Amex CC 2006 Enforcability

[nick20045]

when I was completely clueless

 

 

Steve

:lol:

[gh2008]

Can they issue a DN whilst the matter is still in dispute.

 

In a word yes

 

Unfortunately, just because you have made an S78 request and they are now in default of that request, there is no provision in the Act that stops the requirement for you to make payments.

 

Also (in relation to your letter) in not complying fully with the request, AMEX are in default and the account is in dispute

 

The Agreement is, by the looks of it enforceable at court (although there is the question of legibility), as for the DN - IMHO that would be down to the 'Judges Lottery'

 

Whilst AMEX is in default they cannot enforce the agreement, the current thinking amongst judges is that AMEX are still allowed to issue a claim so be prepared for that, in fact they could take it to court and turn up with a legible copy and unless you get a very good judge they will get away with it.

 

Sorry this isn't very positive

[nick20045]

In a word yes

 

Unfortunately, just because you have made an S78 request and they are now in default of that request, there is no provision in the Act that stops the requirement for you to make payments.

 

Says otherwise to me.

78.—(1) The creditor under a regulated agreement for running-account credit, within

the prescribed period after receiving a request in writing to that effect from the debtor

and payment of a fee of 15 new pence, shall give the debtor a copy of the executed

agreement (if any) and of any other document referred to in it, together with a

statement signed by or on behalf of the creditor showing, according to the information

to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the

creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw

further on the account, will later become payable under the agreement by the

debtor to the creditor.

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

and

(b) if the default continues for one month he commits an offence.

 

Hence

 

The reason for issuing a DN is to enforce the agreement. IF a bank is in default s.78 subsection 6 says they cannot enforce which makes it an unlawfully issued DN.

[gh2008]

Says otherwise to me.

Unfortunately it would not be you or I behind the desk in court .....

 

The reason for issuing a DN is to enforce the agreement. IF a bank is in default s.78 subsection 6 says they cannot enforce which makes it an unlawfully issued DN.

There is now precedent, as you know, that says that issuing a DN is not enforcement.

[nick20045]

Section 88

 

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes Operative only on breach of some other provision, but

if the breach of that other provision is not duly remedied or compensation demanded under subsection (I) is not duly paid, or (where no requirement is made under subsection ~1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

Plus:

 

1. Application form and not agreement.

 

2. Says "Not providing all ................ processing your application".

 

3: Right hand side top looks like it says "Personal information".

 

4: The part where it refers to Missing payments is very vague. All it says is about effecting credit but does not say anything about Assignment or Passing information on to third parties such as CRAs.

 

5: Data protection reference same as 4 above.

 

6: Front page very very unreadable but it does say "Is this your correct Nectar account number? If not please correct below". Now to me that says that it was something that was sent with a card so............ maybe that may change things a bit. But it is still very unreadable.

 

7: Default notice (already referred to I think on page 1) says 14 days from date of service. As said, when was the date of service? It could have been delayed in Christmas post. What I would think will be the crunch is the date on the Termination Notice.

[nick20045]

And from Carey v HSBC

 

100 It is also said that the requirement that the Option A notices and Option B statements must be "easily legible" implies current information only, because it emphasises the importance of the legibility of this information. That does not follow either. In fact Reg. 2 says that all copies must be easily legible. If they are under Reg. 7 now to consist of or contain only the terms as varied, one wonders why easy legibility is repeated. There might be more need for it if (as the Claimants contend) these are additional materials to be supplied. But on any view this feature does not advance the Defendants' case.

[gh2008]

Section 88

 

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes Operative only on breach of some other provision, but

if the breach of that other provision is not duly remedied or compensation demanded under subsection (I) is not duly paid, or (where no requirement is made under subsection ~1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

and the relevance of this is ......

Plus:

 

1. Application form and not agreement.

 

2. Says "Not providing all ................ processing your application".

 

3: Right hand side top looks like it says "Personal information".

 

4: The part where it refers to Missing payments is very vague. All it says is about effecting credit but does not say anything about Assignment or Passing information on to third parties such as CRAs.

 

5: Data protection reference same as 4 above.

 

6: Front page very very unreadable but it does say "Is this your correct Nectar account number? If not please correct below". Now to me that says that it was something that was sent with a card so............ maybe that may change things a bit. But it is still very unreadable.

