AlphaGeeK Vs Amex ***WON***

[Alphageek]

Are there any PoCs for Amex? I think it's time to issue an N1.

[steven4064]

I don't know of one for Amex in particular (although there may be if you search). All these CC companies are very similar - you could base your POC on my GE Money one which is posted on my thread

[harvey626]

Hi everyone, long time lurker on here and have been reading everything my (now square shaped) eyes could take in over the past couple of weeks.

 

I think I know what to do to get the ball rolling, but am going to post here for 2 reasons.

 

First, so you people who are further along and more experienced than I can (if you're feeling helpful) keep me on the right track should I start to veer off in the wrong direction.

 

Secondly (and more importantly), to try and keep this thread as informative as possible so any other people who have suffered at the hands of the illegal actions of the parasitical financial institutions will feel that they are empowered to claim back their rights (and money, interest and possible damages).

 

Some of the stories you read on here are nothing short of scandalous. The lengths the lending institutions, banks, debt collection agencies and bailiffs go to is unbelievable.

 

Fortunately, it seems we have good laws in this country and it seems fairly straightforward to get them off your backs and to refund any unlawful charges they have taken.

 

My 1st tip for any lurkers reading this is to get started as soon as you find yourself having issues with any lenders or want to claim back your money. Giving the lenders any more time to harass you only benefits them.

I am 3 months behind on my charge card. I had fraud on the account which took them longer to start harassing me. Now they want everything paid by Friday. I do not want to get a summons but can't pay them for at least 2 months. Can I try to enter into an arrangement directly with them? Any advice?

[steven4064]

Welcome to CAG harvey

 

One question first of all - was the fraud sorted out?

 

Either way, you should at least talk to them and tell them how the fraud has slowed things up. They may agree to let you pay a little for the next couple of months and then start repaying properly after that. You have nothing to lose by asking.

 

Once you have spoken to them, let us know how you get on. We'll be able to offer advice on how to proceed. Start your own thread though so that it doesn't all get muddled up with Alpha's. If you don't know how to do that - you click on the button at the bottom of the forum

[Alphageek]

Hi everyone,

 

Quick update. I have not had time to work up a PoC for the N1 with this case so far. Too many others going on.

 

However, Brachers are the latest to try and get me to pay back what I don't owe.

 

I am going to work on PoC and and N1 over the next few days. Who thinks I should name Brachers as co-defendant?

[steven4064]

Are Brachers a DCA?

[Alphageek]

Hi Steven, no they're solicitors.

[steven4064]

Then I don't think you can name them as co-defendants. But i guess you knew that

[Alphageek]

This is my 1st draft. It pretty much is the same as my CapOne and Barclaycard POCs which I took from this site. I have amended Schedule One to reflect Amex's T&Cs.

 

I just need a little more work to go between points 6 and 7 to say they defaulted on the agreement when I asked for a copy agreement. They have applied interest post default (which they're not allowed to do, right?) and I have included them in the SOC.

 

Should be done tomorrow and file on Weds.

 

Any comments?

 

 

Claim No [ ]

 

IN THE PLACE COUNTY COURT

 

BETWEEN

 

ALPHAGEEK

Claimant

 

and

 

AMERICAN EXPRESS SERVICES EUROPE LIMITED

 

Defendant

 

 

PARTICULARS OF CLAIM

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xx/xx/19xx, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no 0000 000000 00000 ("The Account").

 

2.The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”) which would allow the Claimant to make purchases and receive cash advances on credit. In return the Defendant was entitled to charge interest at the published rate.

 

3.The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.

 

4.At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time.

 

Summary

 

5. Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment is returned. (Full particulars are set out in schedule 2).

6.The default charges were applied in accordance with the standard terms of The Agreement which were:

a). A penalty payable on breach of contract and thus unenforceable: and

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

 

7. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account.

 

The Charges

 

8. The standard Terms of the Agreement in substance provided as follows:

(a) The Defendant would provide the Claimant with the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.

