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AlphaGeeK Vs Amex ***WON***

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Hello DD!

 

Not wishing to hi-jack Alphageek's Thread, but if I can quickly add a comment for Desperate Daniella:

 

In that CA box it refers to "Terms and Conditions set out overleaf", so at some point Amex wised up to the fact that the prescribed terms had to be within the document and not on a separate leaflet. I really need to find out the date when this happened.

 

DD, I'd be cautious of what you are seeking!

 

I think you may be in danger of looking at this issue from the wrong perspective.

 

Amex want people to believe their stories about what would've been on the rear of their many flavours of Application Forms.

 

It's arguable that Amex only wised up to where the Prescribed Terms need to be very recently! Hence the near complete lack of any Originals, and the near total substitution of these by claims of what would've been there instead.

 

If something is missing, it's much easier to lose the evidence and then claim the thing you wanted there, was there all along!

 

It's much harder to want something to be there, and only have highly inconvenient Original evidence showing it was just never there.

 

Without an Original copy, it's their job to prove what was there, not your job to prove what was not there (because you can't ever prove it without the Original).

 

Application Forms may well have had some Terms on the back, but who knows what those Terms were? Most banks will issue a large number of general Terms, and these can be placed almost anywhere, on the back or within another Document.

 

So, a reference to something being overleaf does not say, either way, if what was overleaf happened to include the Prescribed Terms, or just general Terms, or perhaps mis-stated Prescribed Terms rendering the alleged Agreement Unenforceable even when most of the Terms needed may've been there.

 

Given the range of Application Forms Amex had Printed, and the no doubt numerous Printing Runs they needed, without an Original, who is to say what was on the rear.

 

Two Application Forms could be identical on the Front, but could be wholly different on the back. That could be because one was an update that included Terms, or another could be from a Printing Run that had omitted anything at all owing to, say, a Client error, Pre-Press error or Printing Press error.

 

Who knows if a batch of Application Forms went out with blank rears?

 

Who knows what was on the rear if there is no evidence apart from a wishful Bank Executive's Witness Statement swearing blind what would've been there (provided they keep their fingers crossed that they will be believed)!

 

So, I would concentrate on the issue of the Original alleged Agreement.

 

Keep pressing Amex to produce that, as they should've kept that. Use s78(1), use Subject Access Request, use CPR 31.14 and CPR 31.16, but do not let them off the hook. Keep asking, and keep on asking.

 

The key is to bring this issue to the attention of everyone, and don't let Amex sweep the issue under the nearest carpet.

 

They have lost the thing they should've kept, why is something they should be made to explain. Stress CPR PD 16 7.3, and stress how few people can get by in life without an Original copy of a written Agreement or other key Document.

 

Amex deserve to be made to look very foolish for misplacing so many Agreements. If I were you, I'd put all efforts into that aspect. By all means research the dates issue, but if you are not careful, you may end up with an answer that Amex wants, even though it may be totally meaningless for the reasons outlined above.

 

The Original Agreement = Evidence

 

A Copy = hearsay evidence!

 

Read up on The Civil Evidence Act 1995 for the low down on hearsay evidence, and what is required to give it any credibility at all. Hint...a pompous Witness Statement from a banking Big Wig who was never there at the time, is not sufficient!

 

I hope this helps.

 

Cheers,

BRW

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Hello Alphageek!

 

Any advice on what I should say to her; 1: if she rings and 2: if she doesn't ring and I have to call her?

 

I don't mean this in the same way as DCAs...but it may be wise to keep this in writing.

 

This is just to protect you in case Amex try to exploit the Court issue.

 

If you only made contact with the Court via Telephone, there may not be a record of the Calls...i.e. the person you called could go under a bus the next day, and with them any evidence of your Calls!

 

i.e. if the Court can lose whole Documents, I'd just make sure your backside is covered! By all means Call the Court, but maybe follow the Call up with a summary letter and send it via Special Delivery.

 

It's not quite the same thing, but I have one bank trying to claim that my S.A.R. Request didn't include Payment, and then another letter from them saying I never signed the S.A.R. letter!

 

Unfortunately for them, I always Scan the Signature Page from my letters to banks (so I can recognise it if I see it again, including the subtle little changes I added to the Signature). I also scanned the Postal Order. So, my rear is covered. But, it's still hassle, because now I have to complain to the Information Commissioners Office and write to the Post Office to see if the Postal Order has been cashed, and when.

