American Express?

[vengeancedemon]

A brief Chronology

Amex Card, firstpursued by Creit Solutions in Summer 2007. CCA sent and defaulted on ( under old time frame)

OC did send a very poor quality of application form with a printed "Application Form"in two places covered with white labels ! - this on the photocopy of the application form rather obvious I thought. Nest page was very general T & C also almost unreadable such was the photocopy quality

 

Next Moorcroft had a go, and they were sent packing with the "Bemused" letter (late 2007-early 2008)

 

Cut forward to Aug 2008, a letter from Brachers "acting for" demanding full settlement plus a raft of their charges. They were sent a "Bemused letter and also a request for their official complaints proceedure, the numpties read this as to be forwarded to AMEX as a complaint on (Amex) proceedures, They still dripped on a bit, so copied the Bemused letter ( always sending everything RecDel) and finally sent them a letter suggested here to the effect that if they as solicitors did not understand about defaulted CCA then they should maybe ask a Judge to explain.

 

They then went quiet until yesterday, when I had a letter detailing Final offer a 50% payoff, ( no mention of fees/charges etc ) Not headed Without Prejudice or anything similar, sttlement to be made in seven days or legal proceedings MAY be commenced for full outstanding balance plus costsetc etc

 

Now, as I understand it, Credit Solutions are still in default of my 2007 CCA request, so they are the ones if anyone who should be pursuing, all others can Foxtrot O!

Second, If Brachers had a proper agreement to satisfy a court, why would they make an offer of 50% of the amount?

 

This leads me to believe that 1) Brachers have no right to pursue anyway

2) They( and no-one else can provise the proper paperwork

3) Brachers have so far ignored my section 10 DPA Sta Notice sent in Sept

 

What would be the best way to answer them? repeat a "Bemused" letter, with ammendements

 

Many thanks

[Monty2007]

A brief Chronology

Amex Card, firstpursued by Creit Solutions in Summer 2007. CCA sent and defaulted on ( under old time frame)

OC did send a very poor quality of application form with a printed "Application Form"in two places covered with white labels ! - this on the photocopy of the application form rather obvious I thought. Nest page was very general T & C also almost unreadable such was the photocopy quality

 

Next Moorcroft had a go, and they were sent packing with the "Bemused" letter (late 2007-early 2008)

 

Cut forward to Aug 2008, a letter from Brachers "acting for" demanding full settlement plus a raft of their charges. They were sent a "Bemused letter and also a request for their official complaints proceedure, the numpties read this as to be forwarded to AMEX as a complaint on (Amex) proceedures, They still dripped on a bit, so copied the Bemused letter ( always sending everything RecDel) and finally sent them a letter suggested here to the effect that if they as solicitors did not understand about defaulted CCA then they should maybe ask a Judge to explain.

 

They then went quiet until yesterday, when I had a letter detailing Final offer a 50% payoff, ( no mention of fees/charges etc ) Not headed Without Prejudice or anything similar, sttlement to be made in seven days or legal proceedings MAY be commenced for full outstanding balance plus costsetc etc

 

Now, as I understand it, Credit Solutions are still in default of my 2007 CCA request, so they are the ones if anyone who should be pursuing, all others can Foxtrot O!

Second, If Brachers had a proper agreement to satisfy a court, why would they make an offer of 50% of the amount?

 

This leads me to believe that 1) Brachers have no right to pursue anyway

2) They( and no-one else can provise the proper paperwork

3) Brachers have so far ignored my section 10 Data Protection Act Sta Notice sent in Sept

 

What would be the best way to answer them? repeat a "Bemused" letter, with ammendements

 

Many thanks

 

Dear vengeancedemon

 

My situation is similar to your own, Amex default then Brachers, they offered me 50% discount but had added 3,000 in fees. Brachers will almost certainly initiate legal proceedings against you. They were instructed to do this on me but I moved to Scotland so they had to wait a few months while I became domiciled. I got a Citation (court claim) last week.