 

7: Default notice (already referred to I think on page 1) says 14 days from date of service. As said, when was the date of service? It could have been delayed in Christmas post. What I would think will be the crunch is the date on the Termination Notice.

ok, in order

1. been done to death - if there is a signed document with the prescribed terms within it and those terms are correct then it is enforceable

 

2,3,4,5 & 6. don't really matter in a case of enforceability ..... they're not a prescribed term

 

7. I would say that if the creditor left it for a few weeks and the debtor did not contact them to remedy the breach it could easily be said that they had enough time. This would be a very dodgy point to base you whole case on .....

[gh2008]

And from Carey v HSBC

 

100 It is also said that the requirement that the Option A notices and Option B statements must be "easily legible" implies current information only, because it emphasises the importance of the legibility of this information. That does not follow either. In fact Reg. 2 says that all copies must be easily legible. If they are under Reg. 7 now to consist of or contain only the terms as varied, one wonders why easy legibility is repeated. There might be more need for it if (as the Claimants contend) these are additional materials to be supplied. But on any view this feature does not advance the Defendants' case.

 

I would again question the relevance of this, the options referred to were the modfied terms only not the originals.

[nick20045]

I would again question the relevance of this, the options referred to were the modfied terms only not the originals.

Ok. Read it like this:

 

100 In fact Reg. 2 says that all copies must be easily legible.

 

And the judge keeps on repeating about "easily legible". The OP got copies that un legible.

[nick20045]

and the relevance of this is ......

 

ok, in order

1. been done to death - if there is a signed document with the prescribed terms within it and those terms are correct then it is enforceable As long as those terms are legible and can be read to see if they are enforceable or not.

 

2,3,4,5 & 6. don't really matter in a case of enforceability ..... they're not a prescribed term

 

7. I would say that if the creditor left it for a few weeks and the debtor did not contact them to remedy the breach it could easily be said that they had enough time. This would be a very dodgy point to base you whole case on .....

4 and 5 do not apply to enforcing the agreement in court BUT they do apply to assigment if it was to happen later on.

 

7: A DN is a statutory document. There is no obligation as to how it is sent i.e. second class post, first class post, recorded, registered or even by courier or personally served. BUT, the rule is "Post does get lost in transit and even Proof of Posting is not Proof of delivery". Hence, the bank can claim that they posted on so and so date. The OP can claim that it was never received or although it is datemarked say 2nd January it was only received on the 24th January. Not the first time my postman dropped one of my letters at some wrong door and I got it a few days later. The bank should know that unless they have served a DN then they cannot terminate and enforce. This is one of the reasons why it should be the bank that issues any court claim and not the defendant. Then the onus falls on the Claimant to prove that proper service was made of the DN.

[nick20045]

Read it like this (with the parts that do not apply removed)

 

Section 88

 

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes Operative only on breach of some other provision, if the breach of that other provision is not duly remedied if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

Disecting it:

 

Section 88

 

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes Operative only on breach of some other provision,

 

That says: The default notice must NOT treat as a breach failure to comply with a provision because that breach happened because of another breach of some other provision.

 

Hence, the bank failed to comply and send a legible copy. They breached the s.78 application. (This is the "which becomes operative only on breach of some other provision"). Therefore, the default notice must NOT treat the stopping of payments as the account went into default and dispute as a breach. IF the bank had complied with the application then the OP would not have defaulted (giving him the benefit of the doubt). He defaulted based on the bank defaulting first.

 

 

if the breach of that other provision is not duly remedied if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

And that means that if the "original breach" (i.e. the breach of that other provision - in this case the bank failing to comply with the s.78 application) is not remedied (fixed) in the 7 days (now will be 14 days) and the 7 days have lapsed, the creditor must treat that breach (by the bank failing to comply) and section 87(1) shall not apply (which means that now the DN is ineffective).

 

Basically s.88 makes a provision that if for example the bank does something contrary to the agreement, it cannot take action by issuing a DN IF the debtor puts the bank into dispute until the bank (or creditor) rectifies that fault (breach).

 

That is how I understand it. Maybe somebody wants to correct me?

[gh2008]

If you re-read s88 you will see that it assumes a DN has already been served.

 

What it actually says IMHO is that they only need to send a DN for the 1st breach, any subsequent breaches of the terms resulting from the first ('unremedied' breach) empower the creditor without further DNs. (s87(1) shall not apply - i.e. need to send a DN)

 

I think it would be wise to remember that if you are not sure of something - check on another thread (you can just start a new one specifically about that section in the legal forum and you will get an answer pretty quickly) before giving what could be read as 'proven advice'

[gh2008]

Then the onus falls on the Claimant to prove that proper service was made of the DN.

