Amex Claimform - Amex Credit card dEbt

[dp77]

once agreement is terminated they don't need to supply under s77-79 so there statement has no bearing.

 

Don't think the claimant can use that argument, I sent a letter asking if they wanted the £1 payment (due for a s78(1) request) and they replied saying yes, they wanted the £1. So clearly what they sent me was in response to a S78(1) request, and I still have all the letters.

[B3rty]

Its form and content section 2 give it a good read could be useful because it gives the layout of the agreement and interestingly says this must come before the signature .....use this in conjunction with case law Wilson v Hurstanger and Wilson v FCT and its a pretty good argument.....

 

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)/[2 Form

and content of regulated consumer credit agreements]

[2 Form and content of regulated consumer credit agreements]

[(1) Subject to paragraphs (2) and (9) below, documents embodying regulated consumer credit agreements (other than

modifying agreements) shall contain the information set out in Column 2 of Schedule 1 to these Regulations in so far as it

relates to the type of agreement referred to in Column 1.

(2) Where any information about financial and related particulars set out in paragraphs 9 to 11 of Schedule 1 to these

Regulations cannot be exactly ascertained by the creditor, estimated information based on the assumptions referred to in

paragraph 10 of that Schedule, where applicable, and otherwise such assumptions as the creditor may reasonably make in

all the circumstances of the case and a statement of the assumptions made shall be included in documents embodying

regulated consumer credit agreements.

(3) Subject to paragraph (9) below, documents embodying regulated consumer credit agreements, other than

agreements of the description specified in the Schedule to the Consumer Credit (Notices of Cancellation Rights)

(Exemptions) Regulations 1983 in relation to which there are no charges forming part of the total charge for credit (in this

regulation referred to as "exempted agreements"), shall contain statements of the protection and remedies available to

debtors under the Act, in the Form numbered in Column 1 of Part 1 of Schedule 2 to these Regulations and set out in

Column 3, in so far as they relate to the type of agreement referred to in Column 2.

(4) Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and

separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain,

shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below--

(a) the nature of the agreement as set out in paragraph 1 of Schedule 1 to these Regulations;

(b) the parties to the agreement as set out in paragraph 2 of Schedule 1 to these Regulations;

[© under the heading "Key Financial Information", the financial and related particulars set out in paragraphs 6 to

8B, 11 to 14 and 15 to 17 of Schedule 1 to these Regulations;]

(d) under the heading "Other Financial Information", the financial and related particulars set out in paragraphs 3 to 5,

9, 10, 14A and 18 to 19A of Schedule 1 to these regulations;

(e) under the heading "Key Information"--

(i) the information set out in paragraphs 20 to 24 of Schedule 1 to these Regulations; and

(ii) the statements of protection and remedies set out in Schedule 2 to these Regulations; and

(f) the signature box and, where applicable, the separate box required by paragraph (7)(b) below;

 

and such information, statements of protection and remedies, signature and separate boxes shall be shown together as a whole and shall not be preceded by any information apart from trade names, logos or the reference number of the agreement or interspersed with any other information or wording apart from subtotals of total amounts and cross references to the terms of the agreement.

[dp77]

Thanks B3rty, looks very useful.

 

I have a feeling, in the end, a lot of it comes down to the individual Judge. But certainly the more ammunition I have, the better.

[hungrybear]

Has the case been allocated yet? If not use cpr 18 to demand a copy of the default notice. IT is not possible to bring court action on a regulated agreement without a DN and given that you were terminated then no DN = unlawful rescission. This would be my approach - it is an absolute defence.

[dp77]

No, case has not been allocated. It is stayed at the moment, waiting for the claimant.

 

There is a mistake in the PoC, they have stated it's an unregulated, exempt agreement (for a charge card), when it's clearly a credit card regulated by the CCA 1974. I assume it was a cut'n'paste job by an office clerk who wasn't paying attention. So the claimant will have to correct that, which should lead to additional time for me to file.

 

I will certainly give CPR 18 a shot, thanks for the tip.

 

Quick question; As the claimant has not mentioned default (or termination) in the PoC, is CPR 18 good for requesting a default notice? I'm learning as I go here, like most of us I suspect!

 

Okay, I see CPR 18 is for documents requested via the court, could you point me toward the right form to submit to the court?

[hungrybear]

 

I know what you mean about learning as you go, I'm posting here as a 'fountain of knowledge' because I read up on cpr requests last week - two weeks ago I hadn,t a clue. All the cpr stuff is on the ministry of silly walks (I mean justice, sorry) website. Here's the link to cpr 18:

 

PART 18 - FURTHER INFORMATION - Ministry of Justice

 

CPR 18 is absolutely right for exactly the reason it is not in POC but may / will be materially relevent to the case. Given that you cannot begin court proceedings on a regulated agreement without a DN, that would be a pretty good reason!

 

 

nd here is a template letter, obviously you may need to adjust:

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION CPR 18

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

 

Send by Recorded Delivery.