 

I assume you are in England so you should look at the other Amex threads and post up the agreements that you have. What did they provide in the SAR?

 

I assume it is a credit card, when was it taken out, let us see what you have (remove personal details). The number of Amex cases has gone through the roof...................

[ScarletPimpernel]

From what you say, it sounds as if Amex did comply with the CCA request, albeit with the usual unenforceable application form. I am quite sure that even solicitors as apparently unaware of the law as Brachers appear to be must have realised by now that Amex's paperwork is a pile of unenforceable dog-toffee. You are right to think that the settlement offer shows that they are know this, deep in their black hearts.

 

Dear Dimwits

 

Thank you for your letter dated (date). My position in the matter was clearly set out in correspondence with your clients, a variety of debt collection agencies, and finally in my letter to you dated xx August 2008. For the avoidance of any doubt, my position remains unchanged.

 

Furthermore, on (date) I sent you a Notice pursuant to s.10 of the Data Protection Act 1998, to which you have failed to respond.

 

In the circumstances, I am unable to enter into further correspondence. Any proceedings brought will be robustly defended, and you and your client's failure to comply with legal and regulatory obligations will be brought to the Court's attention.

 

If you do not understand this letter, you should seek advice from a professional legal firm.

 

Yours etc.

 

or

 

Dear Dimwits

 

Thank you for your letter dated (date). I refer you to my letter dated xx August 2008 which set out my position, and to the answer given in Arkell vs. Pressdram.

 

Yours etc.

[Monty2007]

From what you say, it sounds as if Amex did comply with the CCA request, albeit with the usual unenforceable application form. I am quite sure that even solicitors as apparently unaware of the law as Brachers appear to be must have realised by now that Amex's paperwork is a pile of unenforceable dog-toffee. You are right to think that the settlement offer shows that they are know this, deep in their black hearts.

 

 

 

or

 

This is bad advice.

 

Brachers are a legal firm. I don't think that there is any point winding them up personally. Stick to trusted and tried methods, they will produce any threats etc in court since they will issue proceedings. Read the other Amex threads.

[ScarletPimpernel]

This is bad advice.

 

Brachers are a legal firm. I don't think that there is any point winding them up personally. Stick to trusted and tried methods, they will produce any threats etc in court since they will issue proceedings. Read the other Amex threads.

 

 

You are, of course, entitled to your view.

 

I have successfully used versions of both the above letters with legal firms (DG Solicitors, LCS and Mishcon De Reya). Just because Brachers are a legal firm doesn't mean they what they say is correct, or that they will not resort to unscrupulous methods. Indeed, from reading other Amex threads, and from my own experiences of 4 Amex accounts, their solicitors, and particularly Brachers, bring proceedings when they think they can get a default judgment. They do push to the wire, but they can see a lost cause as clearly as anyone else.

 

In my view, it is necessary to take a robust line with solicitors, especially second-rate firms like Brachers who are essentially the same as a DCA. Of the 40+ staff they employ in their debt collection division they have 2 solicitors, one of whom is a consultant, and another who specialises in commercial insolvency. All the other staff are unqualified.

 

No doubt OP will decide which course of action to pursue.

[Monty2007]

Quote:

Dear Dimwits

 

Thank you for your letter dated (date). My position in the matter was clearly set out in correspondence with your clients, a variety of debt collection agencies, and finally in my letter to you dated xx August 2008. For the avoidance of any doubt, my position remains unchanged.

 

Furthermore, on (date) I sent you a Notice pursuant to s.10 of the Data Protection Act 1998, to which you have failed to respond.

 

In the circumstances, I am unable to enter into further correspondence. Any proceedings brought will be robustly defended, and you and your client's failure to comply with legal and regulatory obligations will be brought to the Court's attention.

 

If you do not understand this letter, you should seek advice from a professional legal firm.

 

 

 

 

The last sentence is out of order and will simply get their backs up.