 

The courts use the rule of 'balance of probabilities' and that says that a document sent is deemed served after x days (where that number of days is varied according to the method used)

 

Unfortunately these arguments do not stand up in court

[nick20045]

 

What it actually says IMHO is that they only need to send a DN for the 1st breach, any subsequent breaches of the terms resulting from the first ('unremedied' breach) empower the creditor without further DNs. (s87(1) shall not apply - i.e. need to send a DN)

So effectively you are saying that when the legislation was made, Francis Bennion made provisions that if there is no copy of the agreement the Creditor cannot enforce the agreement. On the other hand, he then made s.88 to read (according to you) in such a way that.............

 

IF the debtor then enforces the right to cease payment as the creditor has failed to supply a copy of the agreement, the creditor can then issue a DN (let us say it is issued fully compliant),notify the debtor that (irrespective of the fact that the act says the creditor cannot enforce) UNLESS the debtor pays what the bank wants, it will terminate the agreement and seek enforcement for termination. (Which is basically the basis of issuing a DN).

 

S.88 is there to protect the debtor from abuse by the creditor and so that the DN cannot be used unlawfully (as a back door for enforcement). IF you understand it correctly taking an example:

 

a s.78 application is made. The bank fails to send a legible copy. The debtor enforces s.78(6). The bank can issue a DN providing that they correct their default within 14 day. In which case then, as long as they have corrected their default, the DN will take effect BUT if they have not corrected their default then the DN does not apply.

 

Effectively what you are saying is that, when a s.77/s.78 application is made, the bank might as well send a letter saying:

 

We do not care about your application and you are not getting any copy of the agreement. IF you stop payment, we will issue you with a Default Notice and unless you pay we will then terminate the agreement and you have to pay the full lot or we will take you to Court. And if anything else happens, the DN that will have been issued will apply to the other contravention as well.

 

That is one heck of an interpretation.

 

As to "Proof of posting is not proof of delivery" sorry but it comes down to the rules of probability. AND if I am owed say something like £10,000, I want that money, I KNOW that there are forums that advise how to check re faulty DNs etc etc, it IS MY RESPONSIBILITY to make sure it is done correctly. And take my word, IF I need to challenge re a DN the first thing I will write is that I want "Strict proof of service". The bank can claim posted whatever posting BUT my contention will be "For wanting £10,000 you did not protect yourself and not pay £1.14 instead of just a normal stamp????????? Whereas I, a simple layman have sent you all my letters by recorded mail??????"

Edited January 27, 2010 by nick20045

[the_shadow]

As to "Proof of posting is not proof of delivery" sorry but it comes down to the rules of probability. AND if I am owed say something like £10,000, I want that money, I KNOW that there are forums that advise how to check re faulty DNs etc etc, it IS MY RESPONSIBILITY to make sure it is done correctly. And take my word, IF I need to challenge re a DN the first thing I will write is that I want "Strict proof of service". The bank can claim posted whatever posting BUT my contention will be "For wanting £10,000 you did not protect yourself and not pay £1.14 instead of just a normal stamp????????? Whereas I, a simple layman have sent you all my letters by recorded mail??????"

 

A nice idea and I do like the argument... will squirrell away for a future hopefully not needed court case

 

S.

[nick20045]

A nice idea and I do like the argument... will squirrell away for a future hopefully not needed court case

 

S.

Thanks. But it is common logic sense. I have been in Court (both Civil and Magistrates) and for a start when in Court if you are "pitched" against a solicitor (or even a barrister) and you are LiP you are allowed a certain amount of leniency by the judge.

 

The matter for most people (in my opinion) is to do research, know what you are talking about, be up to date, put yourself forward as being honest/straightforward and always look the judge in the eye.

 

Sending letters to banks not knowing what is what is of no good. You should be able to understand what was in that template (and if not sure ask). You should know or if not know ask and learn how the jigsaw works. You are NOT expected to understand the law, know the law and interpret the law the same as a solicitor or a judge but you should be able to by simple reasoning and logic. And most of all you must NOT show the judge you are trying to avoid your indebitness but as they have defaulted you are simply exercising your rights under the law.

 

Read some test cases. Where the judge made comments how the defendant came over as honest, truthful and answered promptly/without hesitation and straightforwardly most of the times the testimony of the defendant was believe more then what the claimant said. And that is what the judge goes for.

