Advantis chasing Amex 'debt'

[dori2o]

The account has been passed to a DCA and full payment has been requested so I think the account has been terminated although I have not received a termination notice.

[dori2o]

Today I have received a letter from AIC, with a 'Compliments' slip and a copy of the application form, exactly the same one that was sent to me earlier (the same one as posted in an earlier thread).

 

AND

 

An application form for an AMERICAN EXPRESS PLATINUM CARD in somebody elses name.

 

It give there address details and their telephone numnber along with their signature. I believe this to be a breach of the DPA.

 

Now I have 2 things to deal with.

 

I assume the reason they have sent me another copy of my application is following my 'this is not an enforceable credit agreement' letter. So, what do I do now, I've just sent a letter in response to HL's letterI received the other day, do I send another 'this is not an enforceable agreement letter', or do I just leave it.

 

Secondly, should I report the Data Protection breach to the ICO, and do I simply return the agreement to AIC and point out their error?

 

Many thanks

[dori2o]

bump

[banker_rhymes_with]

Hello dori2o!

 

The account has been passed to a DCA and full payment has been requested so I think the account has been terminated although I have not received a termination notice.

 

It does sound like your alleged Agreement has been Terminated in that case, but I would keep the invalid Default Notice to yourself for now.

 

For now, just give them all they rope they want to hang themselves with first!

 

If they go ahead and issue a Court Claim for the full Balance, and that Balance was not otherwise due before Termination, then all they can hope to get would be any valid Arrears.

 

For now, just keep saying the alleged Agreement is in Dispute, and let Amex and their motley crew of DCAs and Lawyers thrash themselves into a frenzy.

 

Cheers,

BRW

[dori2o]

Hello dori2o!

 

 

 

It does sound like your alleged Agreement has been Terminated in that case, but I would keep the invalid Default Notice to yourself for now.

 

For now, just give them all they rope they want to hang themselves with first!

 

If they go ahead and issue a Court Claim for the full Balance, and that Balance was not otherwise due before Termination, then all they can hope to get would be any valid Arrears.

 

For now, just keep saying the alleged Agreement is in Dispute, and let Amex and their motley crew of DCAs and Lawyers thrash themselves into a frenzy.

 

Cheers,

BRW

 

BRW, I've seen you quote this before regarding termination of agreements aftre issuing invalid default notices. I'm not sure I understand it but here's how I think it goes.

 

The default notice was for approx £80, so if they have now terminated and the default is invalid, does that mean they are now only entitled to collect £80 and no more?

 

Would that change if they could provide a true agreement?

[dori2o]

bump

[banker_rhymes_with]

Hello Dori20!

 

It's all wrapped up in the Consumer Credit Act 1974.

 

The issue to understand is the Act was created to protect Consumers and not to protect bankers.

 

The assumption being that they were large and sophisticated organisations who were all powerful, and the people they lend to were Consumers who had little or no protection from these organisations.

 

They had an Army of Lawyers, and any Contract you Signed with them was always going to be THEIR Contract and not one you had drawn up.

 

Thus, the Act was to make sure these money grabbing bankers with an Army of Lawyers behaved

 

Fundamentally, the Agreement is a Contract, it's just one that is Regulated by the Act.

 

You Sign an Agreement to borrow money, they Sign it to earn Money from you. The Act is there to make sure you are not seen off senseless from this arrangement, as can and did happen before the Act came into being.

 

Now, bearing in mind that an Agreement is a Contract, the Key issue was that both sides are bound to it. The Act makes sure the Agreement is not one sided.

 

The Act allows you to Pay off what you owe and exit the Agreement, but it does not allow the Creditor to wake up having a Bad Hair Day and elect to exit the Agreement on the back of this.

 

The Act assumes you are an individual, and it assumes the Creditor is a large and sophisticated institution who will live forever.

 

There is no need for them to exit the Agreement whilst you are able to Pay what you owe.

 

Likewise, this means they have no path to exit unless you do not keep to your side of the Agreement.

 

If you mess them around, then the Act does give them a Get Out of Jail Free Card, and it's all wrapped up in s87 and s88 of the Act.