 

They have offered 50% settlement, not a bad offer, though depending on what costs they have added. I was offered the same by Brachers after the usual run-around in respect of the credit agreement (do they have one - do they not?). This offer is worthy of consideration. The next step, in my direct experience with Brachers is that they will issue a claim for the full amount + costs. They were about to do that with me (as shown in my Amex SAR) but I moved to Scotland. This is academic since I have one anyone from a Scottish lawyer.

I don't think you advice is appropriate and would suggest the OC considers the offer from Brachers and understands the process going forward if he/she rejects the offer. That is my point as is the unnecessary advice you gave in winding them up. Not a good idea.

[Monty2007]

Quote:

Dear Dimwits

 

Thank you for your letter dated (date). My position in the matter was clearly set out in correspondence with your clients, a variety of debt collection agencies, and finally in my letter to you dated xx August 2008. For the avoidance of any doubt, my position remains unchanged.

 

Furthermore, on (date) I sent you a Notice pursuant to s.10 of the Data Protection Act 1998, to which you have failed to respond.

 

In the circumstances, I am unable to enter into further correspondence. Any proceedings brought will be robustly defended, and you and your client's failure to comply with legal and regulatory obligations will be brought to the Court's attention.

 

If you do not understand this letter, you should seek advice from a professional legal firm.

 

 

 

 

The last sentence is out of order and will simply get their backs up.

 

They have offered 50% settlement, not a bad offer, though depending on what costs they have added. I was offered the same by Brachers after the usual run-around in respect of the credit agreement (do they have one - do they not?). This offer is worthy of consideration. The next step, in my direct experience with Brachers is that they will issue a claim for the full amount + costs. They were about to do that with me (as shown in my Amex Subject Access Request) but I moved to Scotland. This is academic since I have one anyway from a Scottish lawyer.

 

I don't think you advice is appropriate and would suggest the OC considers the offer from Brachers and understands the process going forward if he/she rejects the offer. That is my point as is the unnecessary advice you gave in winding them up. Not a good idea.

[rory32]

I think in these situations you do what you are comfortable with. The last lot of solicitors who were going to make me bankrupt - no we might make you bankrupt in their threatograms - I had great fun in winding up (excuse the pun) before their client finally upped sticks and peed off never to be heard of again.

[Rayne]

I would have to go with SP on this one - why pay ANYTHING if the debt is totally unenforcable? I'm not advocating debt avoidance by any means but they surely need to at least PROVE they're entitled to collect the alleged debt?

[Monty2007]

A brief Chronology

Amex Card, firstpursued by Creit Solutions in Summer 2007. CCA sent and defaulted on ( under old time frame)

OC did send a very poor quality of application form with a printed "Application Form"in two places covered with white labels ! - this on the photocopy of the application form rather obvious I thought. Nest page was very general T & C also almost unreadable such was the photocopy quality

 

Next Moorcroft had a go, and they were sent packing with the "Bemused" letter (late 2007-early 2008)

 

Cut forward to Aug 2008, a letter from Brachers "acting for" demanding full settlement plus a raft of their charges. They were sent a "Bemused letter and also a request for their official complaints proceedure, the numpties read this as to be forwarded to AMEX as a complaint on (Amex) proceedures, They still dripped on a bit, so copied the Bemused letter ( always sending everything RecDel) and finally sent them a letter suggested here to the effect that if they as solicitors did not understand about defaulted CCA then they should maybe ask a Judge to explain.

 

They then went quiet until yesterday, when I had a letter detailing Final offer a 50% payoff, ( no mention of fees/charges etc ) Not headed Without Prejudice or anything similar, sttlement to be made in seven days or legal proceedings MAY be commenced for full outstanding balance plus costsetc etc

 

Now, as I understand it, Credit Solutions are still in default of my 2007 CCA request, so they are the ones if anyone who should be pursuing, all others can Foxtrot O!

