Bankruptcy Petition - Help Needed Please

[Traderx]

Trader be advised that Amex and their sols do trawl these threads....be cautious over what you say....!! there is one guest watching already !!

 

noted

 

Thank you

[Traderx]

I would send one to AMEX directly....Data Compliance Manager

 

 

That would be the LOndon office?

[42man]

I sent mine FAO Data Compliance Officer in Brighton.....

 

You might also be very interested to see this thread too - http://www.consumeractiongroup.co.uk/forum/legal-issues/168022-brw-particularly-nasty-bank-10.html

[42man]

OK Do you know which forms to use TX ? affadavits ? witness staements ?

[Traderx]

OK Do you know which forms to use TX ? affadavits ? witness staements ?

 

No. i am familiar with the family courts but not chancery

[Traderx]

I have just spoken with the court officer. There are no papers lodged other than the petition which i have here.

 

In order to gain an adjournment i have to attend on the date given and ask!?!? or by speaking to the applicants solicitors (fat chance of them agreeing)

 

 

In respect of what 42man said about careful what i post on here; is it a good idea to scan and post the petition (even with identifiable info blanked out)

 

sorry for the ignorance

 

Traderx

[42man]

That is up to you but they will know who you are....

[Traderx]

damned if i do

damned if i dont

[palomino]

I would send one to AMEX directly....Data Compliance Manager

 

The Official term (as defined in the DPA) is Data Controller.

[Traderx]

I was going to use this letter,taken and adapted from another thread. Should I?

 

Dear Sirs,

 

Account no xxxx

And

Account no xxxx

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On 10/02/2008 I wrote to xxxxx of St Dr requesting that American Express 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

Yours Faithfully

[Traderx]

The Official term (as defined in the Data Protection Act) is Data Controller.

 

oopsey, too late letter gone recorded next day delivery

[palomino]

Don't worry - it should get to the right place.

[Traderx]

I have scanned all of the documents I have received.

 

I have blanked out all identifiable information.

 

Which do you need to see?

 

1) Letter dated 26th Nov informing me that a sealed Bankruptcy Petition was served upon me on Thursday 20 Nov (which it wasnt) - with attached breakdown of solicitors costs

 

2) Letter dated 2 dec - with attached 'Bankruptcy Petition', 'order for time extension' and 'High Court Order for sub service of Petition on Witness Statement from Process Server'

 

3) Letter Dated 9 jan stating we enclose a copy of the 2 application forms we are instructed upon - with attached cc application form and centurian card invitation.

 

 

Thank you all for your help thus far

[42man]

All of them please TX

[Traderx]

Edited January 13, 2009 by Traderx

[Traderx]

can you read them?

[Viscount Stair]

Sorry, they've only uploaded as tiny thumbnails.

 

It occurs to me that you may have to ask the other side for an adjournment - however unlikely we all think it is they will agree. The judge will almost certainly expect you to have asked and if you have asked in good time and for good reason and they refuse then it stands you in better stead for costs.

[Traderx]

9 jan letter Pictures, 9 jan letter Images, 9 jan letter Photos, 9 jan letter Videos - User Media - TinyPic - Free Image Hosting, Photo Sharing & Video Hosting

 

Cent Card Invitation Pictures, Cent Card Invitation Images, Cent Card Invitation Photos, Cent Card Invitation Videos - User Media - TinyPic - Free Image Hosting, Photo Sharing & Video Hosting

 

Gold Credit card App Pictures, Gold Credit card App Images, Gold Credit card App Photos, Gold Credit card App Videos - User Media - TinyPic - Free Image Hosting, Photo Sharing & Video Hosting

[Traderx]

better?

[Viscount Stair]

Better - big enough to read and see that the copies they have sent you, which look like copies of very bad microfilm printouts, are virtually unreadable.

 

Assuming that the Centurion card is the charge card, the application form doesn't actually help you because CCA doesn't apply to them.

 

However, you have two lines of attack on the credit card. The fact that the copy you have been sent is not easily legible means that they have not complied with s78 and the Copies Regs. Also, I see no prescribed terms, which might well mean that the agreement is irredeemably unenforceable.

