Amex Claimform - Amex Credit card dEbt

[dp77]

I have a question regarding CPR 31.14, which I hope someone will be able to help with.

 

I am defending a claim issued in the County Court by Amex, I acknowledged service and have until October 19th to file my defence. As soon as I received the claim I fired off a CPR 31.14 to Amex's solicitors, asking to see a copy of the agreement they cited in the Particulars of Claim.

 

I got a letter back, within the 7 day time frame, saying they needed more time to 'verify the document' and that they would grant me a further '14 days from the date the document is provided' to file my defence. All of which conforms to CPR 31.14

 

With the deadline for submitting my defence coming up, my concern is this;

how does the Court know the claimant has agreed to extend this deadline?

Do I need to notify the Court, if so how?

 

 

Or is the Claimant obliged to do that? What I don't want to happen is that I don't submit my defence on time, because I am waiting for this document & the extra 14 days, and then judgement is entered against me by default.

 

I know that sounds a little paranoid but I do not trust Amex's solicitors at all, with good reason.

 

Thanks in advance for any help

[42man]

Continue as usual and stick to the timeframes.......don't take anything seriously from them...

[letitbeme]

Hi,

 

submit a holding defence, and state that the claimant has not fully complied with your CPR 31.14 request and you are therefore unable to submit a fully particularised defence as matters stand.

 

Also request the courts permission to submit an amended defence when the claimant complies with CPR 31.14.

Hope this helps!

LIBM

[dp77]

 

I'm in a similar situation, LIBM..What do you mean by a holding defence? Does anybody have any wording to put on the court form?

 

PL

 

Hey Pigland; One thing worth remembering is that with CPR 31.14 you can only ask for documents referred to by the claimant in the Particulars of Claim, so make sure your holding defence (embarrassed defence) reflects that.

[dp77]

1) According to notes in a SAR I was served a Default Notice in June 2004, this on a credit agreement regulated by the Consumer Credit Act (1974). I understand that at this time the required period given to remedy was 7 days, not 14. Can someone confirm this? When did it change to 14 days? And does anyone have a link to the 7 day legislation?

 

2) I have a current case against me, in the county court. The claimant has not yet responded to my defence and 28 days have elapsed, I called the Court for a status update and was told "an automatic stay" had been put on the case. What does the claimant have to do to remove the stay? Will I be notified if this happens?

 

Thanks in advance for any assistance

[supasnooper]

1/. It changed to 14 Days for Default Notices posted from 19/12/2006.

 

2/. The claimant has to pay the Allocation Questionnaire fees to the Court to remove the stay.

You'll know when the claimant has done this when you receive the AQ paperwork.

[dp77]

Okay, thanks very much for your help.

 

I am defending a case brought against me by a credit card company, the claim was issued via the CCBC, in Northampton. The Particulars of Claim state;

 

By an Agreement in writing dated and made between the Claimant and Defendant, the Defendant was issued a charge card for the purchase of goods and services. The Agreement was an exempt agreement under the Consumer Credit (Exempt Agreements) Order 1989 (as amended)........

 

There is no date given for this 'Agreement' and the remainder of the PoC is equally vague. My response was to file an embarrassed defence and send the claimant a CPR 31.14 request.

 

In response to the 31.14 the claimant sent me a copy of an agreement which clearly states it is for a 'Credit Card' and that the agreement is bound by 'The Consumer Credit Act 1974'. The case is currently on an automatic stay, waiting for the claimant to file an allocation questionnaire, which I am assuming they will do shortly. Given that the PoC contain a fundamental error what is my best tactic here? Apply for a strike out? Wait?

 

I believe the claimant can apply to change to the PoC, but unless I give my permission they will need a Judge's consent to do so. Will a Judge allow a change in what is a fundamental mistake? In fact the entire basis of the claimant's case is misrepresented. Does the defendant get to have a say in the Judge's decision?

[DonkeyB]

Inaccurate and misleading PoC is a complete defence, though they would almost certainly apply to amend it and say it was an admin error - you are right there. I think it is down to the judge to give permission for a change, but I may be wrong.

 

Was the 'agreement' they sent you compliant. ie. prescribed terms? When was it signed - pre-1989?

[dp77]

The copy agreement sent appears compliant, but until I have physically seen it I am reserving judgement - it was signed in 2001.

 

What I'd really like to know is if I will be notified when/if the claimant applies to change the PoC, or will I just be informed of the Judge's decision?

