Amex/Mischcon V Me

[MARTIN3030]

oops - mine posted twice lol.

[Martel]

I thought i was losing my mind. Glad I can blame something else!

[MARTIN3030]

7 deleted then.

Unfortunately it happens from time to time.

Would be appreciated if any of these can be reported.

We can then deal with them.

 

Thanks.

[Martel]

Martin, thank you.

 

And a big hello to our FOUR guests!

[bazaar]

Martin, thank you.

 

And a big hello to our FOUR guests!

 

You didnt have to say hello Four times;)

[Rhia]

My thoughts are:

1. SAR AMEX

2. Sent CPR part 31.15 for full disclosure of all docs

3. And a CPR part 31.29 for notice of admission that they don't have particular documents.

 

It seems a bit belt and braces but this way you will have covered all options. With regard to 31.29 they will have to state categorically if they do not have a document and not just fail to include it.

[Blondie40]

Thanks, Blondie.

 

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

 

Martel

 

No it is in fact the original carrier that the credit card came attached to, for some reason I had kept it. I was really hoping they would produce something in court that as they said "contained all the prescribed terms" only for me to produce the one their external supplier had sent that was completely different. Unfortunately I did not get the chance.

 

Also, may have confused you, but in this particular case was not about an Amex Card - sorry if I gave you that impression.

[Blondie40]

Have Mischcon raised the card carrier yet?

 

This seems to be the Amex/MBNA/Capital One line when their agreements are no good in court. (Funny all the US firms).

[freethemice]

My thoughts are:

1. SAR AMEX

2. Sent CPR part 31.15 for visual inspection of documents mentioned in the poc's

3. And a CPR part 31.29 for notice of admission that they don't have particular documents.

 

It seems a bit belt and braces but this way you will have covered all options. With regard to 31.29 they will have to state categorically if they do not have a document and not just fail to include it.

 

cpr 31.14 would be for copies of the documents mentioned in the poc's

cpr31.15 is for visual inspection of documents mentioned in the claimants particulars of claim (you can ask for a copy when you show up)

cpr 31.18 would be for any document not mentioned in the poc's

 

Your choice which to send for the second one and at it isn't vital to get this perfect you are litigate in person so should be allowed some leeway.

 

Amend as appropriate to your case:

 

 

Date ***todays date***

Your ref: ***On the last letter from claimant***

In the ccBC, ***court name***

Case number ***On Court Papers***

***Claimants name*** v ***your name***

Request under cpr31.15 for visual inspection of documents

This letter as my first request made under CPR 31.15 for the inspection of each of the following documents mentioned in your Particulars of Claim:

 

1 The agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

2 The default notice - I genuinely never received this so was not given the opportunity to remedy the alleged breach.

3 The termination notice - needed to claim the full balance. (if applicable)

4 A full breakdown as to the amount claimed including any late payment, over limit and repaid item fees.

5 Any other documents you intend to rely on in court. It is clear to me that to issue proceedings you and your client should have had ‘at hand’ all the information that was necessary to prove your case.

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested available for me to view within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested inspection of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide inspection of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

If I need copies of documents I agree, in accordance with CPR 31.15© to undertake to be responsible for your reasonable copying costs incurred in complying with this request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

yours faithfully

[freethemice]

Martel

 

No it is in fact the original carrier that the credit card came attached to, for some reason I had kept it. I was really hoping they would produce something in court that as they said "contained all the prescribed terms" only for me to produce the one their external supplier had sent that was completely different. Unfortunately I did not get the chance.

 

Also, may have confused you, but in this particular case was not about an Amex Card - sorry if I gave you that impression.

 

As I understand it the argument with the card carrier is you execute the agreement at this point by your signature on the card. This is why you should destroy your card rather than post it back to the debtor on request.

With online transactions it is possible that you can validly claim you never signed the card and hence make this argument harder for the claimant to prove.

[pt2537]

As I understand it the argument with the card carrier is you execute the agreement at this point by your signature on the card. This is why you should destroy your card rather than post it back to the debtor on request.

With online transactions it is possible that you can validly claim you never signed the card and hence make this argument harder for the claimant to prove.

FTM, your answer may be problematic, please see s 66 CCA 1974

 

 

(2) The debtor accepts a credit-token when— (a)

it is signed, or

 

(b)

a receipt for it is signed, or

 

©

it is first used,

 

 

either by the debtor himself or by a person who, pursuant to the agreement, is authorised by him to use it.

[Martel]

My thoughts are:

1. SAR AMEX

2. Sent CPR part 31.15 for full disclosure of all docs

3. And a CPR part 31.29 for notice of admission that they don't have particular documents.

 

It seems a bit belt and braces but this way you will have covered all options. With regard to 31.29 they will have to state categorically if they do not have a document and not just fail to include it.

