upon unjustifiable terms.

 

It could follow from this disseminating information which has no proper authority or which is untrue is incorrect. Therefore you may wish to look at the liabilities in doing this. You may also wish to consider your costs in this that potentially enforcing what in could be an unenforceable agreement should not have to be paid by the borrower.

 

Additionally you may also wish to consider your blatant none compliance with the CCA the Banking Code and Consumer Credit Association code in not supplying information requested. ''

 

 

I haven't sent this yet as for some reason despite at least 3 written requests they just will or cannot send a copy thus so far I have been unable to test this letter - but if its anything like the other cards I have sent something to they will just ignore it I expect.

 

After the relevant time periods which are probably now I will be sending it all to the ombudsman. The Ombudsman cannot rule on enforceability but he can certainly force them to to send an agreement and a reply to letters and possibly look at interest rates.

 

'

[johnerog]

I am not a lawyer so I have no idea what the Captain is on about, or why he is posting his mail here, I can assure you that an application form is not a red herring!! The quote I used was part of a very successful defense put forward by Paul Walton. This 'application' is dated 2006 and so falls under the 1974 (and amended) CCA not post 2007. On top of that it is missing prescribed terms as stated.

 

Steve i am not sure what the property act has to do with this. Credit cards are CCA.

[MandM]

Hi Steve, Just popped on to see how you're getting on with your new hobby ( you must be wondering what you did with all your spare time before Cag lol).

That's some letter in the previous post!!! by Captain. And I can see where Johnerog is coming from and it's something i'd like clarity on too.

I have a few CCA's that are headed as Application Forms. Are we saying then that provided that it also states somewhere "This agreement under the CCA 74" AND it contains all of the prescribed terms then it is an enforceable agreement? as opposed to just another application form.

M

[johnerog]

Hi Steve, Just popped on to see how you're getting on with your new hobby ( you must be wondering what you did with all your spare time before Cag lol).

That's some letter in the previous post!!! by Captain. And I can see where Johnerog is coming from and it's something i'd like clarity on too.

I have a few CCA's that are headed as Application Forms. Are we saying then that provided that it also states somewhere "This agreement under the CCA 74" AND it contains all of the prescribed terms then it is an enforceable agreement? as opposed to just another application form.

M

Hi MandM

I will try to explain although you must understand I am not a lawyer.

Have a look at the Consumer Credit Act 1974, S60. This sets out what a Credit Agreement MUST embody. They are called prescribed terms.

An application form to my mind is an invitation to make an agreement. Now; there were two major amendments and alterations to the CCA, one in 1983 (i think ) which the CCC's use when they refuse to send you a signed copy, and 2007 which gave the court greater leeway when making decisions. Anything dated before April 2007 must be judged on the 1974 Act and gives a judge less room to manouver.

Section 127 says that no court can enforce an agreement if ANY of the prescribed terms are missing.

Please check out S59-(1) which explains my previous point about void agreements and somewhere is a paragraph about headings, which I cannot find; but some one will.

John

[MandM]

Will have a read and see what I make of it and probably have more questions lol.

 

M

[captain2]

I posted that very long post as its my argument which contains useful features and arguments of help in any agreement where the interest rate has been increased. It was also designed to specfically answer the APR and TCC question so hope it may be useful - re 'application' form that becomes an agreement when its also got 'consumer credit agreement etc etc ' and the prescribed terms - I'm not a lawyer so its only my own concoction aided by this site. Ive no idea whether it will succeed - I think it ought to and I shall leave fed back when I know more. Good luck !

[steve2577]

I posted that very long post as its my argument which contains useful features and arguments of help in any agreement where the interest rate has been increased. It was also designed to specfically answer the APR and TCC question so hope it may be useful - re 'application' form that becomes an agreement when its also got 'consumer credit agreement etc etc ' and the prescribed terms - I'm not a lawyer so its only my own concoction aided by this site. Ive no idea whether it will succeed - I think it ought to and I shall leave fed back when I know more. Good luck !

 

 

Yes I agree and thanks for posting it at the moment nearly everything I have seen on all my threads is helpful.

[MandM]

I posted that very long post as its my argument which contains useful features and arguments of help in any agreement where the interest rate has been increased. It was also designed to specfically answer the APR and TCC question so hope it may be useful - re 'application' form that becomes an agreement when its also got 'consumer credit agreement etc etc ' and the prescribed terms - I'm not a lawyer so its only my own concoction aided by this site. Ive no idea whether it will succeed - I think it ought to and I shall leave fed back when I know more. Good luck !

 

Will watch with interest as I too am awaiting a response from Egg card so will be tackling them at some point.

I understand your point about interest/APR etc as I read a very long thread sometime back (never saved it ) on that very subject - and the rules dictate that the calculable interest can only be wrong by a very small margin in either direction.

