@amexuk Amex PPI and tax on stat interest

[tifo]

I did a CCA with Fredrickson, whom i have been paying for a few years now.

 

They also have a default on my credit files, so i assumed they must own the debt.

 

I rang them today as did not get any POD from Royal Mail two times.

 

The guy at the other end said we received them, and HAVE SENT THE ACCOUNT BACK TO AMEX!

 

I asked how can you do that when you purchased it, hence you defaulted me? answer : i don't know but we've returned it.

 

So i asked why did i not get a letter stating this? answer : we don't send letters out (they do when they threaten court action!).

 

I then asked can i speak to a manager? answer : no-ones here as its a quiet day (Friday).

 

Can i have a name to call for next time? answer : no, we are not allowed to give names out.

 

So, looks like they chickened out and are saying they've sent it back, but have defaulted me over the years.

 

Anyone got advice how i should handle this?

 

Shall i take them to court for CCA non-compliance, ask for all my payments back, plus statutory interest, plus expenses, plus costs, plus cost of paying extra on mortgage over the life of their default (over £4,000) or leave it to the judge to decide compensation?

[Bigmac versus]

They are accountable for non-compliance if they are the original debtor or not, report them to TS trading standards for this and tell them by writing to remove the defaults as they dont have the deed of assignment as requested, remove or be reported, depends on what you want from this action.

[tifo]

yes, i think they bought it hence thats how they could enter a default. I have no default from Amex.

 

i want to take them to court, get back all the money i've paid them (must be around £300, get stat interest, plus £104 per month extra which i am paying because of defaults (this contributes). So if they've had the default for 3 years, thats £3,744 compensation and also default removal.

 

then a sum for distress and research/costs.

 

i can make a claim in small claims for less than £5k and see what the judge awards.

[Bigmac versus]

I like your thinking on this and wish you all the best in whichever route youy take, keep posting your updates.

[tifo]

sending the letter below .... anyone comment please to OK it?

 

I rang Fredrickson on Friday 2nd February (last week) and was informed by the advisor that the debt has been sent ‘back to American Express’. I was surprised to hear this and asked why I had not been informed. He answered that ‘we don’t send letters out’. However, I have letters from Fredrickson demanding payment and threatening court action, so am aware that you do send letters. I also asked to speak to a supervisor or manager and was told ‘they are not here as it’s Friday and a quiet day’. I asked for a name so I can call on Monday and was told ‘we don’t give names out’.

 

However, as Fredrickson has been collecting money for this account over the past few years, I still require the demand which I made under section 78(1) of the CCA1974 to be fulfilled.

 

For your clarification, the Consumer Credit Act 1974 section 78 states :

 

78 Duty to give information to debtor under running-account credit agreement

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

(3) Subsection (1) does not apply to—

 

(a) an agreement under which no sum is, or will or may become, payable by the debtor, or

 

(b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

(4) Where running -account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

 

(a) showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelvemonths, and

 

(b) where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

 

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement;

 

and

 

(b) if the default continues for one month he commits an offence.

 

(7) This section does not apply to a non-commercial agreement, and subsections (4) and

(5) do not apply to a small agreement.

 

The important word here is creditor.

 

This is how the Consumer Credit Act defines a creditor :

189 Definitions

 

(1) In this Act, unless the context otherwise requires—

 

”creditor” means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor;

 

This to me defines the owner of the debt, whether that be the original creditor, or a Debt Agency who has 'bought' the debt.

 

A signed true copy of the credit agreement, together with a signed true copy of the deed of assignment should therefore be supplied to me within the time period stipulated in the CCA.

 

Fredrickson has an entry at both Credit Reference Agencies Experian and Equifax, under the Fredrickson name. I understand that an account can only be defaulted by the current legal owner, which in this case is being stated as Fredrickson. I am therefore very confused to the reply given by your advisor that the account has been ‘sent back’.

 

However, if this account was only being administered by Fredrickson and has not been fully assigned, then there has been a serious breach of the Data Protection Act 1998 with regards to the default.

 

As you are aware, I am afforded principled rights under the Data Protection Act (Data Protection Act), Schedule 1, Part 1 ("The Principles") in relation to the manner in which my data is collated, stored and processed. Of particular note, are Principles 3 and 4 :

 

3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

 

4. Personal data shall be accurate and, where necessary, kept up to date.

 

If Fredrickson has never owned this debt (as they are now stating) then they have breached Principles 3 and 4 (stated above), because issuing a default on an account that is not owned is not relevant and is excessive. Further, it is not an accurate use of personal data which is a core responsibility of your company’s Data Controller.

