I have an MBNA account that has been sold to Link. There were actually three of them, but havent heard anything about the other two (sold to Arrow) for the last year or so, and the agreements they supplied were just rubbish. However, Link have been more determined and the agreement MBNA supplied to me is about the best I have seen from them, though its by no means clear that they application form and the T&Cs are linked - basically its two bits of paper. However, to put the thing to bed I offered them 3%, which they have refused (in passing I should say I made this offer back in July and its only this week they got round to making a reply). I am in a bit of a quandry about what to do now. As I see it, I can either offer some more - but how far am I likely to have to go with them before they are likely to agree, and doesnt every offer make me look weaker than before? dig in and suggest they do their worst. I have appraised them that the document they have put up says "Application Form" at the top, and that the page with my sig has not a prescribed term on it - there would only be a problem if the other page was held to be part of the same document (there isnt even a staple in place, but they are the same size, similar font - but quite separate). So, basically what I would appreciate are opinions on what to do offer them more, and if so where do Link settle in such cases - i would be pretty sure they got this for 10% of its true value or is that a sign of weakness (its more a sign that I would prefer to avoid the hassle of going into the court process though I reckon I would win) and I should tell them to do their worst?

i have always said this is like playing poker and the one first to blink generally loses. If I were you i would stick to my guns. First of all because its what my lawyer advised me (a lawyer actually giving advice is a rare thing), and you have to trust them anyhow. But in any event, from what is in their letter, she is right - put up or shut up!

I rather suspect you are going to follow your lawyer's advice, partly at least because she is your lawyer. The view she has expressed seems fairly reasonable - they might not rebut point by point in your letter, but why advise you of their case before they have to? What impressed me was that they are prepared to accept 1/2 of what they were looking for, and pay their own costs from thi s - more "how can we get out of this with minimum damage?" than confidence. I would be inclined to tell you to get on with it. My only reservation is that you can never be 100% confident about what will happen in court. But from what they are saying they arent all the confident in their case, and if you trust your lawyer bring it on.

OK guys thanks for the quick responses and advice. I will certainly use the phone number you suggest Huggy. However, that said, I have already worked out what they owe me, and depending on the interest rate to be applied (judicial 8% or contractual 24%) they owe me between 2 and 4 thousand pounds (pretty much no matter when I sent payment, it was late and of course pushed the account over its limit). I have corresponded with them about this and never had an offer better than £300 as "the charges are in your t&cs and are lawful". Since I didnt want the hassle, and hoped that as whatever I might owe them was dwarfed by the charges, I just left it. But from the tone of this morning's letter that seems less likely than it did. But my problem is who has liability for the charges - Crap1 or CQ? I will try Huggy's phone number and find out (if I can). When you say ims21 "You can no longer rely on Un-en paperwork following various court cases..." what is it you mean? I actually have a copy of the "agreement" - this came from Crap1 - it has my sig on it and not a prescribed term in sight. They might want to argue that it was all on the other side, but any recon they have sent, no way on God's earth would this go on the other side. Yes they can show account usage, but not compliance with s61.

Can someone advise here? A credit card (pre 2006) with Crap 1 was sold to Crapquest. Thing is that the fees Crap 1 charged me during the time I was still paying them, dwarf the amount that is owing (I mean like four times). Crapquest are threatening legal action next month. My defence will be that the account is unenforceable - no document with my sig and prescribed terms - AND that the unlawful fees amount to more than what is owed (so at worst can I have the balance back). What I dont know is who is liable for the fees? Crapquest are quite clear that they have purchased the debt - they say it on their letter this morning. Do they have liability for the fees as a result? OR is it Crap1 I should be chasing? Do they still have liability. can someone advise here please?

click on his name and it will take you to a page where there is an option to pm him

things are a a little bit pressing at work just now, but if you send me your "case notes" I will have a look and let you know what I think (fwiw!)