[gh2008]

IF the debtor then enforces the right to cease payment as the creditor has failed to supply a copy of the agreement

 

Ah, now that's where I see the problem - the debtor, under the Act, does not have automatically have that right - there is a right however, to make an application to court for an order under S140 (as they are in default the relationship is deemed unfair) to withhold payments or anything else you might fancy - it's then up to the court to decide if it's a reasonable request.

 

the creditor can then issue a DN (let us say it is issued fully compliant),notify the debtor that (irrespective of the fact that the act says the creditor cannot enforce) UNLESS the debtor pays what the bank wants, it will terminate the agreement and seek enforcement for termination. (Which is basically the basis of issuing a DN).

Again the courts have held that issuing of a DN and/or a claim in the court is NOT enforcement. They have said that enforcement happens at the moment of judgement.

 

Effectively what you are saying is that, when a s.77/s.78 application is made, the bank might as well send a letter saying:

 

We do not care about your application and you are not getting any copy of the agreement. IF you stop payment, we will issue you with a Default Notice and unless you pay we will then terminate the agreement and you have to pay the full lot or we will take you to Court. And if anything else happens, the DN that will have been issued will apply to the other contravention as well.

That would certainly seem to be the current thinking in Court

 

As to "Proof of posting is not proof of delivery" sorry but it comes down to the rules of probability.

 

I think the Royal Mail quotes something like 99.999% delivery rate - I'll let you work out which way the balance of probability lies.

 

Can I suggest that if we want to continue the discussion on S88 and what's deemed service that we ask the site team to move these posts into another thread to avoid distracting the OP from what's really important in their thread

[gh2008]

Thanks. But it is common logic sense. I have been in Court (both Civil and Magistrates) and for a start when in Court if you are "pitched" against a solicitor (or even a barrister) and you are LiP you are allowed a certain amount of leniency by the judge.

 

The matter for most people (in my opinion) is to do research, know what you are talking about, be up to date, put yourself forward as being honest/straightforward and always look the judge in the eye.

 

Sending letters to banks not knowing what is what is of no good. You should be able to understand what was in that template (and if not sure ask). You should know or if not know ask and learn how the jigsaw works. You are NOT expected to understand the law, know the law and interpret the law the same as a solicitor or a judge but you should be able to by simple reasoning and logic. And most of all you must NOT show the judge you are trying to avoid your indebitness but as they have defaulted you are simply exercising your rights under the law.

 

Read some test cases. Where the judge made comments how the defendant came over as honest, truthful and answered promptly/without hesitation and straightforwardly most of the times the testimony of the defendant was believe more then what the claimant said. And that is what the judge goes for.

 

If only that were true all the time

 

"There are a number of cases like this one coming up, up and down the country, where debtors subscribing to forums to write of debts, are using technicalities and CCA 1974 to write off debts. I am not sure that the defendant has done the same or not. I am not sure whether the purpose of the CCA 1974 was supposed to be used in the manner that is being used by debtors who find themselves with mountain of debts ."

 

This was said BEFORE the trial had started proper and, if you read the thread, was not even close to what the case was about !!!

 

HUMBLEMAN vs HFC-WEIGHTMANS COURT ACTION

 

Shakespeare62 - v - a NastyBank

 

I'm not trying to get into a fight - I just think it is *really* important to see both sides and more importantly know what is going on inside court on these issues at the moment.

[MandM]

 

Can I suggest that if we want to continue the discussion on S88 and what's deemed service that we ask the site team to move these posts into another thread to avoid distracting the OP from what's really important in their thread

 

Wouldn't mind a link to that myself.

 

M

[gh2008]

I've asked for the recent posts to be split off, so we can continue and the OP can get advice about their case without getting lost in the 'noise'

 

Can we hang fire until it happens (or not) and then carry on?

[nick20045]

Thank you very much but NO the points stay on here so that the OP can make up his mind.

 

And as to what you are saying then I take it that you might as well tell the site team that half their templates are wrong and should be removed. e.g. The template for putting the account into dispute and the contents of it. You might as well tell the site team that for example, they must remove the template about "severe dispute" (if a DCA writes to you claiming money when an account is in dispute). Heck! Just take half the templates and ask the site team to remove them.

 

As to the comment of applying to the Court for a S140 horray! I have to applaud you. Effectively every senior person on here is saying "Let the bank be the claimant and you be the defendant" and you are advocating otherwise. Every senior person on here is quoting the Carey v HSBC as being a good example that the debtor should not issue proceedings but you are saying otherwise. Good for you.