 

Section 10(1)(a) and (b) of the Data Protection Act is also very clear as to the rights of the Data Subject in respect of damage and distress caused by the use of personal information :

10. - (1) (a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

 

(b) that damage or distress is or would be unwarranted.

 

In this case, if Fredrickson has never been the actual creditor for this account then they have breached the above subsections of the Act, in that the default issued under their name has caused me considerable damage (to my financial credibility) as well as distress in paying higher rates of interest on my mortgage or loans. I am currently paying £104 per month extra on my mortgage which is a result of defaults on my credit files. The default by Fredrickson contributes to this.

 

I am also awaiting a full statement of account detailing all transactions on the account from the date of purchase by Fredrickson International Ltd to the present day. The advisor stated that he has ordered for these to be sent.

 

As the account seems (to me) to have been purchased by Fredrickson, I require further information.

 

Please provide proof of the Fair Processing Notice sent to me, as the Data Subject, by Fredrickson International Ltd detailing how my personal information, stored on relevant filing systems, will be used. This would have been sent to me at the time of purchase of the account.

 

As clearly stated on the Information Commissioner’s Office own website http://www.ico.gov.uk/ :

 

Q: What do I need to put in my fair processing notice, which is given to individuals before I process their information?

 

A : You will need to outline what and how information is going to be processed. This is to make sure the individual knows exactly what is going to happen to their information and how it is going to be used. You shouldn't be doing anything with personal information unless the individual is made aware.

 

Please send details of the default notice sent to me, prior to the default being issued. I understand that, as Fredrickson International Ltd have issued a default on my credit files, a default notice is required to be sent to me detailing which agreement I have broken with them and am in ‘default’ of.

 

I understand that under the Consumer Credit Act creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the said agreement under the relevant sections of the Act.

 

Furthermore you are reminded that under s.78 sub section (6) whilst your default continues you are not entitled to enforce the agreement in law.

 

If Fredrickson International Ltd cannot supply the required agreement within the time stipulated or they have never been the actual creditor for this account, then they have breached the Consumer Credit Act as well as the Data Protection Act. They have also breached article 8 of the Human Rights Act, which afford the ‘right to privacy’.

 

I would like to discuss the matter fully to come to an understanding before taking the matter further, and would therefore ask that you enter into a meaningful dialogue with me to resolve the issues raised in this letter. Further, if Fredrickson are prepared to offer a full refund of all monies paid (with statutory interest) and a reasonable sum for damage and distress caused by their actions with regards to this account, including the damage caused to my financial credibility and distress caused in having to pay a higher interest rate on my mortgage as a result of the issue of defaults, then I am able to close the matter fully.

If we cannot resolve the matters raised here to a mutual conclusion, then I reserve the right to take further action as necessary. This will inevitably result in considerable further costs for your company.

[PriorityOne]

Tifo, I would be inclined to adapt this letter and use it to back Fredrickson into a corner before dealing with TS.

 

If they don't comply, then report them to everywhere in the universe. Make aware that you can and will do this.... calmly.

[tifo]

Hi ... how do you mean 'adapt'? (i've revised the last part slightly)

 

I want to post them something because as far as they're saying, its been sent back to Amex.

 

Have i been too strong in some cases?

 

Do you agree i should send it?

[PriorityOne]

"Adapt" in the sense that you could use your comments to pressurise Fredrickosn into returning any monies paid by you so far. You said that you wanted to claim all your payments back... so you could use the knowledge in your letter to make them think "Oh f**k".

 

I am facing a similar scenario.... and the reason I suggested it is because TS have been useless so far, not because there was anything wrong with your letter. Your letter is good. If you want your money back, it might be worth considering, that's all.

 

[tifo]

received the following response from OFT regarding a Lowell complaint. This will help with Fredrickson as well ...

 

I will go to the TS later ....

 

We investigate all complaints received about consumer credit licence holders and, where we have the necessary evidence, we do take appropriate action. In our initial investigation of all complaints we consider how many complaints we have received overall and how strong the evidence is to support any action. It is unlikely that a licence would be revoked on the strength of one complaint. Where we have strong evidence that unfair business practices have occurred, we may take steps to revoke or refuse the licence of the business in question. However, if we are to do this we need to take account of factors such as the number of complaints received how recent they are and how well evidenced. In cases where evidence is less strong we may issue a warning letter to the business putting it on notice that its behaviour, if repeated, will call their fitness to hold a licence into question. Any action we do take has to be proportionate. If an approach from the OFT makes a trader change its behaviour and treat consumers fairly in future, this is preferable to putting a trader out of business.

 

For your information, the general effects of sections 77-79 requires the creditor/owner (in the case of a hire agreement) under an agreement for (fixed-sum credit, running account credit and hire agreement) to provide the debtor/hirer with a copy of the executed agreement and a statement of account on request.