lets go back to your original question I am working on the basis that your initial writ is form G1. This will state the relevant sheriffdom, both sides - pursuers (them) against the defender (you). This is followed by the condescendence which is a statement of the facts of the case (for instance that they loaned you money and you're not paying it back contrary to the agreement between you), and then the pleas in law which is a statement of what they want the court to do about it (for instance issue an order against you for payment). To answer your first question, you need to answer each of the points that they make in their condescendence. Usually in a condescendence, the first point is your name and address, and that the court in which they are bringing the action has jurisdiction (eg if you live in Ayr, then Ayr Sheriff Court). so your response to the first point int he condescendence might be something like "1. The averments regarding the defender are admitted. The existence of jurisdiction is admitted. Quoad ultra not known and not admitted." which means yes this is where I live and I admit the jurisdiction of the court, but I am admitting nothing else. After this it gets into what they are alleging and you have to reply to each separate point by saying either you admit what is alleged - admitted you deny it - denied "well not quite" - it is explained that..... In the case of the last two, you would have to put forward what your case is - for instance "Denied, as a. No Default Notice has been served on the DEFENDER by the PURSUERS. b. Given that the agreement is not enforceable in law, the PURSUER had no legal authority to require payment" If you are admitting something you might just give a straightforward admission ("its a fair cop") or you might want to accept that what they allege did indeed happen, but there was a reason/ justification for it. So for instance "Admitted but justified as there is no legally enforceable agreement under the Consumer Credit Act 1974 between the parties, and the action has been brought before a Default Notice has been served, as required by law. " Then there would be your plea in law - something like The PURSUER’S averments are irrelevant et separatim lacking in specification, the action should be dismissed The purported credit card agreement which the PURSUERS will present as evidence, does not conform in form or content to Section 60(1)(a) of the Consumer Credit Act 1974 and as such is unenforceable under Section 127(3) of the same Act. The Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported credit card agreement supplied by the Pursuer as unenforceable. The PURSUERS on or about September 2003 from Chargecard to Mastercard was an offence under Section 51(1) of the Consumer Credit Act 1974, rendering any agreement between them and the DEFENDER unenforceable The PURSUERS, by virtue of not having served a Default Notice, are not entitled under the Consumer Credit Act 1974 Section (87) to demand payment of the balance and the DEFENDER craves that the application be dismissed. These examples are taken from a specific case and would need to be adapted to your circumstances, but that is basically the idea. Yes you do need to pay £80 - in the event you win with costs, you can claim this back from the other side There should be a notice 07 - headed Notice of Intention to defend. You need to fill it out and sign it and send it back with your defence which will be headed "Motion for the defender" - include the case ref, pursuer v defender, then answers to the condsescendence and pleas in law. Hard to say much more without details, but I hope that has helped. You seem to have a good notion of what your defence might be, and that is an important start. Perhaps you are pursuing a different route here, but maybe the case of Southern Pacific Personal Loans v Walker would be relevant - you can get a copy of this judgement here http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2009/1218.html&query=title+%28+Southern+%29+and+title+%28+Pacific+%29+and+title+%28+Personal+%29+and+title+%28+Loans+%29+and+title+%28+v+%29+and+title+%28+walker+%29&method=boolean Essentially this case concerns what the true amount of credit in a loan is, since if its misstated then the agreement is unenforceable. In the Walker case they had borrowed £17500, but a broker fee of £835 was added to this. So, the Walker case was that the amount of credit was not £17500 but £18375 to include the £875 broker fee. The agreement however stated the amount of credit to be £17500, so the Walker case was that this made the agreement unenforceable as what they owed SPPL wasnt £17500 but £18375. SPPL argued that the loan to the Walkers - the amount of credit - was £17500. The broker fee was part of the total charge for credit - the sum of £18375 was in the vocabulary of their form the "total amount financed", and this view was accepted by the English Court of Appeal in this case. It seems to follow the reasoning of Laddie J, following s9 of the CCA in Wilson v Robertsons (London) Ltd "Those items financed by the creditor which form part of the "total charge for credit" must be identified and "stripped out" before the amount of credit is itself determined. After charges for credit have been stripped out the other items financed by the creditor go to make up the "amount of the credit."

I would agree with Ida that absolvitor is the gold standard to aim for. You might want to get your lawyer to make out a case for this. On the other hand they will probably have a variety of reasons to put to the court why it should be sisted, and as Ida says, they can bring it back at a time of their chosing. I think when they brought the case it "reset" the clock, so the five years began ticking down again from when the papers were sent out. The period of the sist would, however count toward that period of five years. I would be for seeking a motion of absolvitor - they dont have an enforceable agreement, this is the (whatever the number is) time the court has sat, uncertainty for my client etc etc. Lawyers can be kind of cosy!