 

If you do not Pay what is owed per Month, then the Creditor is allowed to tell you how naughty you have been via a Default Notice, and in that Notice they can tell you what you can do to fix things. That is usually a Notice to Pay the Arrears, or the Payments that were due that you have missed.

 

If you fail to fix things, then the Act lets them pull out, and s87 gives them the Right to ask you for the whole Balance of what you owe. But the Act says that they do not get to enjoy that unless they issue you with a Warning saying what you must do to fix things (the Default Notice).

 

Assuming they did that, then they can Terminate the Agreement and can ask you for whatever you owed that was not otherwise due.

 

While the Agreement was still live, you only owed what was due, the main Balance was not due, as the Agreement allowed you to Pay that off via Monthly Payments.

 

OK, if you were not well behaved, and failed to Pay them what was due when it was due, and they issued you with a Default Notice to warn you, and you ignored that, then they can Terminate and ask you for the whole lot.

 

HOWEVER, if they screwed the pooch on the Default Notice, and Terminated anyway thinking they had got it right, then they have exited the Agreement UNLAWFULLY.

 

In Military Terms they have jumped out of the Aircraft without a Parachute (the Whole Balance)...instead they have grabbed the Air Stewardesses Make Up Bag (the Arrears).

 

There is NO GOING BACK once they Terminate the Agreement.

 

The default notice was for approx £80, so if they have now terminated and the default is invalid, does that mean they are now only entitled to collect £80 and no more?

 

Yep. Provided they have a valid Agreement, otherwise they can bend over and kiss that £80 goodbye too.

 

Would that change if they could provide a true agreement?

 

Nope. It just means they can claim the £80. I'm sure they will be delighted.

 

I hope this helps.

 

Cheers,

BRW

[dori2o]

Today I have received a letter from AIC, with a 'Compliments' slip and a copy of the application form, exactly the same one that was sent to me earlier (the same one as posted in an earlier thread).

 

AND

 

An application form for an AMERICAN EXPRESS PLATINUM CARD in somebody elses name.

 

It give there address details and their telephone numnber along with their signature. I believe this to be a breach of the Data Protection Act.

 

Now I have 2 things to deal with.

 

I assume the reason they have sent me another copy of my application is following my 'this is not an enforceable credit agreement' letter. So, what do I do now, I've just sent a letter in response to HL's letterI received the other day, do I send another 'this is not an enforceable agreement letter', or do I just leave it.

 

Secondly, should I report the Data Protection breach to the Information Commissioners Office, and do I simply return the agreement to AIC and point out their error?

 

Many thanks

 

Can anyone help with this?

 

Also, would it be an idea to write to the person who's credit agreement I have to advise them what AIC have done?

[banker_rhymes_with]

Is it worth pursuing this line. They have now asked for the whole balance, plus their charges, so I assume that by doing this they have effectively cancelled the agreement under S87, and the monies required to settle the default according to the notice were £80. So if BRW is correct the most they can try and recover is £80.

 

This applies only if they have issued you with an invalid Default Notice and then Terminated.

 

If the Default Notice was valid, and you did not pay the £80, and then they Terminated, then they are entitled to enjoy the benefits of s87.

 

That being the Right to ask you for the whole Balance.

 

Lawful Termination = Valid Default Notice followed by Termination if the Default Notice is not Paid within the timescale.

 

Unlawful Termination = Invalid Default Notice followed by Termination.

 

Either way, this is academic if they don't have an Enforceable Agreement.

 

Cheers,

BRW

[dori2o]

Thanks BRW.

 

Can anyone help me with my last post.

 

Today I have received a letter from AIC, with a 'Compliments' slip and a copy of the application form, exactly the same one that was sent to me earlier (the same one as posted in an earlier thread).

 

AND

 

An application form for an AMERICAN EXPRESS PLATINUM CARD in somebody elses name.

 

It give there address details and their telephone numnber along with their signature. I believe this to be a breach of the Data Protection Act.

 

Now I have 2 things to deal with.