 

My view is that such a substantive change, to PoC which are incredibly vague anyway, is unfair and should not be allowed. It puts me at a severe disadvantage if the claimant changes the (only) document they are basing their claim on, many months after the claim was initiated.

[palomino]

Let me guess - this sounds like a Capital Bank Preference Account.

[dp77]

Let me guess - this sounds like a Capital Bank Preference Account.

 

No, solicitors representing a credit card company, which makes the (Particulars of) claim that the alleged agreement was "exempt" even harder to fathom.

[DonkeyB]

Even better for your case then, except that a change of the PoC would, I think, be forthcoming. Anyone else got any idea whether dp77 can oppose a change to the PoC?

[dp77]

The CPR say the claimant requires the defendant's agreement (!) to change the PoC or permission from a Judge - not hard to guess which route is the more likely.

 

What I'm wondering is if the process of asking permission from a Judge would involve the defendant, or if the defendant just gets informed of the decision?

 

Seems perilously close to abuse of process.

[blueboy987]

I'd say your chances of opposing any change to the PoC are pretty much zero.

 

Most likely outcome is that the judge will let them change the PoC or that their claim will proceed based on the witness statement which they'll probably file at some point. When this happens the judge should automatically allow you 3-4 weeks to submit a new defence based on the updated claim.

 

I wouldn't even bother trying to fight any changes, the only important thing is to ensure you can submit a new defence.

[dp77]

I'd say your chances of opposing any change to the PoC are pretty much zero.

 

So you don't think it's worth filing for a strike out, on the basis the alleged agreement does not exist?

 

My assumption that the PoC contain an error is just that, an assumption. The claim was issued by a firm of solicitors who claim to be "experts in debt management and collection", maybe they genuinely believe they have an exempt agreement, surely I am entitled to respond to the case as presented?

[blueboy987]

My claim was struck out after they failed to file the AQ, they then applied to have it re-instated which the judge allowed. They tried a couple of times to amend the PoC without following the correct procedure. I didn't oppose the amendments but I did make an application for the court to confirm which of the PoC's was valid. This resulted in the judge allowing them to file an amended PoC, which they finally got correct.

 

I'm not saying you shouldn't apply for a strike out, just that there is a good chance that eventually the court will allow the claim to proceed with an amended PoC - or based on their witness statement.

 

I took the approach of just sitting back and waiting to see what they did next and then acting accordingly. It suits me to drag it out as long as possible, so this seemed the best course of action for me.

[dp77]

This is section 172(1) of the Consumer Credit Act 1974

 

172.—(1) A statement by a creditor or owner is binding on him if given under—

section 77(1),

section 78(1),

section 79(1),

section 97(1),

 

This is my situation; I sent a s78(1) request to a firm of solicitors, acting for a creditor. They send me back an application form with no terms or conditions on it. I write back, very politely, and point out that what they have sent me cannot be the full agreement. They write to me insisting that what they have sent me is a 'True Copy' of my original agreement and it contains all the necessary terms. I write back, again very politely, and point out the terms that are missing, ie the prescribed terms. I get no reply.

 

Some months later the same firm of solicitors begin court action. I send them a request to see a copy of my agreement under CPR 31.14 and hey presto, my application form now has terms&conditions printed on the back.

 

I am aware that technically a creditor should not attempt to enforce the a debt if they are in breach of s78(1). However s172(1) is pretty robustly worded, "A statement made by a creditor is binding on him if given under s78(1)". What I'm wondering about is not the legality of attempting enforcement, I'm more interested in the effect of the statement given under s78(1) being binding on the creditor.

 

As I received not one, not two, but three letters from the solicitor insisting the single sheet application form they sent me was a complete and 'true copy' and discharged their obligations under s78(1), is using s172(1) now a complete defence?

 

My thinking is that if a statement given under s78(1) is binding, and the creditor gives a written statement (3 times) that what they have supplied is all there is, then that is the agreement the creditor has to stick with. So the fact they have subsequently come up with some terms&conditions on the back has no bearing on the case, as those term&conditions are effectively inadmissible. The creditor being bound by what he gave as the true copy under s78(1).

 

Wildly optimistic? Worth a shot? Opinions?

[the_shadow]

This was posted by Enron on my citicard thread

 

Confirmed its s172 Consumer Credit Act 1974, that makes statements in response to s78(1) CCA binding.

 

However this statement can be overturned if it goes to court. That said I don't believe that would happen, its simply a case that these letters are being sent out as routine to avoid having to comply with the s78(1) request - essentially if you have an open account, they still have a duty to provide a copy of the executed agreement and not just Terms & Conditions otherwise s78(6) CCA is active.