Batman's advice is excellent. If they dont have the paperwork to enforce their claim and/or its statute barred, let them fume. They will put pressure on you and if they think that you are starting to crack then they wont respond by backing off. Their response will be to put more pressure on you. So its important that you put up what they have sent you and get some advice (hopefully that we should all have a good laugh) I know you have many other things to worry you, but in all seriousness you need to show a confident face, advise them that you have no evidence that they can enforce (dont expect them to agree btw) and that until they can change that there is no point in further correspondence.

Oh, I do take your point and I wouldnt rule it out. From their pov I can understand them pursuing this type of case in the first instance, since I would guess that great majority of them I expect go through without a defence being put in. But I really dont understand why they go on once its clear the other side knows their way about and they just dont have the documents required to pursue. Probably in the hope of a dozy sheriff? Btw, you are quite clearly making the assumption that you will get your day in court on Friday. In some ways I hope you do - and wipe the floor with them obviously. But, I suspect this whole process has become like a gunfight - its the first one that blinks. I can think of a number of cases where they run up the white flag at the last minute (check out Moragh at http://www.consumeractiongroup.co.uk/forum/showthread.php?238861-MBNA-Court-Action/page3&highlight=moragh) or on the day, almost literally at the door of the court (check out afw at http://www.consumeractiongroup.co.uk/forum/showthread.php?269529-Creation-Financial-Services-and-Court-*WON*&p=3137605#post3137605)

You may be right - as in all matters of this type, its all a question of "wait and see". This is actually my third time round the block with Cabot. First time was a Morgan Stanley (eventually these became Goldfish) card which was sold to them at the beginning of 2009. In response to their "hello" letter, I sent them a "hi, could you send me an executed agreement" letter. In March 2009, I got a letter from them admitting they had asked Goldfish and got nothing back. Since then heard nothing from them at all (and yes, I have got the original letter admitting no agreement). Second time was a Vanquis card which unfortunately was post 2007 (so 127 (3) doesnt run) as they paperwork from the OC was really all over the place. I suppose I could have taken it to court and tried my luck there (if they had taken it that way) but I didnt fancy leaving myself open to the court's discretion, so, allied to the fact the amount owing wasnt that much (certainly not relatively) I agreed 30% in F&F with them. Of course, they could come back at me, and very possibly will, but the only thing they have with my sig on it is an application form without a single prescribed term. I wouldnt say I wish them luck, but you know what I mean (I hope). Just have to "wait and see"

Could it be this one - http://www.consumeractiongroup.co.uk/forum/showthread.php?252689-Credit-Card-defence-****WON****/page7&highlight=microfiche+copies - scroll down to post 128, and in particular paragraphs 7 and 8 of her "particularised defence" where she goes to town on the admissibility of copies to court proceedings

Hi ya I think you have done really well with this in a number of ways. First of all the case you have is, I think, really strong. Secondly you have had a lot of good advice from a lot of good people. Thirdly you have a lawyer on legal aid - not many of them going about as I suspect some of them dont want to ... the banks off. Also, i learned a couple of things from reading through it - the SCottish Equivalent of Law of Property Act - I would bet that a lot of people in Cabot dont even know that there is a such a thing separate from England. Also AndyO's discussion of the consequences of the 2006 Act for Notice of Arrears etc. All of this will be very useful to me since about a year ago, B'card sold my account to Cabot as well. Since then I have been playing a game of enforceable agreement with them since the only document they have with my sig is so old that Jim Callaghan was PM when I signed it - not a single ref to the CCA and not a prescribed term in sight. Recently they have been quiet - he said clutching a wooden table - long may it continue. From reading through, I think you have a very strong case, but imo the main thing is point 2. All of the rest is true and influential, but the great thing about no prescribed terms on the sig document is that it means they are in breach of s61 (1) (a) which takes us through to s127 (3) which means the court - no matter what it might think itself - is specifically prevented from issuing an enforcement order. This is quite mechanical - there is no discretion for the court. This is not to say anything negative against the rest of your defence, but it seems to me to be ancillary to this point. For instance , for a Scottish solicitor to forget to include the averment is either crass incompetence or a sign that they dont have an agreement (quite possibly, I suppose both). the court might decide that this is de minimis and can be corrected, or was of no real significance. the advantage of your point 2 is, it seems to me, that it offers the court no discretion which they might just use against you. Couple of other things that occurred to me while reading the thread re no default notice or not, i noted the precise requirements of the transmission of moveable property act - have a look at Cabot's "hello" letter - check the back of it - there you will find a condition that this letter is your notice of assignment. Do you agree with me that there is no way that matches up to the requirements of the Transmission etc Act? re whether or not there was a default notice issued, you will say they didnt, and they will insist till blue in the face that they did -"its part of our procedures you see". One way you might be able to get them is by doing a SAR on B'card, who should have defaulted you before selling you into slavery with Cabot. If/ when the SAR results come back in (and B'card have a reputation for being truly awfully slow in providing the needful) look at the communications log (the list of communications they have had with you - not just phone calls but letters from/to you). If that doesnt say anything about a default notice then its not just you saying they never issued one, but their IT system as well. I know you might not have the time for this - but it might just be an opportunity for a continuation if you were so minded (after all they would do the same). Good luck on the rest of your struggle with them. On the basis that they dont have a document bearing your sig that contains all of the prescribed terms, I would be very hopeful of your success. I will watch with interest. SFU

