Advantis chasing Amex 'debt'

[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

[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

[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

[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

[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

[banker_rhymes_with]

Hello Dori2o!

 

Just a minor tweak to your proposed letter in Red with any explanations needed shown in Blue to cover why I've made the change:

 

Thank you for your letter dated 16 April 2009, I must admit I did have difficulty at first understanding the letter, until I noticed the catastrophic mistake that your company has made. I must admit I was rather shocked to see such a mistake made by a company such as yours.

 

Let's go through your letter.

 

[ We write further to your template letter dated 5th April, the content of the letter has been noted.

 

Whether the letter is a template or not is none of your concern, I am sure there are many template letters on your systems that are sent out to people every day. ]

 

...maybe leave this bit out, as it's just a bun fight over the word template. Maybe it would be better not to rise to their snotty mention of the word template, and instead keep your letter short and sharp and hit them between the eyes regarding their main errors and omissions?

 

We refer to paragraph one, where it is stated a request for documentation was sent to us on 12 March 2009, this has not been received, and subsequently to state in paragraph two 'the alleged agreement supplied is in fact a poor copy' when no such agreement has even been provided is disingenuous.

 

May I suggest that you re-read my letter. I think you will find that I actually sent the letter in question to your client, who responded with a copy of the application form, but included no terms and conditions in relation to the agreement. I am sure you are aware that for a signed agreement to be properly executed, it must contain within the four corners of the agreement, the prescribed terms laid out in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). Without the prescribed terms the agreement does not conform to section 60(1) CCA 1974 and therefore cannot be properly executed as described in section 61(1)(a) CCA 1974.

 

[The word contain is key, as that ties in with s61(1)(a) which uses this word in relation to the Prescribed Terms. By comparison, s61(1)(b) uses the word embody, i.e. in relation to general terms which can be found within another document and embodied into the Agreement. The Prescribed Terms cannot be embodied into the Agreement from somewhere else, they must be contained within it!]

 

May we remind you on 21st November 2007 we obtained a County Court Judgement against you, no defence was filed at that stage stating you wish to dispute our clients claim, in fact quite the contrary occurred, you completed the Admission form and offered £20.00 per month to repay your outstanding debt to our client and stated on the claim form you admitted to the amount owed and signed.

 

I became extremely confused at this section of the letter as you have never obtained a CCJ against me. It was at this point that I noticed the heading at the top of your letter.

 

Arrow Global LLC v Phillip Dori2o

Claim Number – 7XT*****

 

I am pleased to inform you that I am not Mr Phillip Dori2o, however I am sure that Mr Dori2o will not be happy to hear that you have been sharing the details about his CCJ’s with other Dori2o’s around the country, neither do I expect the Information Commissioner or Trading Standards to be impressed by this fact (a copy of your letter has been forwarded to both the above mentioned bodies).

 

I think that is enough to prove that you have made an extremely embarrassing mistake in your letter.

 

Now, back to business. This account is in dispute. Your client has failed to fulfil their obligation by not responding completely to my request for a copy of the properly executed credit agreement as per s.78(1) of the Consumer Credit Act 1974 which complies with the relevant regulations made pursuant to that Act, in particular the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

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:

 

“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).

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

 

I again remind you that 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 Court's 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.

 

Yours sincerely

Below is the letter again, with the bits taken out and the Red and Blue areas turned to black or deleted, as needed:

 

Thank you for your letter dated 16 April 2009, I must admit I did have difficulty at first understanding the letter, until I noticed the catastrophic mistake that your company has made. I must admit I was rather shocked to see such a mistake made by a company such as yours.

 

Let's go through your letter.

 

We refer to paragraph one, where it is stated a request for documentation was sent to us on 12 March 2009, this has not been received, and subsequently to state in paragraph two 'the alleged agreement supplied is in fact a poor copy' when no such agreement has even been provided is disingenuous.

 

May I suggest that you re-read my letter. I think you will find that I actually sent the letter in question to your client, who responded with a copy of the application form, but included no terms and conditions in relation to the agreement. I am sure you are aware that for a signed agreement to be properly executed, it must contain within the four corners of the agreement, the prescribed terms laid out in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). Without the prescribed terms the agreement does not conform to section 60(1) CCA 1974 and therefore cannot be properly executed as described in section 61(1)(a) CCA 1974.

 

May we remind you on 21st November 2007 we obtained a County Court Judgement against you, no defence was filed at that stage stating you wish to dispute our clients claim, in fact quite the contrary occurred, you completed the Admission form and offered £20.00 per month to repay your outstanding debt to our client and stated on the claim form you admitted to the amount owed and signed.

 

I became extremely confused at this section of the letter as you have never obtained a CCJ against me. It was at this point that I noticed the heading at the top of your letter.

 

Arrow Global LLC v Phillip Dori2o

Claim Number – 7XT*****

 

I am pleased to inform you that I am not Mr Phillip Dori2o, however I am sure that Mr Dori2o will not be happy to hear that you have been sharing the details about his CCJ’s with other Dori2o’s around the country, neither do I expect the Information Commissioner or Trading Standards to be impressed by this fact (a copy of your letter has been forwarded to both the above mentioned bodies).

 

I think that is enough to prove that you have made an extremely embarrassing mistake in your letter.

 

Now, back to business. This account is in dispute. Your client has failed to fulfil their obligation by not responding completely to my request for a copy of the properly executed credit agreement as per s.78(1) of the Consumer Credit Act 1974 which complies with the relevant regulations made pursuant to that Act, in particular the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

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:

 

“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) .

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

 

I again remind you that 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 Court 's 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.

 

Yours sincerely

I hope this helps.

 

Cheers,

BRW

Edited April 18, 2009 by banker_rhymes_with
Strange formatting correction.

[banker_rhymes_with]

Hello Intree!

 

But do send them a SAR if you have not already done so, and see what comes back from that.

 

If no Default Notice in there, then that is another tick in the box.

 

Cheers,

BRW