Second, If Brachers had a proper agreement to satisfy a court, why would they make an offer of 50% of the amount?

 

This leads me to believe that 1) Brachers have no right to pursue anyway

2) They( and no-one else can provise the proper paperwork

3) Brachers have so far ignored my section 10 Data Protection Act Sta Notice sent in Sept

 

What would be the best way to answer them? repeat a "Bemused" letter, with ammendements

 

Many thanks

 

IMO

1. Brachers do have the right to pursue; they are a legal firm acting on behalf of Amex, and have a look at the other Amex threads. They are increasing in number so there is a lot of precedent for you to look at.

2. They should have provided you with an application; in my case they also provided a copy of a credit card back portion and T&C's claiming that they would use this to support their claim.

3. They are not data controllers so will ignore your S10, I reported them to the ICO who investigated them and came back with this opinion.

 

In respect of 3, I had made offers of 20% then 30% to settle (without prejudice) and Brachers did not pass the offers onto Amex so I claimed that they were data processors on this basis (i.e. making decisions without Amex on settlement terms so they must be processing). The ICO ruled in the favour or Brachers. This is real experience of dealing with this firm, as I mentioned they ARE solicitors and you can check their website:

 

South East and Kent Solicitors - Brachers Solicitors: Legal Services in Kent and South East

 

please read the other Amex threads and think carefully about your response. If they are threatening legal action then see the threads on CPR processes (assuming you are in England).

[Monty2007]

I would have to go with SP on this one - why pay ANYTHING if the debt is totally unenforcable? I'm not advocating debt avoidance by any means but they surely need to at least PROVE they're entitled to collect the alleged debt?

 

Hey, why don't we have a vote?

 

They will persue this, no doubt about it. 50% is not a bad offer, I would probably take it now having dealth with them for 3 years and now facing a court action in Scotland. Get real.

[Rayne]

Ok so what you're in effect saying, and please feeel free to correct me, is if I instruct a firm of solicitors to pursue an alleged debt and supply them with a set of T&C's, and the back portion of a cc, then you'll pay me? Kewl, what's the address, I'll get right on it. Apologies for my flippancy but that's the way I'm reading it.

 

Consumer Credit Law is VERY clear on the requirements on this and so far those requirements have failed to be met, ergo, no enforcable agreement, therefore no debt UNDER LAW.

 

Again I'm not advocating debt avoidance in any way shape or form but the DCA's / solicitors are fully aware of the legal requirements, in order to actually prove the debt, or should be, and they are failing badly.

[Monty2007]

Ok so what you're in effect saying, and please feeel free to correct me, is if I instruct a firm of solicitors to pursue an alleged debt and supply them with a set of T&C's, and the back portion of a cc, then you'll pay me? Kewl, what's the address, I'll get right on it. Apologies for my flippancy but that's the way I'm reading it.

 

Consumer Credit Law is VERY clear on the requirements on this and so far those requirements have failed to be met, ergo, no enforcable agreement, therefore no debt UNDER LAW.

 

Again I'm not advocating debt avoidance in any way shape or form but the DCA's / solicitors are fully aware of the legal requirements, in order to actually prove the debt, or should be, and they are failing badly.

 

Thanks for the offer to correct you which I will take. I have dealt with Amex and Brachers for 3 years and would advise the OP to consider their offer on the basis on which it is offered. If the account was opened prior to 2005 it is likely (but not certain) that Amex do not have an enforcable credit agreement. Brachers follow a common theme, chase, offer to settle at 50% and then litigate. Simple as that.

 

The OP asked three questions which I have answered based on what I found with Brachers in my dealings and also with regards to his S10 request. Irrespective of whether the agreement is enforcable the debt will remain and they will update his CRA files. They are also devious as pointed out above and there have been about 5 new Amex threads this week.

 

What you may be assuming is that Amex do not have an enforcable agreement, only Amex know since they do not have to produce it even under an SAR or S78 request - but if you read the CPR 31.16 thread this may be the answer but the OP needs to decide.