I had a phone call to that effect - I broke my own "never speak to them on the phone" rule - where, having told her, "look you dont have an enforceable agreement", I got harangued about taking the money etc. I didnt go into this with her - I reverted to my never speak to them on the phone rule and then wrote them a letter to say they dont have an enforceable agreement - but essentially when they say this, their argument is based on morality rather than law. It can be influential, if you let it, but the thing to remember is that this is a bank, a commercial organization, you are dealing with. Suppose you had taken out health insurance before going on holiday and unfortunately fell ill. Your illness was a "pre-existing condition" (or perhaps more interestingly a development of this), so would your insurer (which is possibly a bank or a subsidiary) refuse to pay (since you didn't inform them of the pre-existing condition)? You bet they would. A well-known health insurer, once tried to refuse my late sister in law access to treatment for cancer under one of their policies on the grounds that she had MS and it was, therefore, a pre-existing condition. The morale of this story is that you are dealing with organizations that will manipulate the law to make use of any legal get out they can. Why should you or I be any different? Remember too Bennion's quote (he wrote the CCA 1974) that if the banks couldnt get the basics right - what was being loaned (the credit limit) the cost (rate of interest) and repayment arrangements, and signed by you - then they didnt deserve to get their money back. So, head your letter "I do not acknowledge any debt to your company", point out that if they cant come up with an enforceable agreement then the account is in dispute (they will never agree to that - but its your position and they cant dictate to you, though they will try). Btw, they tried to take me to court a couple of years ago and then ran away (if you find my posts, you will find it all there)

Dont want to be a wet blanket on this, but when an account is assigned is it not, as well as the assets (ie what they claim you owe them) but also the liabilities (what they might owe you). Thus, having sold (or reassigned) to AIC, might CrapONe not have a defence that they no longer own the account and thus have no liability. Therefore you might need to start again? Or, if this is the case - ie AIC bought the liability to recompense you for the unlawful charges - do you have time to have them joined to the action (ie sue them both - you cant get it wrong then ). I would be very interested to know, since Crap Quest are being very difficult about a CrapONe account they bought a year or so ago. They have two problems - one that they dont have an enforceable agreement, just an application form with not a presecribed term in sight. The other problem is that, depending on what rate of interest is applied to the unlawful charges they owe ME 150% to 300% of what they could possibly claim I owe them. I have been trying to get them to accept a deal that "you dont sue me and i wont sue you", on the basis that if they came against me I would simply counterclaim for the unlawful charges so the best they could hope for was to lose somewhere between 400 and 1600 pounds (what they owe me less what I owe them, in the unlikely event that the court decided the account could be enforced). However, if CrapONe remain liable (I had always thought the liability transferred to Crap Quest), then I might sue CrapONe for the charges and just tell Crap Quest to sod off!