(b) The Defendant was entitled to charge interest on the purchases and cash advances at the published rate.

© The Claimant was to pay the minimum payment of 2.5% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

(d) In addition the Defendant was entitled to charge default fees (“the Charges”) where the Claimant exceeded the Limit, did not pay on the due date or had a payment returned. The Charges are currently £25 for each transgression. Prior to 2006 the Charges were various amounts including, but not limited to £12, £15 and £20.

 

Penalty

 

9. The Charges were payable on breach of contract by the Claimant.

 

10.The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Claimant’s transgressions.

 

11. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

The Regulations

 

12.At all material times the Claimant was a consumer within the Regulations.

 

13. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.

14. Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

(1)The terms relating to Charges were standard terms; they would not be individually negotiated.

(2)The Charges were a penalty for breach of contract.

(3)The Charges exceeded the costs which the Bank could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

(4) Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

(5) As the Bank knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

(6) As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable.

 

15.Without prejudice to the burden of proof, the Claimant will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

(3) The Charges are correctly described as default charges by the Defendant in the key information provided to new customers.

 

16. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

17. (a) The Defendant wrongly applied Charges to the Account totalling some £5xx.xx between xx-xxx-xxxx and xx-xxx-xxxx. Particulars appear from Schedule 2.

(b) The defendant wrongly reported the account status to third-party data controllers including, but not limited to, Experian, Equifax and Callcredit.

 

18. On xx xxx 2008 the Claimant demanded repayment of the sums wrongly applied.

 

19. The Defendant has not repaid them or any of them.

And the Claimant claims

(1) A declaration that the sums totalling £5xx.xx have wrongly been applied to the Account.

 

(2) Payment of the said sum of £5xx.xx and interest of £4xx.xx applied by the Defendant thereon.

 

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Charge to date in the sum of £1xx.xx, and at the daily rate of £0.xx until judgement or sooner payment.

 

(4)Removal of incorrect account status data from third-party data controllers including, but not limited to, Experian, Equifax and Callcredit.

(5) Court costs of £xx.

I believe that the facts stated in these particulars, comprising of 6 pages, are true.

 

Dated

 

 

 

Signed

Schedule 1

 

From the Terms and conditions currently enforce (as of May 2007).

 

From Key Financial Information (May 2007)

 

2. Credit Limit

 

We will decide, at our discretion, your Credit Limit from time to time and inform you what it is. We may vary these limits from time to time.

3. Payments

Payments must be made monthly. The minimum amount you need to pay us each month will be 3% of the total amount owing or £5, whichever is more. You can also pay anything up to the full amount you owe, if you wish. Payments must be received by us within 25 days of the date of the statement we will send to you. This final date upon which we must receive payment will also be shown on the statement.

7. DEFAULT AND OTHER CHARGES

7.1 If we have not received the minimum payment specified in your monthly statement within 25 days of the date of the statement, we reserve the right to impose a £25 Account supervision fee which will be payable by you.

7.2 If you pay us with a cheque or direct debit and your bank does not honour the cheque or the direct debit, we will charge you a £25 return payment fee to cover costs we incur. You are also responsible for any costs that we have to pay in recovering overdue payments from you. This includes costs we may incur in using a third party, such as a solicitor, and any costs that they themselves incur in trying to recover a debt on our behalf.

7.3 If the balance on your Account is over the Credit Limit, a £25 over limit fee will be payable by you in respect of the month in which your Account is over the Credit Limit.

 

MISSING PAYMENTS

Missing payments could have severe consequences and make obtaining credit more difficult.

Schedule 2

SOC

 

[Alphageek]

The dangers of prevarication!!

 

I have received a Court Claim (from MCOL by the looks of it) filed by Brachers on behalf of Amex. Oh well, I guess it has saved me the Court fee.

 

The despicable pigs have sent it to one of my previous addressed they found via the CRAs. My Amex account has never had that address on it.