 

why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement - The Consumer Forums

[Rayne]

I have no issues being corrected and I welcome your correction

 

Moving on, surely the whole purpose of a Subject Access Request request is that ALL information held about a data subject is disclosed? I would have thought that if not disclosed then they're non-complying?

 

EDIT: Sorry, just occurred to me, surely also the RIGHT to collect the ALLEGED debt in the first place still has to be proven?

Edited December 18, 2008 by Rayne

[ScarletPimpernel]

I don't want an argument over my post to pull Vengeancedemon's thread off topic, and nor do I want to fall out with anyone.

 

For me the fundamental thing here is what Rayne has alluded to; American Express do not have an enforceable agreement, and if it goes to court and is defended, they will lose. They will not be able to ask the Judge to let them win because a letter demonstrated that writer is aware that they are full of bullsh1t; the Judge won't let them win because they were upset at being told to get lost in an amusingly legal way. All that matters is the law, and if they cannot meet the requirements to enforce, they won't be allowed to.

 

So, given that they cannot win in Court, one can only surmise that Brachers are trying to intimidate.

 

It could be argued that a solicitor who is acting for a client who has a hopeless case has a duty to tell him that he can't win. However, ultimately solicitors are like prostitutes - they will do whatever the client wants as long as they get paid.

 

I don't see any need to be scared by solicitors. In each of my 4 cases I've had the same harassment from various DCAs; the same rubbish from Amex, and the same nonsense from lawyers. Number of cases threatened with court = 4. Number of cases actually dealt with in Court = Nil.

[Monty2007]

I have no issues being corrected and I welcome your correction

 

Moving on, surely the whole purpose of a Subject Access Request request is that ALL information held about a data subject is disclosed? I would have thought that if not disclosed then they're non-complying?

 

Thanks and a good point. There is another post which deals with the Subject Access Request request and my understanding is that the OC only has to provide what is essentially readily available from current systems (or words to that effect), so if the credit agreement is tucked away in some obscure archive system then they don't have to go out of their way to get it. There is some case law on this, I will try to find the thread and post it up.

 

We have all seen the responses to S78 requests and it is of little use since in most cases you will get either an application with T&Cs or a reconstructed agreement which is of less use.

 

I do agree that it is unlikely (but not impossible) that Amex don't have anything other than an application form which will be unenforacble - but the OC needs to post it up and let us know which year the account was opened. The worst case scenario is that he gets a summons and then they show an enforceable agreement in court or during the disclosure phase which is where I am with my case.

Edited December 18, 2008 by Monty2007
sp

[Monty2007]

Quote:

Originally Posted by pt2537

only if the agreement is held in a relevent filing system under the Data Protection Act are they required to disclose it

 

Also there was a case a while ago,Ezsias v Welsh Ministers - [2007] All ER (D) 65 (Dec) which held that the data controller could escape disclosing the documents if it is disproportionate to search large archives etc, so the lender can get away in these circumstances by saying that their archives were so extensive that it would be disproportionate to conduct a search of each folder to find your document , their get out per Ezsias would be that they confirm that they do indeed hold the document

 

so the Data Protection Act does have flaws im afraid, as does the Consumer Credit Act 1974

 

from

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use-5.html

 

[Rayne]

Nah I ain't falling out with anyone here, too old for that now lol (god did I REALLY just say that????)

 

I think in all the cases on here case law can be found to support pretty much ANY arguement either way, and, as has already been stated by all, the OP should decide on what THEY consider to be the best course of action in their own case.