You'll learn:wink:

By the way, I thought I had read up on the Carey v HSBC case before but had a quick look yesterday - very hard to understand quickly tho through the legal jargon but bit worried about some of the points the Judge ruled against. When I read up on this case a while ago i thought that the main problem was that it was the debtor (carey &co) was the one's that took HSBC & co to court and hence, the problem being (once again in lay man's terms) that it was then down to the debtor(s) to prove that HSBC & co did not get the debtors to sign the correct CCA agreements. In other words, the onus was on the debtors not the creditors. Whereas, if it had been HSBC & co taking the debtors to court - then the onus would have been on HSBC & co to prove that they did have the correct agreements signed. the point about Carey imo is that it was an unusual case for being brought by the debtor - usually its the lender. So the burden of proof this time wasnt on the lender, but on Carey who had to show that they had NOT signed a compliant agreement. In that judgement there were some unhelpful comments by the judge to the effect that the lender might have lost the orginal (eg in a fire) and that a reconstruction, allied to a witness statement that "it was our process to get them to sign a compliant agreement like this"might well suffice. But then its important to put that in context - the onus wasnt on the lender (HSBC in this case), but on Carey so all they had to do was to put up enough evidence to cast doubt on Carey's case that she had not signed a compliant agreement. This is - or I would hope it was - a very different situation from where the lender is chasing the debtor (eg HSBC had been bringing the case against Carey) as the onus would then be on the lender. For instance would it really be enough for a lender - who has no copy of the original agreement to say, as above "it was our process to get them to sign a compliant agreement like this one"? One would very much hope not as it would just blow a hole in any concept of evidence and proof. On the other hand there are many lenders and DCAs who would like us to believe that this is the situation - even if its not. Have I got that right? or am I mixing it up with another court case?! I have read a few so its possible I may have. What I thought I worked out from that one was - never take a bank to court - let them take you!! I know I'm a little thick on this but in basic terms as I right? should I be worred about this?! My advice would be NEVER to take them to court - let them to do that to you, if it comes to it. As for my point about the Lending Code and "responsible lending" - I know that the Lending Code is new and I know that the responsible lending thing is in it heavily. However, I know that before the Lending Code was the Banking Code and I know that there was a section in this about responsible lending - probably not as much as what's in the lending code now (due to current economical situation), but there definately was a section in it about this. Im going to find my copy of the old Banking Code and do some research on it - i'll let you know. However, this too is probably a technical offence by M&S - but any ammunition is good surely! You are probably right, but the fact is that if a lender breaches the Banking Code, unless its in the style of the Corleone family, or the Sopranos, they are likely to get nothing more than a letter asking them to change their practice and not do it again. There might be a fine, but how much good is that to you? Plus, I did read on the official OFT archive that M&S promised the OFT back in 2003 to give out these cards in a responsible lending manner - to properly ascertain their customer's credit worthiness first before handing them out - which they obviously didn't! I did actually send M&S a copy of this article - which surprise surprise - they ignored! Again you are probably right, but - in addition to the above - by the time the OFT gave M&S a bit of a row, you probably had your &more card. One thing to remember is that s61(1)(a) removes discretion from everyone - its mechanical - no compliance with s61(1)(a) then their claim ends up perished on the rock of s127 (3). Bringing their other errors to the notice of court is fine, but they only give the courts or the financial authorities discretion and you can never be sure how they will use this. We can discuss the degree of prejudice in favour of the banks - and I am quite sure it exists - but that is how it is. How likely is the present government to issue legislation that could be seen as prejudicial against the banks? Re the difference between Scotland and England, better be quick. Mr Salmond is working hard