 

I assume the reason they have sent me another copy of my application is following my 'this is not an enforceable credit agreement' letter. So, what do I do now, I've just sent a letter in response to HL's letterI received the other day, do I send another 'this is not an enforceable agreement letter', or do I just leave it.

 

Secondly, should I report the Data Protection breach to the Information Commissioners Office, and do I simply return the agreement to AIC and point out their error?

 

Many thanks

[daarab]

Subbing

and Bumping

[shakespeare62]

Thanks BRW.

 

Can anyone help me with my last post.

 

 

Keep the envelope - e.g. staple it to the back of the letter they sent, and note on the letter the date it was received by you.

 

Next, I would start a formal complaint, which you can escalate to Trading Standards , OFT and if necessary the Financial Ombudsman, if Amex fail to deal with it properly. I would also threaten to report the matter to the press.

 

e.g.

 

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

 

[ Your Address]

 

 

[senior Manager]

[Their Address ]

 

[Date]

 

FORMAL COMPLAINT Re: -

Breaches of Consumer Credit Act 1974 (CCA 1974)

Data Protection Act 1998

Office Of Fair Trading Debt Collection Guidelines (OFT 664)

Consumer Protection Against Unfair Trading Agreements 2008 (CPUTR 2008 )

 

Dear Sir / Madam

 

I refer to your letter dated __/___/.

 

You have sent me copies of an alleged debt which contains sensitive personal information relating to a different person (copy attached).

 

This is not only a serious breach of the Data Protection Act 1998, it also represents multiple breaches of CPUTR 2008 and the following sections of OFT 664 :-

 

Section 2.8 (b) Disclosing debt details to an individual when it is uncertain that they are the debtor in question, for example, disclosing details to the 'occupier' of an address.

Section 2.6 (j) Actiing in a way likely to be publicly embarrassing to the debtor either deliberately or through lack of care, for example, by not putting correspondence in a sealed enveloper and putting it through a letterbox, thereby running the risk that it could be read by third parties.

 

This is yet another example of a bank mishandling personal data which I am considering exposing in the National Press

 

I am also considering reporting the matter to Trading Standards, OFT, Information Commissioner and the Financial Ombudsman.

 

Yours faithfully

 

[Your Name]

 

 

Enclosures (list these as appropriate)

 

Enc 1 - copy of letter to [NAME] dated __/___/

Enc 2 - copy of envelope addressed to me

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

 

The above letter is an example of something you could use or edit as appropriate. It should certainly get their attention and they should investigate. I would actually consider reporting them to TS and OFT and the Information Commissioner as it is a serious breach of personal information. It is also personally harrassing for you. IT would also be a good opening move in a course of action that could result in the Financial Ombudsman finding against them if they fail to remedy the situation promptly (e.g. via suitable letter of apology and immediate cessation of this harrassment).

 

Likewise with the press. Again its scandalous and probably newsworthy - you might consider The Times, Express , Mail. The point is, these debt collection Agencies / Recovery Departments, clearly need more regulation - not to be given more powers.

 

Note: Send by recorded Delivery and by fax if possible. If you can't afford recorded Delivery (£1 + stamp), obtain a certificate of posting from the Post Office Counter - its a form you fill in for free and the the clerk stamps it.

 

Note: If you send by fax, keep the fax transmission receipt, also put a line above their address as follows :--

 

Sent by Fax No xxxx - xxx - xxx and by Post

Edited December 21, 2008 by shakespeare62
put OFT 664 sections quoted in italics

[Von Greenbach]

Hello BRW

 

You've been very good with your knowledge, although I have difficulty getting my head round some issues.

 

Say I owe £10.00 but £4.00 is arrears, they terminate the agreement and then claim the full £10.00, but they stupidly terminate the agreement by messing up on the DN.

 

They take me to court and can only claim the arrears = £4.00, what happens to the remaing £6.00, give that it's still owed, do they HAVE TO ACCEPT a payment plan?

 

This is on the basis the CCA is VALID of course.

 

Edit, I have a defective DN, although it's not showing on my credit file, is this relevant?

Edited December 21, 2008 by Von Greenbach

[shakespeare62]

UPDATE:

 

I have today received a letter from H L Legal and Collections Solicitors.