Didn't fully understand it then but logged it in the back if my mind as it was clear that, as it was a proveable flaunting of the rules, it was a strong basis for a defence - which is something many of us strive to find within the postings on this forum. Have not as yet done the maths on any of my agreements/outstanding amounts (alleged;)) but it is something I want to do at some point.

Thanks for the points raised in your letter, and although very long (your words, not mine ) it gives further food for thought.

M

[steve2577]

I would like to write to Amex the following and have added a paragraph at the end, which I would like an opinion on as I dont want to trip myself up.

 

I refer to your recent reply dated 23rd Nov 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.

Would you also confirm that the copy you provided is a true copy of the original document and that the original document can be produced at some point to determine its validity.

Yours Faithfully

[captain2]

My understanding of the 'enforcebility' is that if interest is stated then a prescribed term is stated and thus court has discretion to enforce. But court then has discretion to correct the interest stated if its incorrect. Thats where an unfair or misleading interest rate may be useful in case of hardcore debt over long period as court MAY order compliance with an interest rate to benefit the consumer.

 

See OFT web site for interest calculations of APR and TCC there are pages of it as its very complicated to work out. If they've miscalculated in excess of the small margin allowed then its incorrect and thus court may take that into account but what rate if any they would then substitute for or whether they would enforce agreement is discretionary only and not unenforceable in its on right.

 

Legibility is also an issue but its not a 'term' or 'prescribed' term so not sure here whether court's power to enforce is discretionary here ? I would think its got to be legible but a claims solicitor I was speaking to said court would prob get hold of a similar agreement from creditor and compare it it with illegible one and use discretion - I can see there would be difficulties here - but can also see if on balance of probabilities the agreements can be identified with some degree of certainty e.g. if one or two features can be confirmed that court would enforce -

 

Would be useful to hear on this from anyone who has tried it !

[steve2577]

Wrote to Amex about the legibility of some parts of the copy they sent me. I suspect they were digitised years ago and thy will have to re-construct the bits that are not readable or accept that they cannot.

 

Here is the letter I received regarding this enquiry.

 

[steve2577]

I sent a letter to Ames asking for another copy of the agreement they sent as the first copy was blurred in parts.

 

Got a nice reply as follows Dated 27th Nov refers to my letter of complaint 23rd Nov

 

 

 

 

Next Leter Dated 22nd Dec and refers to Letter Dated 23rd Nov

 

 

 

Just as I was beginning to think how nice and reaonable these people are bang a default notice.

 

Dated 3rd Jan 2010

 

 

 

 

 

Can anyone suggest my next move?

 

Is the default notice valid?

 

 

 

Many Regards

Edited January 24, 2010 by steve2577

[alangee]

I notice that they have changed the wording slightly on their DN's.

 

On your DN they state that the amount to remedy the breach must be received "within fourteen days from the date of service of this Notice of Default". They have added the word service - previous DN's didn't have this - although without an actual date, how are you or they supposed to know when it is to be remedied by?

 

Maybe by adding that word, they are hoping that it will be accepted by DJ's. Also by adding that word they are accepting that their previous DN's are defective.

 

Alan

[steve2577]

Must admit haven't got a clue about DN's ould date of service not be related to the date on the DN?

 

How do you go about challenging these things in Court?

 

I wrote to Amex asking fo a legible copy of the agreement and they responded by saying they will get back to me, which of course they have via the DN but I am still waiting for a legible copy and they still need to respond to my complaint. Can they issue a DN whilst the matter is still in dispute.

 

Steve

Edited January 24, 2010 by steve2577

[nick20045]

Must admit haven't got a clue about DN's ould date of service not be related to the date on the DN?

 

How do you go about challenging these things in Court?

 

I wrote to Amex asking fo a legible copy of the agreement and they responded by saying they will get back to me, which of course they have via the DN but I am still waiting for a legible copy and they still need to respond to my complaint. Can they issue a DN whilst the matter is still in dispute.

 

Steve

Give a person a knife and if they do not use it properly they are bound to cut themselves at some time.

 

Too many people read templates and think "I will just fire one of these off". Does not work like that. Do research first, find out, ask, look at different scenarios and then decide what to do.

 

You fired off a s.78 application. Did you bother reading it properly? It says 12+2 days to respond.

 

So they sent you an unlegible copy. You fired off a letter putting the account in default until they send you a legible copy. You quoted to them the applicable law. Did you understand what you had sent?

 

They replied back regarding the complaint. It means they have acknowledged there is a problem. IF there was NO problem then they would have explained something to you or gave you some excuse. They did NOT do this. Did you read their letter properly and understand it?

 

They then wrote again saying they were still investigating. Did you write back saying something like "I accept you are doing investigations. Until then the account stays in dispute/default"? No you did not. You thought they were being very nice. Did you understand the contents of their letter? No you did not. Why? Because in NONE of the letters did they argue that, once you had told them the account was in default, it was not. Hence by means of acquiescence (you can google to see what it means. By itself it can be challenged but let us make it more secure in the letter).