 

I wonder why they chose to serve me at an address they have never used? Oh, I know - they don't have a hope in hell of winning LOL

 

I will post full details up when I get home. I get the feeling I am going to enjoy this.

[steven4064]

You will need to change the above POC into a defence and counter claim (the counter claim will attract a court fee )

[Alphageek]

This is Brachers' prelim letter, sent to the address AMEX have on file for the account and have been using since late in 2003.

 

Dear Sir

27th March 2008

 

(1)American Express Services Europe Limited ("Amex")

(2)Card Number 000 000000 00000

(3)Statement Balance £x86.x6

(4)Collection Costs pursuant to your Credit Agreement £157.83

(5)Total Due £1xxx.xx

 

We act for Amex. You owe our Client £1xxx.xx being the outstanding balance on the Amex credit card issued to you under the above card number. The card was issued subject to an agreement regulated by the Consumer Credit Act 1974 (as amended). You are now liable to make payment of the full outstanding balance as set out above.

 

If you have not paid in full, or come to an arrangement

with us to pay, within seven days from the date of this letter, our instructions are to issue legal proceedings against you to recover the debt plus interest and costs without further notice.

 

All payments must be sent here and made payable to this firm. Please use the attached response page when making payment. If the Amex card is still in your possession you must cut it into two pieces and return it to us in the pre-paid business reply envelope provided.

 

We will try to speak to you by telephone within the next 48 hours to discuss repayment with you.

 

Remember, it is in your own interest to pay as soon as possible as your ability to obtain further credit may be affected until you have paid.

 

You may wish to seek independent legal advice. We look forward to hearing from you.

 

Yours faithfully

BRACHERS

Enc.

 

Response Page

Pre-paid business reply envelope

 

I won't bother posting their BS Response Page.

[Alphageek]

And then, dated 4th April, sent to an address AMEX have never had on file for the account, their LBA.

 

-Dear-Sir

 

American Express Services Europe Limited and Yourself Card Number 0000 000000 00000

We write further to our letter of 27 March 2008 and are disappointed to note that as this matter has not been resolved to our Client's satisfaction; our Client is left with no alternative than to commence legal proceedings against you.

 

Our client has generously agreed to withhold any action for a period of 48 hours from the date of this letter to allow you a final opportunity to pay your indebtedness.

 

Please note that if payment of the full outstanding balance is not received within that period, legal action will then be commenced without further notice for the full outstanding balance, plus interest and costs. Once such proceedings have been issued, they will be pursued to their conclusion.

 

Yours faithfully

 

BRACHERS

 

[Alphageek]

And then the N1 (issued from Maidstone, not MCOL), sent to same address, dated 15 April 08

 

Particulars of Claim Money due for Creditcard services supplied (xxxx xxxxxx xxxx) to and at the Defendant's request as detailed in monthly statements rendered culminating 13 March 2008

 

Sum due at 13 March 2008

 

9xx.xx

 

Add file referral charge 157.83

Less credit 0.00

 

Statutory Interest from

13 March 2008 to date at 8% per annum

 

30x0.25 per day currently 7.53

 

Add subsequent debits 0.00

 

The Claimant claims 1xxx.8x

 

Plus continuing Statutory Interest at 0.25 p

per day until Judgment or sooner

payment pursuant to section 69 of the County

 

The Claimant believes that the facts stated in this claim form are true and I am duly authorised by the claimant to sign this statement

 

signed BRACHERS

 

Amount claimed 1xxx.8x

Court fee

65.00

Solicitor's costs

80.00

Total amount

1xxx.x2

 

 

Are file referral charges as in

 

Add file referral charge 157.83

Against OFT guidelines and/or unlawful?

[Alphageek]

Some advice please. The N1 was issued on 15 Apr 08, deemed served on 20 Apr 08. That would give me to 04 May 08 to file an Acknowledgment of Service and a further 14 days to 18 May 08 to file my defence.

 

I will be out of the country from 12 May to 27 May so should I just stop waffling on and file my counterclaim?

 

I know the Courts don't work too fast but I don't want them sending me things while I am away.