 

CAG members of longer standing than I am might find the bit about original documents that has made its way on to the microfilm even more priceless as comedy than I do.

[Traderx]

Letter of 2nd dec

 

2dec_letter_safe Pictures, 2dec_letter_safe Images, 2dec_letter_safe Photos, 2dec_letter_safe Videos - User Media - TinyPic - Free Image Hosting, Photo Sharing & Video Hosting

 

time extension

 

User Media - TinyPic - Free Image Hosting, Photo Sharing & Video Hosting

 

?????

 

User Media - TinyPic - Free Image Hosting, Photo Sharing & Video Hosting

 

BP

 

User Media - TinyPic - Free Image Hosting, Photo Sharing & Video Hosting

 

BP (2?)

 

User Media - TinyPic - Free Image Hosting, Photo Sharing & Video Hosting

[Traderx]

Sorry, they've only uploaded as tiny thumbnails.

 

It occurs to me that you may have to ask the other side for an adjournment - however unlikely we all think it is they will agree. The judge will almost certainly expect you to have asked and if you have asked in good time and for good reason and they refuse then it stands you in better stead for costs.

 

 

To request an adjournment, is it as simple as writing to the solicitors and asking? Do i need to give them any more reason than I need more time to put defence together and awaiting SAR.

[Traderx]

Better - big enough to read and see that the copies they have sent you, which look like copies of very bad microfilm printouts, are virtually unreadable.

 

Assuming that the Centurion card is the charge card, the application form doesn't actually help you because CCA doesn't apply to them.

 

However, you have two lines of attack on the credit card. The fact that the copy you have been sent is not easily legible means that they have not complied with s78 and the Copies Regs. Also, I see no prescribed terms, which might well mean that the agreement is irredeemably unenforceable.

 

CAG members of longer standing than I am might find the bit about original documents that has made its way on to the microfilm even more priceless as comedy than I do.

 

Are you suggesting that they do not have the original? only a microfilm copy?

 

most of the debt is on the credit card

 

what rules apply to charge cards then?

[Viscount Stair]

That is exactly what I am suggesting. Even if they do, the original will be no more enforceable than the copy but if all they have is a cruddy microfilm copy then they potentially have serious problems.

 

Good, that is the right way round for it to be in your situation.

 

Very few rules apply to charge cards. However, you can still argue about charges and interest.

 

As for the adjournment, you do just need to send a letter but I would put it a bit more strongly. We can work on a letter but I think you're going to want to make an argument based on the prejudice to you from the way in which service was effected and also the fact that they seem to have lied in the petition about the method of service for the demand.

[banker_rhymes_with]

Hello Traderx!

 

Delivering documents to the wrong address is a favourite party trick of Amex and their mates.

 

It's a mistake they only seem capable of making when it can potentially work in their favour. At all other times, they seem to have no trouble getting the address correct.

 

OK, you're getting good advice on the BP issues.

 

WRT a defence to the Amex alleged Debts, I think it's good that the alleged debt is mainly on the Gold Credit Card with far less on the Black Amex Charge Card, because the latter is harder to fight if it's not Regulated by the Consumer Credit Act 1974.

 

The Gold Card Agreement sucks, it's clearly a crabby Microfiche Copy, and I can't see any sign of the Prescribed Terms. For Amex to Enforce that, as an absolute minimum, the Application Form needs to have your Signature and the Prescribed Terms (Credit Limit or how it is set, Interest Rate and Monthly Payments you need to make and how they are set). That lot all needs to be contained within the four corners of the Agreement. The Prescribed Terms cannot be found within another Document and embodied into the Agreement via a reference.

 

Amex will no doubt swear blind the Prescribed Terms would've been on the back of the Application Form but, they would say that, now wouldn't they! What else could they say? They'd never fess up that the Prescribed Terms were not there!

