Amex/Mischcon V Me

[banker_rhymes_with]

Hello Rhodium!

 

Look at it like this, you went off the Reservation and blew a raspberry at one of the friendly natives...so one of the CAG Guard Dogs bit you in the bum.

 

Whilst I understand that you are annoyed at that, the fact remains that we're all on the same side. No matter how much your bum hurts, you will never get the Guard Dog to stand on its back legs and do tricks.

 

Likewise, telling the CAG Guards themselves that they were not doing their job properly while you were still off-Reservation is no solution to the overall CAG Security problem.

 

So, if you are here to help, then stay and help. I'll stay out of your way and will promise not to bite you in the bum again.

 

Then we can all get back to what we do best, and you can get on with what you came here to do.

 

So, when you later see Martin3030 holding a Troll by the ankles with me sinking my fangs into the Troll's throat, you will smile and know in your heart why this level of protection is so necessary.

 

Cheers,

BRW

[rhodium78]

LOOOOOOOOOOOOOOOOOOL! Disarming by humour... You know what, when you are not insulting, you do have a dry sense of humour that can be appreciated. I understand that you have a security problem, just don't let it bite any more innocents otherwise you might end up in the list mentioned in the Dangerous Dogs Act. That is my feeble attempt at humour so if it didn't make you smile, I apologise.

 

Ok, I am outa here. Good luck to the OP.

[freethemice]

All this fuss about been called a trolls and a dca. It shouldn't even be offensive. One is a ugly beast that lurks under bridges waiting for vunerable and frail people to attack and the other is a character in The Billy Goats Gruff story!

 

Okay ladies - handbags down now and let's get this thread back on track.

 

There is still a faulty Default Notice here and thanks to all this shouting and name calling little advice on the best way to present it.

 

In my Nationwide case I followed Diddydickys advice and sent a letter to the other side informing them of the defective nature of the Default Notice. I believe this was a major reason why they discontinued but do take on board Rhodiums point that this might just be because they didn't want to pursue me for the arrears in a small claims case where costs would be very limited.

 

So the obvious question to ask is what was the amount of arrears at the point of termination after the defective default notice was issued and what percentage of the balance does this represent?

 

Defence of set-off

 

16.6

 

Where a defendant –

(a) contends he is entitled to money from the claimant; and

 

(b) relies on this as a defence to the whole or part of the claim,

 

the contention may be included in the defence and set off against the claim, whether or not it is also a Part 20 claim.

 

Surely a set off defence you would need a partial admission to liability unless the amount of arrears now due is less than the consequential loss for repudiation of contract.

 

 

In that case you would presumably have to start your defence with all the reasons why the court shouldn't exercise its powers of enforcement - (prescribed terms missing ect) and then move on.

Regardless of that pleaded above if the court does decide that enforcement action is justified ... Set off argument.

 

Can one of you ego filled guard dogs spell this out for us loyal and faithful servants!

Edited July 4, 2010 by freethemice

[Blondie40]

Blondie, thanks for your input and I hope you stay under the Amex radar for the next two years so you don't have to deal with these so called 'people'.

 

Yes, my experience is similar to yours. I love they ask me for permission to alter the POCs so, effectively, it will state 'even if none of the documents we present to the court are valid, will the nice DJ declare the arrangement enforceable'.

 

Good luck and thanks again for your post.

 

Martel

 

You'll probably find they will claim (in their witness statement and skeleton argument) that the card carrier supplied to you - which your credit card was attached - will have been a copy of the executed agreement. Hence the amended POC.

 

B40

[Rhia]

Hello Blondie yes that is what many of them claim. I had the same argument thrown at me with MBNA who said the "dynamic card carrier" (how a bit of cardboard can be dynamic I'll never know but leave them to their fantasies) was the actual copy of the agreement.

[Martel]

Hi Blondie and Rhia,

 

Did they actually produce the 'dynamic' (!) card carrier or a representation of it? If so, did it fly in court?

 

MX

[Rhia]

OK! Yes it did fly in court with this particular judge but there are issues that I was not aware of that I am now.

 

They produced a "representation" accompanied by a WS from someone in their data collection dept or whatever who said this was the actual document.

 

Of course now I know that this lad who stood up and said it was a proper job was far too young to have even been employed by them at the time.

 

On this aspect you need to really nail them on production of original docs. When did the person giving the statement join the company. Did he/she actually personally oversee the carrier being stored on microfiche etc.

 

I'll keep an eye out for a thread I spotted which really examined all thses points - if anyone else can help Martel and knows where it is feel free to beat me to it. You need to undermine the whole credibility of their statements.