 

If a creditor/owner fails to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all. This prevents enforcement with or without a court order. If a default lasts for a month (for example a calendar month) it constitutes an offence. We understand your concerns in this matter but please do remember however that once the creditor/owner complies with the request albeit out of time, he may once again enforce the agreement.

 

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when each is/was due). However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

 

In the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it is as unfair practice under section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.

 

If we do take any licensing action against this trader it is likely that we would need to disclose your identity to this trader along with details of your complaint. I should therefore be grateful if you would provide me with written authorisation to disclose these details to the trader. I have enclosed a disclosure consent form for you to sign and return to me in the enclosed freepost envelope.

[PriorityOne]

Excellent ! That looks promising Tifo... reads like they are taking you seriously. It's such a headache at times though...

 

Have to log off now... so will reply to any more posts tomorrow...

[tevion]

just my little bit of info. its illegal not to have a supervisor present. tell them that if you phone them again and make sure you tell them the phone call is being recorded for legal reasons. it may stop them mouthing off as much.

[NitrousOxide]

Hi,

Search my threads and you will see that they also cack themselves at the very mention of the words "reclaiming charges".

[tifo]

thanks ...

 

i'll take a look ...

 

does anyone have any suggestions for the letter before i post it? I have deliberately not asked for removal of the default, as i will do that in the next letter.

 

i need them to put themselves more in the sh*& before i do that.

[joesoap]

Is anything happening? No posts for a while. I'm persuing Freds for a CCA but the request wasn't signed for (I assume anyway as there's no proof of delivery, so I've had to go to the Postal Order transaction section to see if it's been cashed). It drags its heels as well.

[tifo]

Nothing for a while. They've gone all quiet.

 

However, i have sent them the letter asking for all payments back and compensation under DPA S.14 for processing my data.

 

I've also sent them a letter stating they are now in default and offence of my CCA s.78 request, so the debt is unenforceable.

 

The next stage is to send a DPA s.10 to cease and desist processing my data and then final stage will be court i think to make them comply with removing all my data and compensation.

[joesoap]

Tip top. It looks as though I'll be going down the same road.

[joesoap]

Waiting now for the 8th April, 42 days are up. Ive not heard a peep but they must have got my dispute letter (if not the CCA) as I haven't paid them owt recently and they've not come back, normally they are red hot.

[tifo]

they've sent me a statement.

 

interestingly, they wrote off the debt a few weeks ago and then added the same amount again, so leaves the same balance as before.

 

i wonder why?

[PriorityOne]

they've sent me a statement.

 

interestingly, they wrote off the debt a few weeks ago and then added the same amount again, so leaves the same balance as before.

 

i wonder why?

 

I had something similar on one of my accounts and when I queried it, they said :

 

"... part of internal procedure. Where the original loan term approaches expiry, but with a balance still outstanding, an internal adjustment is made to reflect the position of the account, ie, a balance still remains outstanding with no remaining term".

[joesoap]

I had something similar on one of my accounts and when I queried it, they said :

 

"... part of internal procedure. Where the original loan term approaches expiry, but with a balance still outstanding, an internal adjustment is made to reflect the position of the account, ie, a balance still remains outstanding with no remaining term".

 

So what, if anything, would show up on your credit report and are they saying that you don't really owe anything? In fact, do they know themselves what they are doning.

[tifo]

"... part of internal procedure. Where the original loan term approaches expiry, but with a balance still outstanding, an internal adjustment is made to reflect the position of the account, ie, a balance still remains outstanding with no remaining term".

 

But, in this case there is no 'loan term' as it was a credit card and no expiry i assume.

 

Also, the write off appeared just after they committed the non-compliance offence and after they told me they've sent it back to the original creditor, on an account they purchased and maintain a default on.

 

Maybe they wrote it off and decided to give it one more try?

 

Of course, they deny all allegations of unlawfully processing data etc. but have not yet provided any proof as to why the can do so.

[tifo]

Got back the original application form with Amex.

 

This contains no prescribed terms, or any that are legible, and is not signed by the Amex rep.

 

So, unenforceable? Should i send Fredrickson a nice letter telling them this?

 

[humbleman]

should also say Credit agreement regulated by CCA 1974

[psykix]

It does.. at the bottom left hand side..

 

Not signed by both parties though :-p

[tifo]

yes, it says regulated by CCA 1974 at the top next to the logo as well as at the bottom signature area.

 

But, it has not been signed by Amex which makes it unenforceable. I've sent them a polite letter stating this and to action what i asked for last time (return of all monies paid, removal of defaults and compensation).