Amex CCA

[cbd13]

Hi to all, a bit of advise please?

I have received a CCA reply from a DCA attached below.

I received only the one page of what I think was an offer received through the post. As is my luck, everything appears correct! Any comments are much appreciated!!

http://i33.tinypic.com/15zi1r4.jpg

[robcag]

Hi cbd13 and welcome to CAG

 

I followed your link from another thread.

 

I'm not an expert, but before I make any comment on the application/'agreement' you have posted, could you please tell us what the date of this document was?

 

Cheers

Rob

[cbd13]

Hi cbd13 and welcome to CAG

 

I followed your link from another thread.

 

I'm not an expert, but before I make any comment on the application/'agreement' you have posted, could you please tell us what the date of this document was?

 

Cheers

Rob

Hi Rob, thanks for coming over!

This was done in early 2003

[robcag]

Hi cbd13

 

I was asking for the date of the application as this could have a bearing on whether it was regulated by CCA1974 or CCA2006. I believe that agreements regulated by the 2006 Act are permitted to refer to T&Cs in a seperate document.

 

..... As is my luck, everything appears correct! Any comments are much appreciated!!

 

If I am correct then it would seem your luck has changed (maybe it's the 13 in your username?).

 

There are no prescribed terms on the document you have uploaded, and they have even included a statement which refers to you having read and understood the T&Cs which form part of the agreement - but they are not showing as part of the signature document, which they must be to make the application enforceable as an agreement.

 

As it stands, I would say that it is unenforceable, but I stand to be corrected about the date after which the prescribed terms were permitted to be contained within a seperate T&Cs document.

 

Hopefully a second opinion will be forthcoming soon on this.

 

Cheers

Rob

[cbd13]

Cheers Rob!

There is always hope!

[robcag]

Don't give up on this! If no further opinion is offered to back up what I have said in say, a day or 2, then it might be worth clicking the red triangle under your username to the left of the posts you have made to attract the attention of the site team.

 

Good luck with this

Rob

[cbd13]

Good tip, thank you!

Have a click!

[cbd13]

My missus has rung me to say that a special delivery came this morning!! Thankfully (hopefully) it is all my charges/statements. She said it was a 6lb letter( at least I hope so, I'm not paying another £6!)

Calculator will get a work out tonight.

If anyone else could confirm Rob's suspicions above, Iwould be grateful. Also if the CCA is deemed un-enforceable, would this confirm mis selling of PPI too?

 

Thanks in advance,

cbd13

[banker_rhymes_with]

Hello cbd13!

 

Just to add to what Rob has said, the thing they have sent looks pants.

 

But see what is in your SAR, to see if they send the same thing back in that.

 

There is also the possibility that they may find the original, and that may have other details on the back.

 

Don't get too worried about that, just stating what might happen.

 

So far, the thing you have been sent is not Enforceable...not sure you can even read some of it, so it would fail on the readability issue too.

 

If you can't read it, then they cannot say they have complied with your s78(1) Request, no matter what they say they can and can't do in response to that.

 

If you can't read it, they have not complied with your Request.

 

Cheers,

BRW

[cbd13]

thanks BRW.

The copy I have is legible in the most part, maybe the scan made it worse.

I didn't actually send a complete sar just request for charges/statements, but they haven't charged me! will send a more comprehensive sar with the cheque they returned and see what comes up!

 

thanks again!

[TheChancellor]

They call it "application" twice in the first paragraph of the bottom box -

and that's what it looks like to me.

[robcag]

..... will send a more comprehensive S.A.R - (Subject Access Request) with the cheque they returned and see what comes up!

 

 

I'm not 100% sure on this, but regardless of the fact that your cheque was returned (you offered it, they chose to provide the service for no charge) I believe you can make further SAR requests for additional documents with no extra cost within 2 months (60 days maybe?) of the original request.

 

Not sure where I read that, but I believe it was on CAG.

 

Cheers

Rob

[cbd13]

I'm not 100% sure on this, but regardless of the fact that your cheque was returned (you offered it, they chose to provide the service for no charge) I believe you can make further S.A.R - (Subject Access Request) requests for additional documents with no extra cost within 2 months (60 days maybe?) of the original request.

 

Not sure where I read that, but I believe it was on CAG.

 

Cheers

Rob

Cheers Rob. Instead of sar should a cca direct to amex ensure they send the correct agreement should they have it? (only costing £1 instead!)

many thanks, cbd13

[robcag]

You can try, but they may decide to send you a re-constructed 'true' copy, not an actual photocopy of what you want.

 

No harm in asking for it under a request for further documents under your original SAR as well, you could even put them in the same envelope I guess.

 

Cheers

Rob

[cbd13]

You can try, but they may decide to send you a re-constructed 'true' copy, not an actual photocopy of what you want.

 

No harm in asking for it under a request for further documents under your original S.A.R - (Subject Access Request) as well, you could even put them in the same envelope I guess.

 

Cheers

Rob

Are you suggesting photoshop Let them try, as I probably have better PS skills than them!