the enormous advantage of s61 1a is that if you can get them on that then that should be that - if they dont get that right then s127 (3) says a court cannot issue an order - its not a judgement thing for the court - they simply arent supposed to issue an order. S51 on the other hand is a technical offence by M&S. You might want to suggest this prejudiced you - "they forced this card into my hand and made me use it" - I dont know that a court would buy that. But, it is still technically an offence and M&S did have a degree of bother with it back in 2003. But for you, the fact that, if your situation is at all like mine, they didnt even begin to comply with s61 1a, which requires a document containing the prescribed terms and your sig, so they cant get an order (this btw, is why they refer to 1b,but while they are literally correct, its just a smokescreen really) you might want to suggest that you filled the application out in store in the way I described (or rather BRW). They will say "nonsense", but its important to remember that if they did go to Court (and while I remember, I really dont think they will - its just **** and wind) you can say that you will testify that you were stumbling through the shop, laiden down with bags ........ etc. For anyone who has ever been in M&S that version of events is at least realistic. you almost certainly didnt - if you had they would have come up with it and wouldnt be preaching arrant nonsense such as the chargecard agreement will be fine. see 3 that is what I would have expected them to say at that time they (and I dont just mean M&S) were handing cards out like sweeties - the main aim was market share and that meant the maximum number of card holders. That might be commercially nuts (as you are offering credit to people with little hope of paying it back) and morally bankrupt, but its not illegal (though there is OFT guidance on this now - not sure what it was like back then). 'Responsible lending' is a relatively recent development - a major element of the banking collapse was the sub-prime mortgage market coming home to roost. I think if you to my M&S thread you will find an internet address there from Welshmam. the logic of the defence - Chargecard and &more are essentially different products with different T&Cs so they should have different agreements, so the &more card falls foul of s61 1a, and no order can be issued - could be the same. But, the way in which its expressed should be in line with English "formatting". There are loads of defences on here set out in that way, so what you need to do is to work out how this is done in England - its really only stylistic/ using different words etc. BRW is a major loss imo - seemed to be some kind of "falling out" - not sure of the details. Just sad!

