Amex debt catches up - SCOTTISH LAW APPLIES

[clarrabell]

What information did you require from the Subject Access Request ?

 

I dont know how the courts work in Scotland, will they adjourn if you dont have information required in order to fully defend yourself ?

 

I asked for this

 

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

 

3. 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).

 

4. Details of any collection charges 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.

 

5. 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.

 

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

 

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

8. Notice of termination (if applicable)

 

Basically a slightly modified version of a template I found in this website. I'm really not sure about the adjourning thing.

[clarrabell]

Here is the application form that was signed

scan0001.pdf

[seriously fed up]

Just to clarify, there are Amex cards, just like a "normal" credit card - you can purchase with it, pay off only some of the balance and borrow the remainder etc. But is this the other type that is basically a chargecard where you repay the full amount at the end of the month and there is no borrowing facility, so, for instance while there might be a limit you can buy on it over a month, interest isnt really relevant as you cant borrow. Not sure if it makes any difference, but would be nice to know.

In the context of what i have callled a "normal" credit card, I dont see what you have put up here as being in any way enforceable - its the usual paranoid bank application form about your id etc. I dont see a single prescribed term in this so s61 1a should apply so the original court shouldnt have issued the order, but did because there would never be any evidence like this presented since they got the order by default. What you need to argue is that the order shouldnt have been made, that you didnt know about the claim and that they should have tried harder to find you, and that since the order shouldnt have been made it should be recalled. Its worth a try, but I wouldnt like to give you a guarantee it will work.

[clarrabell]

Yes it was a charge card, it cost £95 a year just to have the account. I was worried about this being unregulated. What I don't understand though is if it is unregulated then why did they have the box with the cca 1974 spiel and why was it only the supplementary card holder that signed against this.

[seriously fed up]

You need advice from someone with experience of these cards - I dont.

On the other hand, for wiw, there is lending - albeit short term - was there a credit limit (ie you could only spend £x in a month)? - there would be repayments (you could have to pay back at the end of the month) and the point about interest is that its the cost of the borrowing, so in a way the £95 fee is the interest. Moreover the second box that you signed does quite clearly state dont sign this unless you agree to be bound by the CCA 1974 and its terms - it would be a funny argument that said you were so bound but they were not. In that event, as I said before, the prescribed terms seem to be absent so s61 1a and s127 (3) apply. Is this ALL they sent in the way of T&Cs? Was the sig page part of a much larger single document that did include things like credit limit, how you repay etc. From their pov its better if that is on the sig page, I think, but if its all part of what is clearly a single document they can argue on the basis of Carey v HSBC where that point was made.

One other question - it says "click the print button below) - was this done online? If it was then online regs apply and again I dont know much about them. On the other hand, I can see where you signed - actually signed - not a tick box - so am a bit confused here.

Sorry to be a big vague, but the problem is that the type of card is kind of different/ unusual compared to what I am used to. I would suggest having a trawl through the Amex threads to see if someone else has had a problem with what is basically a chargecard.

[clarrabell]

Yeah have had a good look through the Amex threads but most of them seem to find out that it is unregulated and then we don't hear back from them.

 

Yeah it is strange, apparently unregulated but says you are bound by the cca1974. This application was done online but it was only to save them posting out an application form. I can't remember exactly if I applied for a supplementary card holder on the original application so there may be another application form or more pages- won't know until the SAR comes through. This was only sent to me by the solicitors acting on behalf of Amex.

 

So In the mean time how do I go about delaying the hearing until I have the information I need from Amex?

[seriously fed up]

sorry you need to have a closer look. Just keep looking till you find one that does offer some advice that is pertinent to your case - its complicated because no two cases are exactly the same - you learn something from one and something else in another. I think the reference to the CCA is pertinent, as is the fact that they sent you this and didnt just say "s78 doesnt apply because its not regulated" - suggests that they arent sure.

You need to put a motion into court seeking a delay - that you are waiting for documents to arrive that are crucial for your defence - but you will need to be clear just why you need these documents - they dont like fishing expeditions. There is a blank form at the bottom of this page http://www.consumeractiongroup.co.uk/forum/showthread.php?269529-Creation-Financial-Services-and-Court-*WON* and then some discussion about how to fill it out on the next page. Put it into the Court and there will be a date set for it to be heard. The other side may oppose on the basis that there is already judgement and this is just a delaying tactic. You will need to argue that you would have paid up if they had sent the papers to the right place, that you have reason to believe that the account isnt enforceable and that there are documents you require to support this - specify them as closely as you can - dont just say that I have put in a SAR - spell out how the documents (doesnt have to be all the stuff you get from the SAR) are relevant.

[clarrabell]

This is all great help, thanks. Would I be right in saying that the only people that would definitely know for sure are trained solicitors? If so I may just need to employ one. I will looking to delay the hearing for sure. I need to get these documents!

[clarrabell]

Just re-read the application form. It says on it that a copy of the agreement would be sent with the card, presumably for me to sign?

 

So they may have more to show. On the other hand I might not have signed anything at all. I would have thought that even if this is not regulated that I would still need to sign an agreed contract and not just an application form?

 

All just speculation, I need to wait and see.

[seriously fed up]

Re a solicitor, you need to be careful here

 

1. you need to check on what their experience/expertise is on this kind of area
   
2. there are some who are unwilling to take on this kind of case in case they fall out with their pals at the banks who can give them much bigger cases than you would, and on a repeating basis
   
3. costs can mount up pretty quickly
   

As always you need to make your own mind up about this, but keep these things in mind.

 

If they are fessing up that the t&cs werent there when you signed then I would say that's good for you - unless you signed for them later. Even then, the t&cs should be there before you when you sign the agreement, and if they are saying the application form is the agreement - and since when you requested a copy of the agreement this is what they sent you - then it would seem arguable to me that they are admitting you didnt have the t&cs when you signed so 61 1a applies IF the account is regulated, and the fact they havent told you that its not suggests (at best) that it might well be regulated.

But yes, all speculation - and indeed unless you can get the original judgement recalled, totally pointless speculation. I would suggest

 

1. delay to get the documents that you need
   
2. bone up on the status of this agreement - is it regulated or not (or could it be argued that its regulated?). If it is - or could be
   
3. on the basis of that, we would hope it could argued with some conviction, that had you been in receipt of the original claim, it seems reasonable to believe that you might have resisted it
   
4. with the original judgement set aside, you need to develop a case to have their claim dismissed by the time of the full hearing
   

[clarrabell]

I have been talking to the court advisor and she has advised me that the decree will automatically be recalled by the sheriff! Good news for me, but it has left me wondering why?

 

So if the above is true, how would I then proceed? Just take off all the charges and pay them the balance?

[seriously fed up]

well that would be an offer you could make to them in order to avoid court. They will insist that their charges are fair and in the T&Cs, but in so far as they are penalties for a breach of contract you should be able to reclaim them. Many card companies faced with a demand to do so will often do this on a "without admission of liability"basis, but hey ho you get your money back. On the other hand some are extremely obdurate - if you have a look at this one (involves Capital one) you will get the idea I am sure http://www.consumeractiongroup.co.uk/forum/showthread.php?298616-Mrs.SS-v-Cap-One-reclaim-of-Credit-Card-Charges. I really have no idea how Amex would be likely to respond to this, but it is worth a try.

It is of course possible that they will simply restart the whole thing by issuing a new claim. At that point you might want to check your options about whether their agreement is capable of being enforced which comes down to whether or not its a regulated agreement.

Your call!