 

As soon as the 12+2 days went up you should have filed a letter of dispute. Have a read of the letter of dispute and understand what the contents is. Not just post it and hope for the best.

 

Sorry to say this but one of the reasons I do not go around posting on many threads is that it seems too many members just want to fire off template letters thinking "Ohhhhhhhh it is a proven thing. Stick with the proven letters and system". Banks are not monkeys. They catch up. They get a template letter, then tomorrow one the same (just a different name). Then next day another two will arrive. Both the same. What are they going to do? Modify and take action.

 

Right lets see if can save this one.............

 

Draft letter. As usual fee free to edit/omit/delete/ignore/take parts of as deemed fit. I am not saying you should send this letter (most of all read the contents of it and understand the contents). It is roughly what I will have sent. Also at least recorded mail if not registered mail.

 

 

Dear Sirs

 

Your ref:

 

On the xx/xx/2009 I made a s.78 application. This was answered by your goodselves on the 23rd November with sending me an unlegible copy of a document.

 

On the xx/xx/2009 I wrote to you. In that letter I drew to your attention that the copy was unlegible and cannot be ascertained as to whether or not it is a true copy of an executed agreement. Further more, I drew to your attention as to what the The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557 states. I attach a copy of that letter for easy reference.

 

In that letter I drew to your attention that as you had not fully complied with my lawfully made application I was placing the account into default.

 

On the 22nd December 2009, you replied to my letter notifying me that you were making investigations. I wish to draw to your attention that in no part of your letter did you contest the contents of my letter, being the part where the above mentioned account had been placed into default.

 

This would mean that by your acquiescence you agreed with me that, as of the xx/xx/xxxx the above mentioned account was in default.

 

On the xx/xx/xxxx I again wrote to you regarding the s.78 application and reminded you that I was still waiting for a legible copy of the executed agreement.

 

You replied to me on the xx/xx/xxxx stating that you were still making investigations.

 

Here you have me a bit confused as you give 3 letters (two by one person signing and another person signing saying that they were making investigations) but you only refer to two letters being sent by you. So have to possibly add something like "I again wrote to you................. and you replied on the xx/xx/xxxx stating you are still making investigations". Make sure you refer to all of their three letters.

 

As it can be seen, in all three letters that you sent me, all of them confirm that:

 

1: I was sent an illegible copy of an agreement

2: I had a right to file a complaint asking for a better copy

3: In all three letters you apologised for the problem and stated that you were making investigations

4: In none of the letters was the matter that the account had been placed into default was ever questioned, remarked about or challenged

5: It has now been a considerable length of time since you started acting on my request and it seems you cannot solve the matter.

 

Please note that I still wait for a true legible copy of the executed agreement. Furthermore, please note that the default (as referred to in my letter of the xx/xx/xxxx) is still in place.

 

As you have failed to provide me with a legible true copy of the executed agreement, even though you have been promising to provide me with this now for the last xx months, I believe that section 78 of the Consumer Credit Act 1974 subsection 6 applies and the account is in dispute.

 

You are requested to note that should you wish to state that there is no default then I claim estoppel by acquiescence.

 

I wait for your kind reply and hopefully a true legible copy of the agreement.

 

Yours

[steve2577]

Nick

 

Amex second letter dated 22nd Dec (I think they have a policy to reply even in an automated format within 4 weeks) says we refer to our letter dated 27th Novemeber this was an update on the initial complaint.

 

One question

 

The date of the Default Notice was 3rd Jan (sun) and they state that I have 14 days from this date I wasn't around for a couple of days so not sure if this arrived 6th or 7th Jan so would it be correct 12 + 2 for a Default Notice?

 

 

I hear what you says and letter going tomorrow.

 

 

 

 

 

 

 

Steve

Edited January 24, 2010 by steve2577

[nick20045]

Nick

 

Amex second letter dated 22nd Dec (I think they have a policy to reply even in an automated format within 4 weeks) says we refer to our letter dated 27th Novemeber this was an update on the initial complaint.

 

One question on the default Notice they state before date shown but there isn't any date shown (other than the date of the Default Notice being 4th Jan 2010)

 

I hear what you says and letter going tomorrow.

 

Steve

Once again, read, disect what is posted and IF do not understand then ask. But read, understand and do not assume.

 

Fair enough you have asked. BUT did you notice there is NO reference to the Default Notice in the letter?????? Whereas in another of your threads I refer to the Default Notice, in this one I did not.

 

Why? As I told you learn to disect. So homework for you although you have still not done the other homework given yet. Send me a pm as to why you think I did not refer to the DN in the letter.