 

Cheers

cbd13

[cbd13]

Hi all,

The time until default on my CCA is due in 5 days. Should I wait until then to write to DCA saying it is not enforceable or I do it now?

The letter I had from Amex advising of DCA involvement mentioned adding Default to CRA in 28 days from letter (30/9) Should I also include Amex on this letter?

 

Many thanks,

cbd13

[TheChancellor]

I would send them something to try & block the DN from going on.You can adapt below & threaten action for any consequential financial loss if they are shown not to have had permission to process your data.

DCA

 

DATE

AMEX Account No 12345678

Dear (DCA)

Many thanks for your letter of (DATE) 2008 regarding the above account.

Perhaps you could explain why your client is handing my personal data to yourselves when the above account is in legal dispute?

AMEX had until (DATE 12+2) 2008 to provide me with the true copy of my original credit Agreement as requested under the Consumer Credit Act 1974.

They are now in default of my request. Any account I hold with them is now in legal dispute. Whilst the account remains in dispute, they are not permitted to ask for any payment, nor am I obliged to offer any payment to them. Furthermore, whilst the dispute remains, they are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, they are not entitled to register any information on this account with any credit reference agency – or any third party.

 

To register information with a credit reference agency or a Debt Collection Agency - they must have written consent from myself to collate and share such information. This consent is given in the form of a signed credit agreement, so until they produce such an agreement, you may not hold any information on me.

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998.

As you may well be the innocent party in this I am allowing you 7 (working) days to confirm in writing to this address that the case and all information relating to it has been returned to the AMEX.

Otherwise any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office.

Yours sincerely

 

 

cbd

 

 

Send similar to Amex and tell them you are still waiting for a true copy.

[cbd13]

Thanks for that, will do!!

[cbd13]

I have today received a Notice before Legal Proceedings letter from dca's solicitors stating:

 

we have been instructed by DCA acting on behalf of OC to issue legal proceedings against you in local county court for recovery of full amount outstanding above together wit stat interest andadditional costs. if wish to avoid then you must pay yadayada.

There will be no further warning.

upon judgement, enforcement action willbetaken against you, whereby the following methods of litigation will be considered:

• attachment order on your salary
  
• warrant of execution by bailiffs.....
  
• charging order or bankruptcy may also be considered where appl.
  

please note all correspondance must be sent to the offices of DCA...

yours....

 

I will send the not enforceable cca letter to dca and oc as above, should this be enough?

 

cheers cbd13

[TheChancellor]

What is the name of the solicitors?Have you checked they are a legit firm & not the spotty youth on the next DCA desk?

[42man]

How old is the account cbd ?

[42man]

Send recorded to the DCA....

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

[42man]

If it is a firm of solicitors chasing then send them this also recorded -

 

Dear Sirs

 

I refer to your letter of XXXXX 2008 which was received today.

 

Frankly, I am surprised of the need to advise a firm of solicitors about the terms and conditions surrounding my Consumer Credit Agreement request (Consumer Credit Act, 1974); dated XXXX 2008 for which I have proof of receipt . I can only assume therefore that they failed to inform you of their non compliance. Your client had until (date - 12+2 working days from date of sending CCA request) to comply with a legal request.

 

Should your client persist with threats of legal action as stated in your letter, I will welcome the opportunity for a judge to look at several defaults committed by XXXXX under The Consumer Credit Act, 1974, as well as your client’s non-compliance with and total disregard for, OFT guidelines.

 

Also please note that I will ONLY communicate in writing, any calls made to me will be classed as harrassment and treated as such.

 

Yours faithfully / for ever / with love / in anticipation of a short and fruitless banking relationship (choose the first if I were you !!!)

[cbd13]

thanks 42, it was westminsters (in house I believe). Not had anything else from them but got a threat-o-gram in post yesterday giving 48 hours, blah blah, and that will recommend to their client to instruct solicitor to issue proceedings. I have already sent CCA default letter, but as they are ignoring that, what letter should I send next?

 

thanks in advance cbd13

[cbd13]

Hi all!

Have today received another letter from DCA

 

Despite all previous communication, the above debt remains unpaid (they can't even add up 2 set of numbers probably!!).

We are obliged to submit to our client a detailed pre-litigation report, and therefore require you to provide, in writing:-

• The full name and address of your employer, with details of your annual salary, ant bonuses due or benefits received (if you are self employed, your accountants details)
  
• Your full resedential address, plus postcode, where proceedings may be served
  
• Details of any properties, vehicles, and valuables in your possession, with confirmation that they are not subject to any hire purchase agreements.
  

This is your final opportunity to resolve this matter voluntarily, refusal to repay your debt may result in proceedings being instigated.

 

You should contact this office immediately upon opening this letter on ##

 

Is this another threat'o'gram trying to scare you into thinking they will contact employer? Will they follow up with litigation?

Itis easy to dismiss these letters but sometimes doubts overcome you.

 

Suffice to say I won't send them these details, but how should I follow it up?

 

many thanks cbd13