 

Thery say they have been instructed by AIC to consider legal proceedings agfainst me in the Notrthampton County Court for recovery of the full amount together with statutory intrest and additional costs and I should contact AIC if I want to avoid this action. There will be no further warning apparently.

 

They state that upon judgement the following methods could be considered, attachment of earnings, warrent of execution,Charging order or Bankruptcy where applicable.

 

All correspondence MUST be sent to the offices od AIC, including ref number etc..etc..

 

So, what do I do now. They have not responded to my 'That is not a credit agreement' letter. They have not sent a doorstep collector as threatened.

 

Any and all help appreciated.

 

 

Solicitors are there to "milk the cow" without any loss to themselves ie. they assume a "win win" situation where by they get paid by the client either way.

 

They have a nominal advantage in that they are not particularly worried by OFT regulations etc. as they probably don't hold or need a credit licence.

 

There is one organisation however of which they do respect, namely The Solicitors Regulatory Authority (SRA). Solicitors can and do get struck off for serious breaches of conduct - which includes misrepresentation. A Google search for "solicitors struck off" (UK results only) illustrates this point nicely.

 

You may wish to put (a particularly nasty) Solicitors on notice, that should they maintain they have an enforceable agreement in a claim, turn up at Court and be unable to produce one, they may be called to account.

 

Be subtle, where appropriate [#1 ] The following letter (edit as appropriate) conveys the point succintly :-

 

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

 

[Your Address]

 

 

[senior Partner Name] [solicitor ID - XXXXXX]

[solicitors Address ]

 

 

By Fax no: xxx – xxx - xxx and post

IMPORTANT

[Date]

 

 

Your Reference: xxx xxx xxx

 

 

ACCOUNT IN DISPUTE Re: -

Breaches of Consumer Credit Act 1974 (CCA 1974)

Data Protection Act 1998

Office Of Fair Trading Debt Collection Guidelines (OFT 664)

Consumer Protection Against Unfair Trading Agreements 2008 (CPUTR 2008)

 

Dear Sir / Madam

 

I refer to your letter dated [Date]

 

As you are aware from my letter to your client dated __/__ (copied to you by fax on the same date at XX:XX hrs, and subsequently by post) :-

 

 

• Your client has failed to fulfil a request to supply a copy of an executed credit agreement as required by law under sections 77 – 79 of the Consumer Credit Act 1974, and which complies with the relevant regulations made pursuant to that Act, in particular the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) (As amended).
  

 

• The alleged agreement supplied is in fact a poor copy of an application form which does not contain any required prescribed terms and as such is not enforceable under section 127 (3) of the Consumer Credit Act 1974 quote :- “The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).”
  

 

• The above requirements are made explicitly clear by the authority of the House Of Lords and a recent judgement in the Court Of Appeal. I refer you to :-
  

Wilson-v- FCT [2003] All ER (D) 187 (Jul)

1. Wilson and another v. Hurstanger Ltd [2007] EWCA Civ 299.
   

 

Solicitors Regulatory Authority

 

Should you commence Court Proceedings, your firm may be put to strict proof that an enforceable agreement exists in relation to any claim you are making, any failure by your firm to comply may construe grounds for a report being made to the Solicitors Regulatory Authority for misrepresentation. The matter will also be brought to the Courts attention and this letter referred to.

 

Any legal action you pursue will be averred to as both UNLAWFUL and VEXATIOUS and will be VIGOROUSLY defended

 

I am not obliged to make any payments to your client.

 

Finally I require from your client the detailed information listed in my recent Subject Access Request (Subject Access Request). This in non negotiable. The Subject Access Request was delivered to your client on __/__ Your client has 40 calendar days to comply.

 

 

Yours faithfully

 

 

[Your Name]

 

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

[#1] E.g. in the case of a grubby illegible microfiche copy of an application form which doesn't contain any prescribed terms, and where solicitors are 'threatening' to take your home, wife and kids and dog etc.