 

You say you have 14 cards and your missus has 6. I am NOT going to sort out all of your cards. You have to learn to disect, read, understand, if need be ask for advise.............. but you should learn to:

a: Fend for yourself

b: Know what is happening and most importantly WHY it is happening so that if it goes to Court you know the answers

 

It is, if you want to call it, brutal training. But it is better to learn, understand and know what is happening, how the chess pieces are being played, what is the move intended to do, how to counter attack possible next move, how to manouver the situation to your advantage..........

 

Notice........... I have replied to a few of your threads. A lot of information is similar BUT I have edited it, changed it, modified it to suit that particular card/problem.

 

On the other hand......... you can be (what I term) a parrot. The best way is to make it that it does not even have to go to Court BUT IF it goes to Court then the least thing you want is: "I was told this. I sent this. Oops Your Honour I do not know anything or what the heck I am on about".

 

Learn to disect and especially their letters and how you can manipulate what is being said to your use. (e.g. Read how I manipulated the fact that they never contest the default now they cannot claim the account is not in default. You say they automatically send a letter. BUT that letter is signed by a Human being and hence liability is now there on that person who signed it).

[nick20045]

Incidentally, Law of Property Act 1925 ONLY applies to when the debt is assigned i.e. sold on to a third party.

 

BUT there are ways of arguing that one as well but not yet.

[nick20045]

 

One question

 

The date of the Default Notice was 3rd Jan (sun) and they state that I have 14 days from this date I wasn't around for a couple of days so not sure if this arrived 6th or 7th Jan so would it be correct 12 + 2 for a Default Notice?

 

Steve

12 working days + 2 is for CCA application

 

14 straight days if for a DN

 

Question: Was it received by recorded or registered mail? Simple answer: Yes or No. Make sure you give right answer.

Edited January 24, 2010 by nick20045
Done some editing to make it more clear.

[steve2577]

Ok done the letter and amended it with ref to the flow of documents

 

On the 29th Oct 2009 I made an informal request for a copy of my agreement. This was answered by you on the 9th Nov 2009.

 

As I didn’t receive what I asked for I resubmitted a formal request making an s.78 application on 23/11/2009. You responded with a letter on the 27/11/2009 that the complaint would be looked into.

 

I wrote again on the 15/12/2009 clarifying in more detail why the documents you sent were not acceptable one of my main points being the ineligibility of what I received.

Furthermore, I drew to your attention as to what the The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557 states. I attach a copy of that letter for easy reference.

 

In that letter I drew to your attention that as you had not fully complied with my lawfully made application the account was still in dispute.

 

On the 22/12/2009, you wrote again and provided an update to your letter dated 27/11/2009 notifying me that you were still making investigations and stated that if there was a further delay you would write again within 4 weeks. I wish to draw to your attention that in no part of your letter did you contest the contents of my letter, being the part where the above mentioned account had been placed into default.

 

This would mean that by your acquiescence you agreed with me that, as of the 14/12/2009 (23rd Nov + 12+2 Days) the above mentioned account was in default.

 

In your letter dated 22/12/2009 you stated that you would write to me with the outcome within 4 weeks. The 4 weeks have passed and I have not received a reply.

 

As it can be seen, in all the letters that you sent me, all of them confirm that:

 

1: I was sent an illegible copy of an agreement

2: I had a right to file a complaint asking for a better copy

3: In all letters you apologised for the problem and stated that you were making investigations

4: In none of the letters was the matter that the account had been placed into default was ever questioned, remarked about or challenged

5: It has now been a considerable length of time since you started acting on my request and it seems you cannot solve the matter.

 

Please note that I still wait for a true legible copy of the executed agreement. Furthermore, please note that the default (as referred to in my letter of the 23/11/2009) is still in place.

 

As you have failed to provide me with a legible true copy of the executed agreement, even though you have been promising to provide me with an answer to my complaint for the last 2 months, I believe that section 78 of the Consumer Credit Act 1974 subsection 6 applies and the account is in dispute.

 

You are requested to note that should you wish to state that there is no default then I claim estoppel by acquiescence.

 

I wait for your kind reply and hopefully a true legible copy of the agreement.

[nick20045]

The sentence "You responded with a letter on the 27/11/2009 that the complaint would be looked into."

 

I would change the word "complaint" to "matter". In the letter it will mean same thing but in a possible future litigation it can mean different things. You did not make a complaint. You made a s.78 application. If they want to refer to it as a complaint it is up to them. A s.78 application drawing their attention that the copy they had sent was not legible and making an official s.78 application is not a complaint.

[nick20045]

Before you post the letter is this a CCA as per 1974 or is it a CCA as per 2006? I have just noticed you have 2006 at the top.

[steve2577]

Thanks will change

 

Yes it is 74 not 2006 that was the thread name I called it when I was completely clueless

 

 

 

 

 

 

 

 

Steve