 

Of course there is another possible angle here. If the original agreement is duff how can just issuing new t&cs (which is what the carrier is) make an unenforceable agreement enforceable? Await various brains to come along and fillet this particular donkey.

[Monty2007]

Fair do but so did the others which I won't repeat here as people can dig them out for themselves. The point is that does not make me a DCA employee or a Creditor seeking to misinform people. That is what really got me...

 

So why do you create threads like this?

 

------------------------

 

Hi all,

 

Just a quick question, I have taken out a loan and now want to cancel it. The thing is that this creditor does not charge interest but an "arrangement fee". Can I expect to pay the whole loan amount including this arrangement fee or just the amount I borrowed. It stated that there is an administration fee of £25.00 to cancel the agreement so I am scared that I will have to pay the loan amount, the arrangement fee and now the administration fee to top it all off.... Tried reading the consumer credit act and the oft website but to be honest, i am clueless and didnt understand any of it....

 

Any advice would be very helpful.

 

Regards,

 

Eve

----------------

 

From:

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/249937-cancellation-loan-rebate.html

 

Quite frankly, you have brought much of this on yourself by playing silly games.

[Guest Mrs Hobbit]

Filleting the donkey indeed Rhia. The body language of that particular witness said it all. I also remember those on the Cabot legal team got fidgety and started taking something from a briefcase and was told by another Cabot member not to pull it out....how come we saw it all happen, but the Judge didn't. I hope Cabot can recall that day, because it is one I will never forget. MBNA wont forget it either.

As you say, you have to challenge every bit of the WS and check the credentials of the witness while they are giving evidence.

[Blondie40]

Hi Blondie and Rhia,

 

Did they actually produce the 'dynamic' (!) card carrier or a representation of it? If so, did it fly in court?

 

MX

 

Martel

 

Never got too see anything in court as they discontinued few days before trial.

 

However much was made of the card carrier in their witness statement and how this would have contained all the required prescribed terms. Said witness statement then went on to say that they did not keep a copy of the card carrier sent as (big mistake by them I think here) this would have been supplied to the defendant with the credit card attached and would have been produced by an external supplier.

 

B40

[Blondie40]

Also the card carrier I have from them does not have an APR rate shown, just the standard variable rates for Cash Withdrawls, Purchases and Balance Transfers.

 

So don't think that contains the required prescribed terms.

[Docman]

Well, after reading the posts over the last 48 hours or so, I think the crews at Cabot, Howard Cohen, and of course HFO/Roxburghe must be thinking that all their Christmas's, birthdays and everything else have come at once.

 

Martin, BRW, rhodium, (and all the others throwing around ) have called into question reputations and aroud a few inappropriate names. But the result that your contributions and those of other good members of CAG have been lost.

 

I know everyone will feel some loss of pride/ego or whatever but when ordinary people are suffering real distress because of debt and the activities of DCAs such squabbles are ridiculous. Would all posters (and those who have left or been kicked out come to their senses and remember we are here to help each other and many more who need real help.

[Martel]

Also the card carrier I have from them does not have an APR rate shown, just the standard variable rates for Cash Withdrawls, Purchases and Balance Transfers.

 

So don't think that contains the required prescribed terms.

 

Thanks, Blondie.

 

I'm assuming that the card carrier you have is a 'representation'?

[Rhia]

However much was made of the card carrier in their witness statement and how this would have contained all the required prescribed terms. Said witness statement then went on to say that they did not keep a copy of the card carrier sent as (big mistake by them I think here) this would have been supplied to the defendant with the credit card attached and would have been produced by an external supplier.

 

 

Yes Blondie - MBNA also made a big issue about this and, at the time, we hadn't anticipated this happening. I never did get to inspect the carrier so do not know if it had all the prescribed terms but Martel I would suggest you need to get a copy (if you haven't already).

 

If it's a copy does it have the prescribed terms? The if a copy you need to question the archiving and then, of course, if there is no original agreement which was signed by you which contains the prescribed terms then just sending a card carrier does not rectify that situation.

In which case we get to s61(1) of the CCA (and the SI regulations) and if the terms aren't there on the original and then again on the card carrier and it's pre 2007 then it is wholly unenforceable under s127(3).

 

Just pick everything apart, bit by bit. I will re-read your thread again when I get time and see if there is anything I can pick up I can help you with.

[Martel]

Yes Blondie - MBNA also made a big issue about this and, at the time, we hadn't anticipated this happening. I never did get to inspect the carrier so do not know if it had all the prescribed terms but Martel I would suggest you need to get a copy (if you haven't already).