 

But, without all that back-up, it would be even harder. The bank only wrote to tell me all this at +40 Days, so they are clearing playing delaying tactics (my Criminal Harassment claim against them may have something to do with that).

 

So, all I'm saying is cover your back on this. Drop the Court a line so that you at least have something that proves your side of things.

 

Amex will jump all over any mistakes, so keep the Court in line via letter, just in case!

 

Happy New Year by the way.

 

Cheers,

BRW

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DD: I will take a look at the "originals" when I get home and post if I can see any dates.

 

BRW: I just spoke to them again. They do keep a call-log database as they have referred to it a couple of times.

 

Anyway, they have now found the file and tell me it needs putting before a DJ to get it transferred to my local Court.

 

They said they would put it in this afternoon as "urgent" and it should be done by way of an order tomorrow. I will obviously get a copy of said order.


The REAL Axis of evil: Banks, Credit Card Companies & Credit Reference Agencies.

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Hello Alphageek!

 

That's fine, sounds like it's all covered and there's little room for Amex to exploit anything.

 

Cheers,

BRW

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I still don't get why they need a DJ to order the transfer!

 

CPR 26.2

 

26.2

(1) This rule applies to proceedings where –

(a) the claim is for a specified amount of money;

(b) the claim was commenced in a court which is not the defendant’s home court;

© the claim has not been transferred to another defendant’s home court under rule 13.4 (application to set aside(GL) or vary default judgment – procedure) or rule 14.12 (admission – determination of rate of payment by judge); and

(d) the defendant is an individual.

(2) This rule does not apply where the claim was commenced in a specialist list(GL).

(3) Where this rule applies, the court will transfer the proceedings to the defendant’s home court when a defence is filed, unless paragraph (4) applies. (Rule 2.3 defines ‘defendant’s home court’)

 

(4) Where the claimant notifies the court under rule 15.10 or rule 14.5 that he wishes the proceedings to continue, the court will transfer the proceedings to the defendant’s home court when it receives that notification from the claimant. (Rule 15.10 deals with a claimant’s notice where the defence is that money claimed has been paid)

(Rule 14.5 sets out the procedure where the defendant admits part of a claim for a specified amount of money)

 

(5) Where –

(a) the claim is against two or more defendants with different home courts; and

(b) the defendant whose defence is filed first is an individual, proceedings are to be transferred under this rule to the home court of that defendant.

 

(6) The time when a claim is automatically transferred under this rule may be varied by a practice direction in respect of claims issued by the Production Centre. (Rule 7.10 makes provision for the Production Centre)


The REAL Axis of evil: Banks, Credit Card Companies & Credit Reference Agencies.

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Thank you, Alphageek.

 

Thank you also BRW. I know we have already been in touch about this on my own thread.

 

The Amex reply to my request for the original signed credit agreement states:

 

"Please find enclosed a copy of your original application and terms and conditions for the above account. These documents form the executed agreement between you and American Express. Please see the statements we have sent you previously to validate the debt."

 

The first and second sentences are, I think, ambiguous. They refer to my "original application" and "terms and conditions" and then they say these "documents" (plural) form the ......... BUT the photocopy of the "original application" has the 60-Second Application on one side, and the T&Cs on the reverse so that would appear to be one document.

 

As we are on this thread and I am sure others will be following too I'll repeat a bit of that here. Hope this is okay, Alphageek. It will save people flipping back and forth.

 

I am so suspicious.

 

The photocopying layout is bizarre. The copy of the Application which is 2/3 A4 starts 1/3 down the page and goes exactly to the bottom. The top third is blank.

 

Why would anyone photocopy the document like that?

 

On the reverse the Conditions start about 2 millimetres from the top of the page and go down 2/3. The bottom 1/3 of the page is blank.

 

Today I was back in the office and copied these pages. If the top of the capital C of Conditions is moved down to half an inch from the top (a more usual minimum top border) and one page is put on top of the other it is absolutely plain that the T&Cs cannot fit on the back.

 

The application form is internally inconsistent. It refers to Personal Information paragraphs (overleaf) but like one of Alphageek's forms it doesn't say that the T&Cs are overleaf.

 

The front of the application form is a true copy. I have no argument with that. But do Amex actually have the Original agreement, or have they just got a photocopy of the front page themselves?