 

Thank you, Rhia. You're right - I should cover all my bases.

[Blondie40]

As I understand it the argument with the card carrier is you execute the agreement at this point by your signature on the card. This is why you should destroy your card rather than post it back to the debtor on request.

With online transactions it is possible that you can validly claim you never signed the card and hence make this argument harder for the claimant to prove.

 

FTM

My understanding with regard to the card carriers is they claim that this is a copy of the executed agreement, thereby satisfying

 

CCA 1974 Sec 63 Duty to supply copy of executed agreement;

 

sub sec (4) In the case of a credit-token agreement, a copy under subsection (2) need not be given within the seven days following the making of the agreement if it is given before or at the time when the credit-token is given to the debtor.

[Martel]

cpr 31.14 would be for copies of the documents mentioned in the poc's

cpr31.15 is for visual inspection of documents mentioned in the claimants particulars of claim (you can ask for a copy when you show up)

cpr 31.18 would be for any document not mentioned in the poc's

 

Your choice which to send for the second one and at it isn't vital to get this perfect you are litigate in person so should be allowed some leeway.

 

Amend as appropriate to your case:

 

 

Date ***todays date***

Your ref: ***On the last letter from claimant***

In the ccBC, ***court name***

Case number ***On Court Papers***

***Claimants name*** v ***your name***

Request under cpr31.15 for visual inspection of documents

This letter as my first request made under CPR 31.15 for the inspection of each of the following documents mentioned in your Particulars of Claim:

 

1 The agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

2 The default notice - I genuinely never received this so was not given the opportunity to remedy the alleged breach.

3 The termination notice - needed to claim the full balance. (if applicable)

4 A full breakdown as to the amount claimed including any late payment, over limit and repaid item fees.

5 Any other documents you intend to rely on in court. It is clear to me that to issue proceedings you and your client should have had ‘at hand’ all the information that was necessary to prove your case.

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested available for me to view within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested inspection of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide inspection of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

If I need copies of documents I agree, in accordance with CPR 31.15© to undertake to be responsible for your reasonable copying costs incurred in complying with this request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

yours faithfully

 

FTM,

 

Thanks so much for this....and apologies for being thick but I should be sending an additional CPR? Sorry.....I grasp it and then I don't.

 

 

Many, many thanks,

Martel

[dad]

@PT2537:

 

Paul,

 

Isn't there a difference between 'accepting the credit token' and 'executing the agreement'?

 

It seems to me that credit tokens require a two stage process (1) execution of a credit agreement; after which (2) acceptance of the credit token as per s66, only then is the debtor bound.

 

Dad

[Rhia]

Martel send a 31.15 as Freethemice has set out above in post 184 for visual inspection of all docs used.

 

In addition, send a Notice of Admission 31.29 asking them to admit they don't have the blethering docs.

 

SARs you have in hand.

 

As Freethemice says you are a LiP and some leeway will be given. I never used Part31 when I was in litigation as a greenhorn I wasn't aware but I did issue a Part 18 request. I think the difference is you can ask for any document with Part 18 used in POC or otherwise.

 

This was how I got the sales assignment after numerous requests. My barrister sat with my papers and a sheet of blank paper and noted down every time I had requested the sales assignment (deed of assignment). He couldn't beleive I has asked on almost 40 different occasions (via SAR, letters, emails etc).

 

Dad - your post is interesting as I am sure the original agreement has to be enforceable or whatever they send on a carrier etc won't repair the original damage. Can anyone shed some light on this - it's an important point.

[Guest Mrs Hobbit]

@Rhia, from memory, the use of the credit card means that you have contracted to the agreement.

[Martel]

Martel send a 31.15 as Freethemice has set out above in post 184 for visual inspection of all docs used.

 

In addition, send a Notice of Admission 31.29 asking them to admit they don't have the blethering docs.

 

SARs you have in hand.

 

As Freethemice says you are a LiP and some leeway will be given. I never used Part31 when I was in litigation as a greenhorn I wasn't aware but I did issue a Part 18 request. I think the difference is you can ask for any document with Part 18 used in POC or otherwise.

 

This was how I got the sales assignment after numerous requests. My barrister sat with my papers and a sheet of blank paper and noted down every time I had requested the sales assignment (deed of assignment). He couldn't beleive I has asked on almost 40 different occasions (via SAR, letters, emails etc).

 

Dad - your post is interesting as I am sure the original agreement has to be enforceable or whatever they send on a carrier etc won't repair the original damage. Can anyone shed some light on this - it's an important point.