 

I guess the best thing would be to file Acknowledgment on or around 1 May and Counterclaim on or around 9 May 08.

 

Also, Form N9B, section 4, how does this read?

 

My claim is for (please specify nature of claim)

Repayment of unlawfully levied charges and interest, plus s69 interest at 8% per annum.

What are your reasons for making the counterclaim?

The defendant, contrary to the consumer credit act 1974, does not have an agreement under which it purports to run the account it referrers to in its claim, has unlawfully debited amounts from time to time to the account in question and contrary to the data protection act 1998 unlawfully processed data where I am the data subject. The claimant's actions have caused me financial loss and damage to my creditworthiness.

[steven4064]

Yes but in "defence" put "attached" and do a proper defence and counterclaim. The defence should be somnething like this: http://www.consumeractiongroup.co.uk/forum/legal-issues/133928-cl-finance-howardchoen-please-5.html#post1456833 and the counterclaim based on a normal POC for bank charges http://www.consumeractiongroup.co.uk/forum/bank-templates-library/122528-credit-card-charges-poc.html

[Alphageek]

Thanks Steven, I will read those in the morning.

[Alphageek]

Have printed up the Request for Information under CPR rules letter and will mail to Brachers in the morning via RM RD.

 

I have decided I might as well send the Acknowledgment of Service. No use in prolonging their misery too much longer and as I have the POC worked out already it will be pretty easy to adapt to a counter claim.

 

This will give them to 9th May to ante up. In the meantime I will prepare the "embarrassed at pleading to the particulars" defence and counter claim.

[Alphageek]

Do I have to "contest jurisdiction" to have the case transferred to my local Court?

[steven4064]

Do I have to "contest jurisdiction" to have the case transferred to my local Court?

You can do this when you fill in the allocation questionnaire

[Alphageek]

Thanks, both mailed.

[Alphageek]

Request for Information under CPR rules letter delivered and signed for yesterday, 28th April.

[Alphageek]

Received from Brachers.

 

Dear Sir

American Express Services Europe Limited and Yourself Card Number x

 

We write further to the above matter and your 24 April 2008 letter.

 

We note that you have requested various documents in relation to our client's claim against you.

 

However, we refer you to the Claim form and Particulars of claim, dated 11 April 2008, which states the basis of our client's claim pursuant to Civil Procedure Rules 1998, Rulel6.

 

In any event, the Civil Procedure Rules 1998, Rule 31 provides for the Disclosure of documents and confirms that the appropriate time is following allocation. Additionally, copies of many of the documents you have requested, such as the Statements of account, have already been provided to you by our client.

 

If it was your intention to make a Subject Access Request under the Data Protection Act 1998, which is not clear from your correspondence, we request you reply to our client enclosing the requisite fee.

 

In the meantime, we note that you have failed to file an Acknowledgement of service or a Defence to the claim, which were due on or before 28th April 2008. Although this date has now passed, we confirm that we will allow you until 8th May 2008 in order to reply to the claim. Failure to provide a Defence by the said date will result in our client applying to the court for Judgment in default without further notice.

 

Yours faithfully

 

Phoned the Court and they have the Acknowledgement of service but it was in a backlog.

 

I think I am beginning to like Brachers... they are digging a nice big hole for themselves.

[Alphageek]

In the meantime, we note that you have failed to file an Acknowledgement of service or a Defence to the claim, which were due on or before 28th April 2008.

Stupid fools, the issue date was 15 Apr 2008. Deemed served 20th, add 14 days = May 4 2008.

 

Although this date has now passed, we confirm that we will allow you until 8th May 2008 in order to reply to the claim.

How very kind of them.

 

Please spare me 8 to 12 weeks of having to deal with some junior buffoon and put a real solicitor on the case

[Alphageek]

Question:

 

When I am writing the Defence I refer to myself as the defendant and Amex as the claimant but when I get to the Counterclaim section do I then refer to myself as the claimant and Amex as the defendant?