 

I don't understand why they would have to send anything different if I do a SAR. I've got most, if not all, of my statements and am about to plough through those.

 

If they get a SAR I'm sure they won't come back and admit they put T&Cs on the back that weren't there in the first place.

 

I think all I can do is go for the CPR 31.14 (that's before action, isn't it?), and say I want to inspect the Original document at their offices, but I'm not quite sure how to phrase this because clearly I'm saying I don't believe them.

 

The reason I am so keen to know what was on the back (and I am taking your advice very seriously about what to say) is that they have sent this ambiguous letter and dodgy photocopy, and I'm sure it won't look good if they can be seen to be falsifying documents.

 

If I can find a 'back' from 2000 I'd like also to see how many T&Cs are on it - equally true if they were on a leaflet. Have I got all of them, or just up to 19, 1 & 2, because that is all they can fit on?

 

I don't know what to write back.

 

Thanks for your help.

 

DD

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Is there any form of date anywhere for the one on the left.

 

Hi DD, not there isn't - the scan I posted in #10 is pretty good and you can see as much as I can except mu personal details. Sorry I can't help.


The REAL Axis of evil: Banks, Credit Card Companies & Credit Reference Agencies.

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Hi DD

 

My situation is similar and I went through this thought process and have to agree with BRW. I had two Amex accounts, for the first they just supplied a set of terms and conditions and could not locate the application (I have this in writing from Brachers following an Subject Access Request on Amex) and for the second I have an application form and set of terms and conditions that are not in the same format as the application, indeed they appear to be a recent printed set that are simply attached to the application which I have posted on no 24 of my thread:

 

http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/138263-threat-legal-action-brechin-2.html

 

Amex are litigating against me in Scotland for both accounts but the process up here is farcical in that there is no document disclosure until lat in the process so we simply exchange pleadings and really just mess around for 8 or so weeks before the Sheriff gets involved.

Edited by Monty2007
formatting

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I'm now going through statements and getting in a terrible muddle over interest rates and APRs.

 

I will go back to my own thread and stop hijacking AlphaGeek's. Thank you for your hospitality!!

 

DD

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Just had a call from Maidstone Court and they say the case is back from the Judge and he has agreed to the transfer. The nice lady said she was processing the transfer there and then.


The REAL Axis of evil: Banks, Credit Card Companies & Credit Reference Agencies.

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Called my local court and the DJ has allocated it to SC track and listed it for one hour.

 

Just need to wait for notification from them now. They did say listings were being made for June or July now, so it might drag on a bit longer.


The REAL Axis of evil: Banks, Credit Card Companies & Credit Reference Agencies.

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Nevertheless, a bit of progress


Steven

 

Using CAG Toolbar will generate much needed income - Download Here

 

Confused by Simple Interest? Confounded by Compound Interest? Read my Interest Tutorial

My Wins

 GE Money Won unconditionally May 2007

NatWest Won unconditionally August 2007

Brighthouse Won unconditionally August 2007

Goldfish Won unconditionally April 2008 (including CI on the basis of Sempra)

Clydesdale Financial Services (now BPF) Won unconditionally February 2008

 

Any opinions are without prejudice & without liability. Do not take any legal action on my advice alone. Almost everything I know concerning the law I learned from this site.

 

Please note, I will not give advice by PM. Please send a link to your thread and I will do my best to answer there.

 

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Received this from my local Court.

 

DISTRICT JUDGE XYZ has considered the statements of case and allocation questionnaires filed and allocated the claim to the small claims track.

 

The hearing of the claim will take place at xx.xx on the xx April 2009 at xx County Court, xxx, xxx and should take no longer than 1 hour. A hearing fee of £100.00 is payable by 24 February 2009 by the claimant unless you make an application for a fee concession. Failure to pay the fee may result in the claim being struck out.

 

The court must be informed immediately if the case is settled by agreement before the hearing date.

 

The hearing fee will be refunded in full if the court receives notice in writing at least 7 days before the hearing date, that the case is settled or discontinued.

 

Each party shall deliver to every other party and to the court office copies of all documents (including any experts' report) on which he intends to rely at the hearing no later than 14 days before the hearing.

 

The original documents shall be brought to the hearing.

 

Date: xx February 2009

 

As I am a part-20 claimant, do I need to pay the hearing fee or is it just Amex?