Hard to know where to start here. Lets do it the easy way by referring to a couple of points in your letters to them. Perhaps the most instructive is where you put s51 (sending out unsolicited credit tokens) to them. I do think they will ever reply to this because, quite simply, they cant. I know I have mentioned this before elsewhere, but according to a friend who was in the credit card trade on/about 2003, the industry was gobsmacked when M&S took it upon themselves to simply send out &more cards to their Chargecard customers with no further ado. First of all it go them fined by the FSA (s 51? Dont know - but they promised not to do it ever again). But more to the point, in a legal sense, an agreement has to have some degree of definition, some degree of specificity - it cannot be infinitely adjustable. The problem for M&S in this case was that the Chargecard and the &more card were simply quite different animals - the former could be used only in M&S and generally had quite low credit limits. In contrast &more was simply another Mastercard and could be used anywhere with a much higher credit limit, by and large. So quite different, so some sort of new agreement - and one signed by the customer - was absolutely necessary, but M&S (or HSBC actually) couldnt be bothered doing this, and just sent the cards out with a letter inviting you to enjoy yourself. Is this an offence under s51? Maybe it is - but its an argument that cant be batted to one side with the comment "dont be stupid" - it is a reasonable argument. But the main contention has to be that the two sets of T&Cs (the one for the Chargecard and the one for the &more card) were SO different that they were two different agreements and thus needed two sigs. THIS M&S never bothered to do. Yes they will suggest that the Chargecard sig can be rolled forward for the &more card, but they seem remarkably unwilling to have it tested out in court (this is another way of saying that I have never heard of them actually getting a case to court - they have issued papers - they did it to me - but it doesnt actually get a hearing). They screwed up in 2003 and cant really afford to have that formalised in a court decision, or they really will be in trouble because then we would all know. I would make that suggestion to them - when I signed what were the arrangements in place for me to see the prescribed terms? They will insist that all their reps were trained to take you through at least the main financial information (ie the prescribed terms) and to issue you with a set of T&Cs. Did the reps do the former? On a busy Saturday afternoon? Dont think so. And what would you do with your set of T&cs - bottom of the shopping bag. That is if you got them. We have to remember that at this point the aim of the banks was not legal compliance, but maximising the number of cards taken out. Now that particular hen is coming home to roost What about what they said? Well some of that is just nonsense, but what is most interesting is the comment that your form was probably filled out not by you but by one of their instore ambushers. Banker Rhymes With had a very funny illustration of this but sadly I think its down now like all his posts (pity!) , but basically it described how this would happen - target customer is seen staggering away from the till with two, or better still three bags of shopping, and is engaged by M&S Money in store rep. "Excuse me Mr/MRs/ Ms Gullible, have you thought about taking out an &more card (cue spiel of advantages .........)" . Of course either because she (because usually it was) manages to make it sound like something for nothing, or because the customer is so nackered they would sign a statement confessing to all the unsolved crimes in the UK, they agree to sign up. "Great, now can you just me give me your name? Are they two Ls in Gullible? Thank you. And your address ........" And on it goes till we get to "just sign here". At this point, if you are still watching, the target should be getting shown a copy of all the T&Cs, but on a Saturday afternoon, having done the shopping and thinking mostly about getting back to see what's on the telly, most of us would rather have the soles of our feet cut off with a bacon slicer than read all that! But in any event that is probably not necessary, because the ambusher has a target to meet - get xx cards taken out or you're out a job (either that or back on the tills). So its just "just sign here Mr/Mrs/ Ms Gullible". Now the notion in the CCA is that when you sign you have before you, at least the prescribed terms. What you get with one of these signed up in store jobs is a form on clipboard passed across to you to put your mark on it. Would that stand up in court? Well of course the problem is that they have to prove that that's not what happened, when the reality is - and I have worked this through for &more but knowing M&S it wouldnt be that different for the CHargecard - that is pretty much how it happened for a lot of people. This is particularly so as even M&S have taken this point on board. Next time you are down at your local M&S have a look at their new &more application form. The bureaucratic maybe on another page - but the sig box is on the same page as the prescribed terms (and indeed most of the terms) - it will be hard to get out of that one! They are learning. However, remember its the different sets of T&Cs (Chargecard and &more) that is the key thing here - one signed (Chargecard) and one not (&more). Of course if it was as described above, you might not be lucky and get some crusty old judge who says "caveat emptor" and all that - "they should have looked and not just signed" - well yes maybe so sir. But its not good consumer practice, your Honour, is it? Something even M&S seem to have taken on board. Other points - s78 is about information - and indeed what they assert is the information that they say you are due - "THIS is your agreement". But is it? Did you ever sign for an &more card? Ask them if they have a signed &more agreement - if they dont then OFT guidance is that they should fess up to this (I doubt if they will though - they will have some weasel way to allow them to slip round their errors). But as above, they cant really own up anyway? Even for a bank it would be hard going to say "nah, we dont have any agreement but you owe us the money anyway" (well maybe a bank could bring themselves to believe it - though others would think it was pushing it). Also while they might have (or might not - where/what is the executed agreement for the &more card if we argue that its quite a different thing from the Chargecard?) satisfied s78, but that isnt about proof. As they seem to recognise this is about s61. They refer to s61 1b, but this is the difference between embody and contain. I can hardly believe that they are still pushing this one. They must KNOW they are on a loser here. What they say is actually quite right - there must be a document, which can be in more than one piece, which contains all the terms and conditions, other than, as they say, the implied ones. But the part of s61 that gets a lender into bother is a and not b - its a that ends up with s127 (3) preventing the court from issuing an order. What a requires is that there is a document which embodies the presribed terms (interest rate, credit limit and repayment arrangements), as well as the sig - all of these things must be in that single document. Whether they have to be on the same page is questionable - following on from Carey it does seem they can be on different pages but they do have to be part of the same document - in other words the prescribed terms cannot simply be embodied, they must be contained. So that whole section of their letter is quite simply nonsense. As for the rest of it - the agreement is compliant and our legal dept say it is - what do you expect them to say - no its not compliant and our lawyers are suing us? Of course they are going to assert its compliant. And this brings me to your suggestion that you are fed up going round in circles. I do expect you are fed up btw and am not unsympathetic - I have my own to deal with, so I do know what its like. But what we need to appreciate is that the banks have screwed up but want to at least minimise the damage. So, while M&S probably know the bull**** content of that letter is pretty high, what they are hoping is that if they send you enough bull**** letters like that, and/or set enough DCAs on to you, to send you letters, to phone you and generally to make your life less pleasant than it would otherwise be, that you will get fed up and give them something. They would much prefer 100%, but even 20 or 30% is better than 0%. Sorry, but this is likely to go on. Some have been successful simply ignoring them - read letter, have good laugh, put in bin. Others - like me - go to the trouble of replying to their nonsense so that they know you are still up for it (and to get a bit of practice in). Maybe there is a road through the middle of these. But you need to decide. There is no way to be rid of them (other than giving them what they want).