 

The finer points on what constitutes a reply to a "CCA request under s.77 - 79" are academic - You're not so subtly putting them on notice about the SRA should they mislead

 

Obviously the letter template above, refers to a subject Access Request. This is to deal with DCA lowlife which attempts to levy £1000 handling charges. You'd need to delete this if appropriate.

 

[Note] Alway send it to an identifiable person. Get the name of the Senior Partner from the Law Society Website. Put his solicitor id alongside his name at the top of the letter - just to let you him know you mean business.

Edited December 21, 2008 by shakespeare62
amended grammer

[banker_rhymes_with]

Hello VB!

 

Say I owe £10.00 but £4.00 is arrears, they terminate the agreement and then claim the full £10.00, but they stupidly terminate the agreement by messing up on the DN.

 

They take me to court and can only claim the arrears = £4.00, what happens to the remaining £6.00, give that it's still owed, do they HAVE TO ACCEPT a payment plan?

 

Before Termination you were still in the alleged Agreement, so were entitled to Pay off the main Balance via Monthly Payments.

 

The main Balance was not due, as you were still allowed to Pay it off.

 

If you fell behind on your Payments, and built up Arrears of £4.00, but had an overall Balance of £10.00, then before Termination, £4.00 was due, and £6.00 was not due.

 

If the Creditor wants to end the Agreement, then they can do so if you have not kept to your side of the deal. But they can only do this after Warning you, i.e. by issuing a valid Default Notice.

 

The Default Notice should say, look here VB, pay us the £4.00 you owe matey, and do it within 14 Days, and all will be forgotten, we can go back to normal and you can carry on. If you Paid the £4.00 within the timescale, all would be OK again, and you'd have a main Balance of £6.00 that you would be allowed to Pay Off over future Monthly Payments.

 

But if you failed to pay the £4.00 of Arrears within 14 Days, then the Creditor could use the entitlement that they get to play with via s87. In other words, they get to ask you for a sum that was not otherwise due, i.e. the £6.00 of the main Balance. To that they'd add the Arrears, and you'd owe them the full £10.00, payable immediately.

 

But if they issued an invalid Default Notice, and went ahead to Terminate, then upon Termination £4.00 would be due (the Arrears) and the main Balance of £6.00 would be lost to them, because they would've thrown away the entitlements they get from s87, i.e. the Right to ask you to repay a sum that was not otherwise due.

 

The £6.00 stays not due after that, as the Agreement has ended, so you are under no obligation to make any further Monthly Payments, and the Creditor cannot ask you to Pay what is not due.

 

The £6.00 becomes unobtainable, as there is no Agreement now binding you to Pay it off in Monthly chunks, and the Creditor has wasted the one chance they had via s87 to make you Pay it off earlier than otherwise would've been the case had the Agreement been allowed to continue.

 

Think of it as their little punishment for failing to follow the clear s87/s88 steps outlined in the Act.

 

All they had to do was issue a Valid Default Notice and then Terminate if you failed to remedy the default (i.e. Pay the Arrears). It's not Rocket Science, so why these idiot bankers cannot get the paperwork right is beyond me.

 

A mixture of blind greed, arrogance and amazing stupidity spring to mind.

 

This is on the basis the CCA is VALID of course.

 

If they don't have an Enforceable Agreement, then they can forget about any Payments, either Arrears or main Balance. Default Notices are then irrelevent, as there is no valid Agreement to Default.

 

I have a defective DN, although it's not showing on my credit file, is this relevant?

 

Not relevant, as that's just the Reporting issue with the Credit Reference Agencies. The bank will or will not report a Default, it's hard to say what they will do. Likewise, having an invalid Default Notice will not stop them reporting a Default, but it should help you to get it removed if and when they do Report it.

 

Cheers,

BRW

[Von Greenbach]

Hey, WoW, Opps, I'm must try not to get to excited here, but if I'm following you right I can't believe this

 

I owe a Creditor over £20K, arrears around £700, they lose in court due to a faulty DN, therefore I only have to pay £700.00

 

The £21K is history

 

Have I got the right

 

Please confirm this is going to be a fantastic christmas

[Von Greenbach]

Here's my DN

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1879046.html

[banker_rhymes_with]

Hello VB!