 

With regards to "full disclosure" under the DPA I take it you refer to the part that states "The obligation imposed by section 7(1)©(i) must be complied with by supplying the data subject with a copy of the information in permanent form unless—

 

(a) the supply of such a copy is not possible or would involve disproportionate effort, or

 

(b) the data subject agrees otherwise; "

 

 

which basically blows goats as ANYONE can claim "disproportionate effort"

[ScarletPimpernel]

In terms of credit agreements, it's not unreasonable to suppose that creditors will have these archived in some way that makes them easiy retrievable - filed alphabetically, for example. The only circumstance in which I think they can use the disproportionate effort excuse is where the document isn't where they expected it to be, because they have lost or misfiled it.

 

It seems to me that if they claim that they are unable to provide an agreement under a SAR because it would involve disproportionate effort, then they shoot themselves in the foot as far as any enforcement is concerned.

[Rayne]

Yeah that would make perfect sense especially if they later decided to produce it in any subsequent court case. There would certainly be a paper trail of request / cba to look and to then produce it in a case, I'm sure the judge wouldn't look on them favourably for that one

[vengeancedemon]

Thank you all for your thoughts and a most interesting discussion, I have gleaned much information

 

At the moment, I intend to go down the road of a variation of the letter suggested that one is suprised to have to advise a firm of solicitors etc.

I have also advised them that as they have not complied with my S10 DPA and request for details of their official complaints proceedure as my letter of early Sept then I am considering making report to relevant Statutory bodies ( for all the good that may do!)

 

In the meantime, my CCA request still remains in default as the proper docs have not been forthcoming

[vengeancedemon]

Suprisingly, a very prompt reply from Brachers

I sent the, as said a modified version of the letter outlined earlier, calling their attention to their failure to address my comments in my "Bemused" letter of September, and as they were acting for AMEX, I wanted details of their complaints proceedure.

You will see from the attched letter thatthey are twisting and whining about "its nothing to do with us"

Surely it is though, you come on all threatening and demanding, you must accept the duties and responsibilities. My feelings are that as my original request for their complaints process was in September, and not complied with I should complain to is it FSAor FOS? also, they have not complied with a s10 DPA, so thats Info comms!!

Any thoughts

A Happy Christmas to all CAGgers

[vengeancedemon]

Any thoughts?

[ScarletPimpernel]

How quickly they slope their shoulders!

 

Brachers, a firm that claims to specialise in debt collection, cannot pretend not to be aware of the relevant legislation.

 

I'd write to the Senior Partner:

 

Dear Condom

 

Thank you for your letter dated (date), the content of which is noted.

 

When I asked, in my letter of (date), for a copy of your complaint procedure, I expected you to send me a copy of your complaint procedure, as required by the Consumer Credit Act 2006 - had I wished to complain to your client, I would have done so. The Act does not require you to determine whether or not the issues are best dealt with by you or your client; you are simply required to send out a copy of your complaint procedure. I find it bizarre that a firm of solicitors that claims to specialise in debt collection does not apparently understand such a simple obligation under statute law fundamental to debt collection.

 

The position now is that my original complaint was made in September 08. You have failed to comply with my request for a copy of your complaint procedure; you have failed to respond to the points I raised in my letter of complaint (the time limit for which is eight weeks); and you have failed to respond to the Notice pursuant to s.10 of the Data Protection Act 1998 (the time limit for which is 21 days) served upon you on (date).

 

I am prepared to allow you until (date early in Jan 09) to provide me with the following:

 

i. a copy of your complaint procedure

ii. your final response to my complaint

iii. a proper response to the Notice under s. 10 of the Data Protection Act 1998

 

If I have not received all of the above by (date referred to above), I will, without further notice to you, raise formal complaints with the Financial Ombudsman Service, the Information Commissioner and the Legal Complaints Service. I may also bring proceedings to enforce the s.10 Notice.

 

Take notice that if any proceedings are brought in this matter by you or your client, your wholly unsatisfactory response to my reasonable complaint will be brought to the attention of the Court.

 

Yours etc.

[vengeancedemon]

Excellent, thank you very much, this will be on its way on Saturday, Recorded I presume?

 

I have given them until Friday Jan16th 2009

 

Best wishes and have a good Xmas

 

VenDem