well that would be an offer you could make to them in order to avoid court. They will insist that their charges are fair and in the T&Cs, but in so far as they are penalties for a breach of contract you should be able to reclaim them. Many card companies faced with a demand to do so will often do this on a "without admission of liability"basis, but hey ho you get your money back. On the other hand some are extremely obdurate - if you have a look at this one (involves Capital one) you will get the idea I am sure http://www.consumeractiongroup.co.uk/forum/showthread.php?298616-Mrs.SS-v-Cap-One-reclaim-of-Credit-Card-Charges. I really have no idea how Amex would be likely to respond to this, but it is worth a try. It is of course possible that they will simply restart the whole thing by issuing a new claim. At that point you might want to check your options about whether their agreement is capable of being enforced which comes down to whether or not its a regulated agreement. Your call!

dfsoon - you couldnt pm me because my message folder was full - so I emptied it. But I couldnt PM you since your folder is full as well.

Re a solicitor, you need to be careful here you need to check on what their experience/expertise is on this kind of area there are some who are unwilling to take on this kind of case in case they fall out with their pals at the banks who can give them much bigger cases than you would, and on a repeating basis costs can mount up pretty quickly As always you need to make your own mind up about this, but keep these things in mind. If they are fessing up that the t&cs werent there when you signed then I would say that's good for you - unless you signed for them later. Even then, the t&cs should be there before you when you sign the agreement, and if they are saying the application form is the agreement - and since when you requested a copy of the agreement this is what they sent you - then it would seem arguable to me that they are admitting you didnt have the t&cs when you signed so 61 1a applies IF the account is regulated, and the fact they havent told you that its not suggests (at best) that it might well be regulated. But yes, all speculation - and indeed unless you can get the original judgement recalled, totally pointless speculation. I would suggest delay to get the documents that you need bone up on the status of this agreement - is it regulated or not (or could it be argued that its regulated?). If it is - or could be on the basis of that, we would hope it could argued with some conviction, that had you been in receipt of the original claim, it seems reasonable to believe that you might have resisted it with the original judgement set aside, you need to develop a case to have their claim dismissed by the time of the full hearing

sorry you need to have a closer look. Just keep looking till you find one that does offer some advice that is pertinent to your case - its complicated because no two cases are exactly the same - you learn something from one and something else in another. I think the reference to the CCA is pertinent, as is the fact that they sent you this and didnt just say "s78 doesnt apply because its not regulated" - suggests that they arent sure. You need to put a motion into court seeking a delay - that you are waiting for documents to arrive that are crucial for your defence - but you will need to be clear just why you need these documents - they dont like fishing expeditions. There is a blank form at the bottom of this page http://www.consumeractiongroup.co.uk/forum/showthread.php?269529-Creation-Financial-Services-and-Court-*WON* and then some discussion about how to fill it out on the next page. Put it into the Court and there will be a date set for it to be heard. The other side may oppose on the basis that there is already judgement and this is just a delaying tactic. You will need to argue that you would have paid up if they had sent the papers to the right place, that you have reason to believe that the account isnt enforceable and that there are documents you require to support this - specify them as closely as you can - dont just say that I have put in a SAR - spell out how the documents (doesnt have to be all the stuff you get from the SAR) are relevant.

You need advice from someone with experience of these cards - I dont. On the other hand, for wiw, there is lending - albeit short term - was there a credit limit (ie you could only spend £x in a month)? - there would be repayments (you could have to pay back at the end of the month) and the point about interest is that its the cost of the borrowing, so in a way the £95 fee is the interest. Moreover the second box that you signed does quite clearly state dont sign this unless you agree to be bound by the CCA 1974 and its terms - it would be a funny argument that said you were so bound but they were not. In that event, as I said before, the prescribed terms seem to be absent so s61 1a and s127 (3) apply. Is this ALL they sent in the way of T&Cs? Was the sig page part of a much larger single document that did include things like credit limit, how you repay etc. From their pov its better if that is on the sig page, I think, but if its all part of what is clearly a single document they can argue on the basis of Carey v HSBC where that point was made. One other question - it says "click the print button below) - was this done online? If it was then online regs apply and again I dont know much about them. On the other hand, I can see where you signed - actually signed - not a tick box - so am a bit confused here. Sorry to be a big vague, but the problem is that the type of card is kind of different/ unusual compared to what I am used to. I would suggest having a trawl through the Amex threads to see if someone else has had a problem with what is basically a chargecard.