The REAL Axis of evil: Banks, Credit Card Companies & Credit Reference Agencies.

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I don't know - ring the court and ask (and tell us the answer)


Steven

 

Using CAG Toolbar will generate much needed income - Download Here

 

Confused by Simple Interest? Confounded by Compound Interest? Read my Interest Tutorial

My Wins

 GE Money Won unconditionally May 2007

NatWest Won unconditionally August 2007

Brighthouse Won unconditionally August 2007

Goldfish Won unconditionally April 2008 (including CI on the basis of Sempra)

Clydesdale Financial Services (now BPF) Won unconditionally February 2008

 

Any opinions are without prejudice & without liability. Do not take any legal action on my advice alone. Almost everything I know concerning the law I learned from this site.

 

Please note, I will not give advice by PM. Please send a link to your thread and I will do my best to answer there.

 

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I don't know - ring the court and ask (and tell us the answer)


Steven

 

Using CAG Toolbar will generate much needed income - Download Here

 

Confused by Simple Interest? Confounded by Compound Interest? Read my Interest Tutorial

My Wins

 GE Money Won unconditionally May 2007

NatWest Won unconditionally August 2007

Brighthouse Won unconditionally August 2007

Goldfish Won unconditionally April 2008 (including CI on the basis of Sempra)

Clydesdale Financial Services (now BPF) Won unconditionally February 2008

 

Any opinions are without prejudice & without liability. Do not take any legal action on my advice alone. Almost everything I know concerning the law I learned from this site.

 

Please note, I will not give advice by PM. Please send a link to your thread and I will do my best to answer there.

 

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Hi Steven, I will call them in the morning and post the answer on here.


The REAL Axis of evil: Banks, Credit Card Companies & Credit Reference Agencies.

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As long as Amex's part of the claim is still alive, they are the Claimant and they need to pay the hearing fee.


The REAL Axis of evil: Banks, Credit Card Companies & Credit Reference Agencies.

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Good effort so far Alphageek, keep us all up to date as I like a lot of people here are using your case as a model and can't Wait for the final outcome!

I've recently started my own battle with this lot so this thread is very inspirational.

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Hi fredleped,

 

The best advice I can give you with a case against Amex is: Don't prevaricate like I did. Might as well issue against them rather than let them dictate proceedings.

 

I'll pop over and have a read of your thread.


The REAL Axis of evil: Banks, Credit Card Companies & Credit Reference Agencies.

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I think I should resend Brachers the CPR letter, but I think it could be better than when I first sent it.

 

Dear Sirs,

 

REQUEST FOR INFORMATION

 

Given that this matter has now gone to allocation, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit 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. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by Newman & Company Ltd

 

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account.

 

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or your client sent me, with a copy of any proof of postage that you hold.

 

d. Details of any collection charge 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.

 

e. 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.

 

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

 

g. A list of third party agencies to which you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

 

3. Any other documents you seek to rely on in court.

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings.

 

 

Any suggestions?


The REAL Axis of evil: Banks, Credit Card Companies & Credit Reference Agencies.

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Have you sent the above CPR yet ? If not - then I've a couple of comments regarding it which could be helpful ...let me know and I'll put em up.


Please note that the right to reproduce any part of any post I make on this forum is restricted under copyright law and litigation privilege

 

Please see the following copyright statement

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Hi Shakespear, I have not sent it yet. Please post your comments.


The REAL Axis of evil: Banks, Credit Card Companies & Credit Reference Agencies.

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Hello, I just thought I would stop by and wish you all the luck in the world! Interesting reading. It seems to me that Brachers just issue summons left right and centre in the hope that the shotgun approach produces judgements and therefore they appear successful in front of Amex!

 

I can't offer much advice or help (I would be very worried about giving you the wrong advice:))- as in fact I only managed to get anywhere with the excellent advice of BRW, Monty and Slick, but I do wish you luck!

 

If Brachers do want to settle before the hearing (as in my case) , and I used (with encouragement from aforementioned guardian angels) this to my advantage, including the agreement 5 mins before the hearing that any defaults would be removed as well as them reducing the balance on my card and paying me my counterclaim in full. They were keen to agree to it (after a phone call back to Amex), so if you do get settlement offers, don't give in until you get what you want including the default removal.

 

Take care

Pandora

x

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