 

I regret I cannot confirm anything, all I can do is try to explain my understanding of the Act and how invalid Default Notices can affect things.

 

Please read my recent Post #20 on the following Thread (the link will take you straight there):

 

Amex Default Notices

 

The key is Termination...an invalid Default Notice can, in theory, be corrected if they have not Terminated the alleged Account.

 

But once they Terminate, then they cannot then go back to generate a valid Default Notice.

 

In your case it looks like they have issued Court action, and are after the whole Balance, confirming they regard the alleged Agreement has ended.

 

This suggests they are taking you to Court but without actually having any Right to enjoy the benefits of s87.

 

Your Default Notice appears to be invalid, as they have not allowed you 14 Days. They have failed to allow for Postage.

 

Your battle now is to present these facts to the Court. The opposition will do all they can to convince the Judge none of this matters, so you can still lose if you are not able to argue your case.

 

However, if you get your Defence well prepared, and get yourself ready, then there is no reason why you should not be able to convince the Judge the above issues are correct.

 

Please do not underestimate the task, but at least now you have a fighting chance to see them off.

 

Cheers,

BRW

[Von Greenbach]

Please do not underestimate the task, but at least now you have a fighting chance to see them off.

BRW thanks for the explanation, I mentioned I have difficulty understanding, but with your explanation I now fully understand it.

 

There is no way they are going to write of £20K, which is the fight I have on now.

 

I can't thank you enough for helping me, it's only the last hour it has finally sunk in.

 

OP, sorry to have highjacked your thread.

[EvaluatingIntegrity]

What is the score with defaults due to not paying money into an overdrawn account with the HSBC. 2500 OD. Inactive whilst fully overdrawn back in 2005. 2 other active accounts with HSBC, but I dont beleive they served a formal Default notice, or even suggested we just transfer a tenner from another account to keep it active / under the OD limit. First we remember is MCS taking on the OD amount and agreeing to a £50 p.m repayment. The account was shut down by the HSBC at this point. It is showing as a deafult on Experian about half way through being paid off. We have the money to settle but MCS wont confirm a settlement figure in writing. As their is no set monthly repayment fee on an overdraft I dont undertsand where I stand in the eyes of the law. I want this off the credit report, but need apan of attack.

[postggj]

some thing i was told a long time ago

 

never push on the default notice if you never received it

if it gets to court and they cant produce one, thats it game over

if the account has been terminated, you get that when a dca tells you it has been assigned to them, they cant go back on that

 

i used that in one of my welcome finance accounts in court,

the judge was not impressed with welcome,

wasting his time comes to mind

 

my advice on this one as its a large ammount is keep mum on the default notice issue and wait for the n1 claim form defence

 

my opinion only

[Von Greenbach]

my opinion only

I would agree

 

It's a simple process for these muppetts to follow, yet surprising how they manage to c**k up so many claims, to our advantage of course.

[angel_1]

hiya all

 

ive looked at your default notice you received Von Greenbach and although parts of the lettering were in capitals and bold and underlined, you also were told " within 14 days of the date of the notice" like ive been told

 

therefore am i understanding that this is not the correct format that an actual date must be given and also to allow 14 days plus at least 2 for service?

 

off to update my ms thread and scan my dn, im hoping they havent done it correctly and will terminate me unlawfully and thus only the arrears are due, plus received a shabby cca an unreadable terms and conditions etc

 

will scan all in a bit

 

laters guys and again thanks to all on this thread have again improved my knowledge,

 

laters angel x:cool:

[dori2o]

Since sending the above letter I had heard nothing from AIC, AMEX or HL......Todau I got a telephone call from Newhams (I think that is what they were called)...They said they werecalling about my Amex card and how I had been unwilling to resolve the matter, I advised them I had been totally wiling but I had yet to receive the information I had requested...I then refused to go through their security questions... and the woman said she will send me a letter instead.

 

I take it this means AIC have either passed on the debt, or have passed it to Amex and they have farmed it out again.

 

Do I just send a letter advising I have already made a CCA request and suggest they refer it back to where it came from?

[dori2o]

***bump***