 

If it's a copy does it have the prescribed terms? The if a copy you need to question the archiving and then, of course, if there is no original agreement which was signed by you which contains the prescribed terms then just sending a card carrier does not rectify that situation.

In which case we get to s61(1) of the CCA (and the SI regulations) and if the terms aren't there on the original and then again on the card carrier and it's pre 2007 then it is wholly unenforceable under s127(3).

 

Just pick everything apart, bit by bit. I will re-read your thread again when I get time and see if there is anything I can pick up I can help you with.

 

Rhia, thank you. Will look again at their disclosure list. Should I send a CPR request?

[Rhia]

Yes. It is in Fast Track isn't it? If so you get full disclosure. Send a Part 18 request to them and ask for any documents you need or are missing. You have to set it out in a specific way and allow them 14 days (it doesn't say 14 days but it does say you have to give them reasonable time and I think 14 days is reasonable). Or it could be Part 31 depending on which docs you need but read Pt's excellent thread on this

http://www.consumeractiongroup.co.uk/forum/legal-issues/255329-cpr-18-cpr-31-a.html

 

 

Without looking back at the thread have you also sent a full Subject Access Request to AMEX? If not do that without delay. PM if you need a bit of help with either.

[JonCris]

Let me get this straight according to the book of rhododendron those counsel acting for creditors who lost only did so because they were incompetent not because they tried to hoodwink the debtor the court & failed

[Martel]

Yes. It is in Fast Track isn't it? If so you get full disclosure. Send a Part 18 request to them and ask for any documents you need or are missing. You have to set it out in a specific way and allow them 14 days (it doesn't say 14 days but it does say you have to give them reasonable time and I think 14 days is reasonable). Or it could be Part 31 depending on which docs you need but read Pt's excellent thread on this

http://www.consumeractiongroup.co.uk/forum/legal-issues/255329-cpr-18-cpr-31-a.html

 

 

Without looking back at the thread have you also sent a full Subject Access Request to AMEX? If not do that without delay. PM if you need a bit of help with either.

 

The claim has been re-allocated to Multi Track. Supasnooper has suggested in a previous post to send a CPR 31.14 request. I SAR'd Newman's ages ago.

 

Thanks for your help!

 

Martel

[freethemice]

Martel

this would have been supplied to the defendant with the credit card attached and would have been produced by an external supplier.

 

B40

I would go for a cpr31.15 request to inspect all the documents named in the claimants poc's. Would be a day out for you if they do comply and if they don't then you resend and then seek a court order for compliance.

 

How about also looking at a notice to adimit facts.

"Do you admit that prescribed terms would have been on a card carrier sent after the signing of the document that binds the parties to an agreement?"

"Do you admit any card carrier alleged to be supplied would have been produced by an external supplier and so would be out of your control?"

 

If you are dealing with an application and the agreement comes later then surely section 59 comes into play and the agreement is void. When you look at the application form if there was no place for the creditor to sign, then it was not intended to become an agreement.

59

 

.—(1) An agreement is void if, and to the extent that, it purports to bind a person to

 

enter as debtor or hirer into a prospective regulated agreement.

(2) Regulations may exclude from the operation of subsection (1) agreements such

 

 

as are described in the regulations.

 

 

Also, once cpr requests have been issued, bear in mind cpr 31.21 for any document you have applied to inspect without compliance.

 

A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.

Edited July 5, 2010 by freethemice

[Rhia]

Freethemice - yes the Notice to Admit Facts is a very useful tool. Martel go for it. I think FTM's advice is sound. It's here CPR part 32.18 & 19.

 

http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part32.htm#IDA4XKTB

[freethemice]

Sending a letter clearly challenging the authenticity of documents would also be worth considering as if you do not serve notice before the latest day for serving of witness statements you are deemed to have accepted that any document provided by the claimant is authentic.

 

cpr31.29

(1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

 

(2) A notice to prove a document must be served –

(a) by the latest date for serving witness statements; or

 

(b) within 7 days of disclosure of the document, whichever is later.

[Martel]

Thank you, Rhia and FTM....

 

Am a little bit muddled which CPRs I should be sending - 32.18, 32.19, 31.29 (also, earlier a CPR 32.14 was suggested)?

 

Will SAR Amex directly.

[MAGDA]

At least it won't get overlooked, martel!

[Martel]

Sorry!! I don't know what's going on today - it's taken me all morning to even log on to CAG and now SEVEN duplicate messages (have NO idea how that happened!). Major gremlin issue, I guess.

 

I can't figure out how to delete them.

 

Sorry!!!!!

 

PS Hello Guests!!

[MARTIN3030]

It was a software glich.Looks to be sorted now.

I will look at the dup posts you did and sort them.