 

wow I must be like fisik or something - you asked for it as I was typing it. You don't send the letter to the court you send it to the muppets. You only involve the court if they haven't replied positively in 14 days. And it is not sufficient to fob you off with 'we have requested the documents from our client' - they started the court s!"tstorm, they should have all the paperwork to habd esp. stuff like the agreement/DN/TN and NOA.

[dp77]

Okay, thanks hungrybear.

 

Some of that stuff I already have, or is not applicable, so I think I will amend the list of documents requested to those I need; Default Notice and details of fees / collection charges. Although g), h), and i) look horribly time consuming, so perhaps I might add those for good measure.

 

Will pop that off on Monday. Thanks again for the advice.

[dp77]

I have a situation where the opposition, (the usual, a well resourced financial institution) are making noises about costs being awarded against me. At the moment it is an indirect threat, but it's definitely there. I imagine they want to put me off defending my case. Can anyone tell me what the situation is with costs?

 

My case is small claims (under 5k). I read through some of the CPR, but could not find a definitive answer.

[mkb]

Have a look at CPR Rule 27.14:

 

PART 27 - THE SMALL CLAIMS TRACK - Ministry of Justice

 

Regardless of what the claimant may say, costs are at the discretion of the judge & IMO, they are using this as an intimidation factor.

[dp77]

Thanks, interesting reading but not conclusive. As with a lot of this it seems that the Judge's discretion is the great unpredictable here, if he decides you have been "unreasonable" then there appears no limit to what costs can be added.

[dp77]

Being taken to court by well known, extremely aggressive credit card company. Using CPR I went to view what they claimed was my "original" agreement, it is 100% definitely a reconstituted copy. The original had no terms on it, this one does. My signature is machine printed, not hand written. It's a good copy, but obviously a copy nonetheless. I said nothing at the time.

 

I need advice on the best way to handle this. I thought the claimant would not dare produce a copy like this in court, but they have - and they won on it too. When the defendant started to question the authenticity of the document, the Judge warned him to "be very careful".

 

A 'document expert', even if one can be found who is prepared to say a supposedly reputable - extremely wealthy and therefore litigious - company has faked a document, needs to get the thing into a lab to be sure it is faked. Even if I engineer a second CPR viewing, on another pretext, or turn up with a document expert in court, this expert would only be able to cast doubt with a brief physical inspection, being certain requires a full laboratory examination. Is a Judge likely to grant that?

 

Nor can I see the claimant saying "Sure, please take this away and prove it's fake......"

 

Believe me, this document was 100% machine printed. Given the ease and technical sophistication of desktop printing I am sure this is something we are going to see a lot more of (especially if rumours of the Manchester test case are true). So what to do, any constructive advice?

 

Given that reconstituted agreements have been (if rumours are true) declared unenforceable I really don't want to lose to a mock up.

 

Does anyone have any experience of producing an expert, document examiner, in court, or at a CPR inspection?

 

Any suggestions?

[Docman]

If you had an original 'agreement' without the terms, why didn't you disclose it (as you are supposed to do) and then produce it in court, thus proving the other side had manufactured evidence in court proceedings?

[dp77]

I don't have a copy, otherwise I would do as you suggest.

 

The only option I have, as far as I can see, is to call the other side's bluff and question the authenticity of the document. I have no doubt it is printed, none whatsoever. My hesitance on how best to proceed is based not on doubting the document is fake, but on anticipating how a Judge might react.

 

It's no secret a lot of County Court Judge's are not exactly sympathetic to the consumer, and when a poster from this site found himself in court with one of these 'reconstituted' agreements he was basically told to be quiet, after he asked a few questions concerning authenticity. He did not have a document expert with him though, and had not been to inspect the document before proceedings, so he did not know what he would be facing. I do.

[supasnooper]

Although Judges are meant to be consistent, it does not always turn out like that.

The majority of Judges are knowlegable on Consumer Credit law and it always helps if you have done your homework and present your case proficiently.

 

How come you don't have a copy of the agreement ?

 

Did you request one under CPR 18 or CPR 31.14 ?

 

Did you request one at the AQ stage ?

 

Did you SAR the original creditor ?

[herbie171]

Did you Subject Access Request the original creditor this is standard come on.

Even more so if you believed the agreement was doctored

I had Cabot hounding me so I did a SAR with them and the original creditor.

Original creditor came up with an unsigned agreement Cabot came up with a load of Bulls***t.

[dp77]

A claim was issued against me in the Northampton Bulk Centre, last September. The PoC were all over the place, no specific details, wrong type of agreement listed, etc. I submitted an embarrassed defence, heard nothing for months, last I heard from Northampton was that the case had been stayed.

 

On Saturday I received, from the claimant, a service copy of their application For Summary Judgment, which has now been listed for hearing at a local court.

 

I called the court today and asked why I had received nothing from them, I was told in some cases it is left to the claimant to serve the documents on the defendant - is that correct?

 

The claimant can make an application for summary judgement and I don't get to know about it until the hearing is set?