 

Amex seem to be asking you for the full balance on the Gold Card. Were you simply in Arrears, or was the Balance made up 100% of Arrears? If you were simply late on a few Payments, and the Card had a Balance that was not due, then if Amex are asking you for the whole lot, then this suggests they feel they have ended/Terminated the Agreement Lawfully.

 

A Lawful Termination would mean they issued a Default Notice under s87, that complied with s88. If you failed to remedy the default stated, i.e. the Arrears that were due, then they can Terminate and enjoy the benefits of s87.

 

The s87 is what gives them the Right to ask you for the whole Balance, i.e. the Arrears that were due, and any sums that were not due until they Terminated.

 

Amex have a habit of cocking up the Default Notice, so you really do need to see a Copy of that ASAP.

 

An invalid Default Notice followed by Termination results in an Unlawful Termination. They can do this, but in doing so they throw away the benefits of s87. The net effect of that is they are then limited to only being able to ask you for what was due before Termination...i.e. the Arrears.

 

That could, potentially, reduce your Debt by maybe 60% if I clocked the figure they are asking for before you edited it out (no problem there, very wise).

 

If the Arrears are suspect, say, you had lots of Unlawful Charges on the alleged Account, then you can possibly reduce the alleged Debt still further by claiming them back to off-set the Arrears.

 

Finally, if the Agreement really is as pant-like as it seems, then there is no Agreement for the Gold Card. You owe them nothing, not even the Arrears. If they do not have an Original Copy of a properly executed Regulated Credit Card Agreement, then any sums you spent may as well have been a gift.

 

Indeed, if over the life of the Card you Paid them back more than you ever spent (forget their Interest and other Charges, because with no Agreement they had no Right to charge them, so just look at Spending v Repayments), then any surplus should be owed by Amex to you...so long as they never did have a valid Agreement.

 

Obviously, getting that out of Amex will be like getting blood out of a stone, as they won't give that up easily, of course. However, given your Income at the time and likely spending, it may be the case that you have a large sum to hit Amex over the head with as a bargaining tool!

 

For example: look here Amex, you have no Agreement for the Gold Card, and I Repaid 10k more on it than I ever Spent. So you owe me 10k for the extra I Paid you by mistake. But you say I owe 5k on the Black Card. So, let's be grown up about this and call it a day. I forget the 5k balance, you leave me alone and forget the BP? Have a nice day.

 

For now, the Amex Black Charge Card is the main problem, as Charge Cards are not often covered by the Act, so all the useful things like s87/s88 do not apply.

 

But, some Charge Cards are partly-Regulated, and some fully Regulated, so you need to investigate what the Terms were for yours, and if Amex made any major changes that turned your Black Charge Card more into a hybrid Charge/Credit Card.

 

I know Amex did turn many Charge Cards into Charge Cards with Credit Card-like facilities, so it's possible your Black Card may be at least partly covered by the Act.

 

Amex did this to many over the Pond, as the US economy tipped into Recession. They could see Charge Cards were not being paid off every Month as they once were, so they elected to let many Charge Card customers roll a Balance on into the future...just like a Credit Card!

 

If your Black Card was UK issued, and they started to offer such a facility, then that aspect of the Card should come under the protection of the Act.

 

In summary

 

First task is to fight off that BP.

 

But you must also investigate the issues ASAP on both Cards.

 

Spend £10 and get a SAR off ASAP, just to have something going.

 

Also, check the Amex Company names, as Amex like to use several, and you may find that the Gold Card was with one, and the Charge Card with another...make sure the SAR goes off to the right one, and be ready to send each Amex Company their own S.A.R. if you find there are two Companies. It'll be the best £10 or £20 you'll ever spend!

 

The Civil Procedure Rules may also be open to you, but I'll stand back at that point and let someone else pitch in, as CPR and Court is not my area (yet)! CPR has the advantage of speed, and may let you get most of the SAR Data faster. But send the S.A.R.s off anyway, for Belt and Braces.

 

Good luck with it.

 

This may cheer you up:

 

Amex in Trouble?

 

Cheers,

BRW

Edited January 13, 2009 by banker_rhymes_with
Typo/Clarity.