 

Wonder......... does the OFT itself say that nothing can be done until a dispute is resolved? I take it you know better. And how do you create a dispute? I suggest you have a good read of the template.

 

As to the cases you have referred to it has always been claimed that it is "The Judge lottery". In Humblemans case it can be appealed due to the bias of the Judge who made it very clear that she was biased.

 

To be honest, I am not interested in discussing anything else with you. Just post what you want.

 

And final word............. can a debtor stop payments if the creditor goes into default? Yes he/she can. Why? Because I have one where the bank confirmed, in writing, that they had torn up the original agreement. When I challenged them to take me to Court to a judicial review they confirmed in writing that they cannot because they do not have a copy of the agreement. Ohhhhhhhh I love them cos sometimes they get some DCA to write to me to try and collect. And funny enough, as soon as I get the letter I reply by sending a copy of the letter from the bank saying "No copy of the contract" then I claim "Dispute" and............ they all close their file.

[nick20045]

I've asked for the recent posts to be split off, so we can continue and the OP can get advice about their case without getting lost in the 'noise'

 

Can we hang fire until it happens (or not) and then carry on?

Once again, I have no interest in disputing and even indeed discussing anything with you. And no, once again I believe the points should stay on here considering on what course of action the OP may wish to take regarding arguing his case. In fact, technically speaking, you have no right to ask for the posts to be split. It is the OP that has control over the thread as it is the OP that started it and not you.

[nick20045]

From http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case-62.html#post2729382

 

post 1226

 

Spot on as now each case is to be viewed on its own merit.

 

Its made it more difficult for an agreement to be classed as irremediably unenforceable due to the non production of a s.78 request so whilst its in dispute you can stop paying they can still ask for money, they can report to CRA's but they can't take you to court or instruct a DCA to do this, and whilst in dispute you can't automatically go for s.140 either as they may find the agreement in the future!!

 

Miss sold PPI or terms would be a case that would be acceptable for s.140.

 

My understanding is if the agreement is varied under reg 7 they have to produce a copy of the original which many wont be able to do so this could help get any litigation for these types of sitaution chucked out at A.Q stage.

 

I think a lot more people will have just to accept the credit file and wait the 6 years

 

Edit: Totally contradicting what you have been advocating.

Edited January 27, 2010 by nick20045
Added Edit:

[nick20045]

For the OP (Steve). Suggest that as you have 14 cards you have a good read of this. (I am about to start reading it myself). Might find some info handy.

 

 

 

The OFT is conducting a consultation on draft guidance on a creditor's duty to give information to debtors and the consequences of non-compliance on a creditor's ability to enforce.

This consultation is focused on sections 77/78/79 of the Consumer Credit Act 1974 which cover a creditor's duty to give information to debtors under fixed-term, running account, and hire agreements. It clarifies the latest OFT and court understanding of these sections following a recent High Court judgment on the matters, and sets out the OFT's views of relevant practices which would be considered to be unfair under section 25 of the Consumer Credit Act 1974 - the 'fitness test'.

The OFT's decision to issue guidance at this time has primarily resulted from our concerns that debtors are being misled as to the meaning and impact of sections 77 to 79 and that some creditors appear not to understand the nature and extent of their obligations under these sections.

This consultation is aimed at those with an interest in the relevant stages of the lending process as conducted by consumer credit businesses. This includes creditors and debt collection companies, as well as claims management companies and consumer advisors. It also includes large and small businesses, trade associations, professional bodies, regulators, enforcement agencies, consumer organisations and borrower groups.

 

 

http://www.oft.gov.uk/shared_oft/consultations/OFT1175con.pdf

[nick20045]

@ Steve

 

From OFT Guidelines (although I know that you have referred to this before in one of your letters).

 

Legibility of any copy

2.29 Any copy must be easily legible, as must any copy of notices of

variation or statement of the terms of the agreement as varied.17 If the

creditor or owner has a poor quality photocopy or microfiche, it should

retype it or repopulate a template of the relevant agreement form with

the details of the specific agreement, so that the copy sent can be easily

read.

 

Hence even the OFT is now pressing that the copy must be easily legible.

 

Edit: 5.9 Finally, while non-compliance with an information request is no longer a

criminal offence, non-compliance with an information request remains a

'domestic infringement' under the Enterprise Act 2002, and enforcement proceedings could be issued under that Act29 if considered appropriate to

do so taking account of the conduct of the creditor or owner.

Edited January 27, 2010 by nick20045
Added Edit for notes