[supasnooper]

Yep, they can do this.

 

What you need to do is get a Witness Statement together to rebut their claim.

 

Also get a skeleton argument together and serve it on them on the day just before the hearing.

 

I'd get your costs sorted out as well, and again, serve them on the day.

 

Remember an SJ hearing is not allocated to a track so it is deemed multi-track with unlimited costs

 

As a guide, a Gough Square barrister (which the claimant may well use) will charge around £1000 + VAT for compiling and attending an SJ, together with the solicitors costs at about £150.00; so smack them hard for costs plus disbursements.

[dp77]

Thanks for that.

 

What, broadly, is the difference between a Witness Statement and a skeleton argument? The Witness Statement has to be sent to the claimant before the hearing, is that correct?

 

Sorry, I'm sure these are obvious questions but the whole process is something of a mystery to me.

[supasnooper]

then you'll need to do some research.

 

Here's some links to get you started -

 

 

 

 

 

pt2537's guide to Witness Statement format

 

 

pt2537's guide to Witness Statement content

 

 

Witness Statement Exhibit Cover

 

BRW's post on What to pack for a day in court

[dp77]

Okay, cheers.

 

I notice you mentioned Gough Street barristers - (the claimant in this case is represented by a firm of Solicitors, who will doubtless be instructing a barrister) - I could really do with asking an expert a few direct questions about my case, who would you recommend?

 

I know this forum is a substitute for asking an expert, but my case seems (to me at least!) complex and I'd like to spend an hour going through it with someone knowledgeable about the court process, consumer law and the best defence to submit. Who would you recommend for that?

 

I've no problem representing myself in court, nor with doing lots of research, but I need a kick start on some fundamentals (not in the fundamentals!) from an expert.

[lilly white]

Thanks for that.

 

What, broadly, is the difference between a Witness Statement and a skeleton argument? The Witness Statement has to be sent to the claimant before the hearing, is that correct?

 

A witness statment is what you will say in court

A skeleton argument is basic ie without the meat

 

Sorry, I'm sure these are obvious questions but the whole process is something of a mystery to me.

 

 

Hope this helps

[dp77]

Thank you lilly white

 

I have a specific question. My opinion is that the claimant's application for summary judgement will fail. Is it best to submit a witness statement to the Court now, asking for the SJ hearing to be dismissed? Or is it better to turn up for the hearing and argue on the day that the claimant does not have a case for SJ?

 

I have a date for a Summary Judgment hearing.

 

What is the process (if there is one for a SJ) to ask the Judge to direct the opposition to bring a copy of the DN and the original credit agreement to the hearing?

 

Potted History, I will be as brief as I can.

 

Debt is with credit card company, who are represented by a firm of solicitors. Account defaulted 6 years ago, since when I have been paying what I could afford each month, always paid, never missed, am still paying now. Last year I was asked to increase these payments, or they would seek a charge on my property. I couldn't afford an increase, and I was shocked to discover a credit card debt could lead to the loss of my home.

 

After research on here I decided to ask for a copy of the original agreement, which is from 2001. I sent a s78 request, they sent me back a front page application, no T&C's. I pointed out it couldn't be an agreement under the CCA 1974 as it had no T&C's. They insisted it was a proper agreement, I said I would subject access request their client, to resolve this. I duly did and included in the paperwork I was eventually sent was the same front page application, again no T&C's.

 

I heard nothing more from the Solicitors, until last Sept when I received a claim issued via the bulk centre. The claim stated the agreement they were basing the claim on was "unregulated" and gave no date.

 

I filed an embarrassed defence and sent a CPR 31.14 to see the original agreement. I went to the solicitors office and was shown a double sided document, which now had T&C's on the back. I have reason to believe this was a reconstituted copy (I'll expand on this later), they told me in writing it was "the original".

 

Before Xmas I offered 50% to settle, they declined (I have a serious illness, I don't need the stress). I head nothing further until last week when I got a Notice that they had applied for Summary Judgement against me and a date has been set for a hearing at my local court.

 

They are claiming more money than was in the PoC (they seem confused as to how much the debt actually is, I have statements showing different amounts due). So that's where I am.

 

My real concern here is that a SJ hearing is trackless and I could get hit with massive costs. So I'm trying to work out what best to do.

 

There is a case going through the courts now with an identical application form to mine, from the same time, the claimant presented it as "original", the defendant disputed this and it has been sent to an expert, his report is due soon.

 

I'm not disputing the debt exists, I never have, I'm disputing their right to take my home with a reconstituted agreement (and no DN).

 

I think I can put up a good argument against summary judgement but like I say my fear is not losing as such, it is the costs. What would people advise as my next step?

[CBR600F]

Is this a joint owned property?

[dp77]

No, sole owned.

[postggj]

If They Have Not Complied With Your S77 To S79 Request

 

Thats A Defence In Its Self

 

Thats Why They Try For A Summary Judgement

 

Who Is The Dca The Sols Are Acting For