 

Thanks for the clarification (and you patience!)

[freethemice]

FTM, your answer may be problematic, please see s 66 CCA 1974

 

 

(2) The debtor accepts a credit-token when— (a)

it is signed, or

 

(b)

a receipt for it is signed, or

 

©

it is first used,

 

 

either by the debtor himself or by a person who, pursuant to the agreement, is authorised by him to use it.

 

 

This whole issue is problamatic to us litigate in persons.

I take the point about accepting the credit-token on its first use.

 

So is the current argument they are using in courts that this card carrier is a copy of the executed agreement (where one cannot be found). That this needn't have been a true copy down to the Wakeman judgement and that a copy of this copy will do for enforcement purposes? Then they move on to the reconstruction of what it would have looked like.

 

Leaving us just to fight on authenticity of the documents and the relavance ot the witnesses.

Edited July 6, 2010 by freethemice

[nodefaults2010]

sorry if I am missing something obvious here but how can use of a credit card make a debt enforceable if there is no proof that an agreement was enforceable in the first instance (i.e. correct terms and conditions sent, etc.)??

 

I do not see at all how a separate copy can be deemed to be a true copy, particularly if they do not have a microfiche, etc. of the carrier that was sent. Just having a process in place with an external firm to deliver cards is no guarantee that the correct terms and conditions arrived, nor indeed proof that any even arrived with the card. Incorrect forms are sent all the time in the post (e.g. many of the form letters sent in response to caggers by the incompetent credit firms themselves!)

 

I think they are grasping at straws here but it would be interesting to see how this develops in court cases. I just do not see how it will hold up in court though if argued against effectively enough.

[bazaar]

'I think they are grasping at straws here but it would be interesting to see how this develops in court cases. I just do not see how it will hold up in court though if argued against effectively enough.'

 

And that is the biggest point, it needs to be put across to the judge whats wrong AND put in the statute that applies which makes it wrong.

Of course, youve still got the lottery of judgeworld to contend with as well:rolleyes:

[Guest Mrs Hobbit]

By using the card and making payments on the same, makes it enforceable. I know what the arguments are, but believe me and from experience, the Judges will rule it became enforceable by using the card and making payments. it is a lottery with the Judges, some will bend over to help an LiP, others will just listen to what the learned brethern on the other side tell them. Several of the CFC have had experience with a certain Judge we nicknamed the Hanging Judge and yet there is another Judge we know of who will go away and research what an LiP presents as an argument.

 

It is a point by point scoring system and your arguments have to be stronger than the other side, even then all you need is to have a hanging judge and the game is over for you.

 

CFC were blooded very early in the piece and we learnt how to challenge and what to challenge and the biggest lesson learnt was to go into court with a barrister at your side, then the odds are evened. This is way we have won our cases, we did the leg work for the barrister, he presented the case. the Judge then listens.....

[MAGDA]

By using the card and making payments on the same, makes it enforceable. I know what the arguments are, but believe me and from experience, the Judges will rule it became enforceable by using the card and making payments. it is a lottery with the Judges, some will bend over to help an LiP, others will just listen to what the learned brethern on the other side tell them. Several of the CFC have had experience with a certain Judge we nicknamed the Hanging Judge and yet there is another Judge we know of who will go away and research what an LiP presents as an argument.

 

It is a point by point scoring system and your arguments have to be stronger than the other side, even then all you need is to have a hanging judge and the game is over for you.

 

CFC were blooded very early in the piece and we learnt how to challenge and what to challenge and the biggest lesson learnt was to go into court with a barrister at your side, then the odds are evened. This is way we have won our cases, we did the leg work for the barrister, he presented the case. the Judge then listens.....

 

 

I think you make a good point about legal representation - a lot of the time, no matter how sound your arguments might be, because you aren't legally trained, they are often dismissed. Whereas, if you have a solicitor/barrister on your side the arguments are much more likely to be taken seriously. As LIP's we are supposed to have allowances made for that fact, but in reality, I think judges often despise the person in debt and take the attitude that you must owe the amount being claimed, because the claimant says so.

 

Even more so, in light of recent cases.

 

Magda

[Guest Mrs Hobbit]

Our hanging judge asked the question, 'Have you had a credit card before?' answer was 'yes'. so he retorted 'then you know how it works' and dismissed everything else which was argued.

[MAGDA]

Yes, sounds similar to a judge we once had (at an allocation hearing!) He said, "obviously, you are just trying to get out of paying the debt." This was said, despite the fact that he admitted he hadn't had a chance to properly read the file and wasn't particulary familiar with the case. And who says justice is dead.....

 

Magda