 

172.—(1) A statement by a creditor or owner is binding on him if given under—

section 77(1),

section 78(1),

section 79(1),

section 97(1),

89

section 107(1)©,

section 108(1)©, or

section 109(1)©.

(2) Where a trader—

(a) gives a customer a notice in compliance with section 103(1)(b), or

(b) gives a customer a notice under section 103(1) asserting that the customer is

not indebted to him under an agreement,

the notice is binding on the trader.

(3) Where in proceedings before any court—

(a) it is sought to reply on a statement or notice given as mentioned in subsection

(1) or (2), and

(b) the statement or notice is shown to be incorrect, the court may direct such

relief (if any) to be given to the creditor or owner from the operation of

subsection (1) or (2) as appears to the court to be just.

 

Down to the judge I'd say

 

S.

[dp77]

Thanks shadow.

 

I am increasingly wary of anything that is left to the judge, but certainly worth putting in the defence I would think.

[hungrybear]

I think you are confusing court action and enforcement a bit, they are not the same. Two things really, is the application form with the terms on the back enforceable? and you have grounds to doubt it is a true copy of the original because of what they previously sent so you can ask that the original be available in court.

 

And in answer to your first question, I belive 'wildly optimistic' is the best answer I can give.

 

They have a compliant DN I take it?

[dp77]

No default notice, I don't have a copy and they have not produced one, or mentioned one in the PoC. Although the account was terminated 5 years ago, so I doubt anyone has a copy. I paid a dmp every month, on time, then they took me court (after the episode described in my first post).

[stitchedup]

On agree with the worry about things being left to Judges, shafted and then shafted again in my case.

[B3rty]

You need to go for the PTs being before the signature as per amended SI 1983 1553 ( 2004) .....this could be counter argued but its a great defence that you could present in a strong manner i.e ...It must have been the will of parliament for the PTs to be on the same page otherwise why amened?

 

Also do the terms match the front page i.e do they have a date or any info that dates them different from the front side so you can show a cut and paste job....

 

I just recently had a 2003 application showing 01 terms as the reverse...however going back through old threads clicking on the paper clip symbol to view the attachments I managed to find a couple of agreements dated later in 01 and 02 so obviously when I signed the application in 03 the date would have been 02 at the earliest which means the 01 terms are from something else...

[dp77]

You need to go for the PTs being before the signature as per amended SI 1983 1553 ( 2004) .....this could be counter argued but its a great defence that you could present in a strong manner i.e ...It must have been the will of parliament for the PTs to be on the same page otherwise why amened?

 

Not heard that one before - have a pdf of the above (SI 1983 1553 ( 2004)), do you know which section?

 

No dates on the front page, or on the T&C's on the reverse - I think this particular company is a little too cute for that. I've seen the document purported to be the 'original application' first hand, my opinion is that it's a colour photocopy. All the hand written sections and my signature are not pen ink, but photocopy black.

 

Clearly I cannot prove that, not without a forensic examination anyway, and I am reluctant to make that claim in front of a judge, who is likely to be of the opinion that financial institutions don't do that kind of thing and how dare I even suggest it.

 

I know there can be a certain paranoia displayed by some posters (a very small minority) as to the depths that creditors / claimants will sink to but believe me what I saw was a colour photocopy. A good one for sure, but the handwritten parts were not written by pen, they were printed.

Edited November 28, 2009 by dp77

[someone_else]

We brought up s.172 against Link after they had repeatedly told us the two pages of the agreement they could supply were the full properly executed agreement, the argument they tried to use against us was the Rankines - once agreement is terminated they don't need to supply under s77-79 so there statement has no bearing.

 

Though our case was slightly different - as we never requested the agreement under s77-79, but under CPR and it was Link who responded with a cover letter under s77-79, and Link also never bothered to turn up to the hearing.

 

I would point out in your defence that it would be unjust of the court to give them relief from their binding statement and produce each letter they have sent claiming the initial copies were true copies.

 

I would also bring up the issue of them producing two versions of the agreement whilst claiming both are true copies.

 

The main problem you have is you'll be at the mercy of the judge - your sucess may depend on what the original one looks like if they produce it to the court, if you aren't on the Small Claims Track you may want to see about inspecting the original contract.

 

I'd double check the terms and conditions and see if you can find anything on them to show they aren't the original T&C or they don't go with the front of the agreement.