Amex Claimform - Amex Credit card dEbt

[dp77]

The solicitors are acting directly for the credit card company, no DCA involved.

 

I used to think non compliance with a s78 was a defence, as the claimant is precluded from enforcing a debt but then I read a case where the Judge stated that starting court proceedings was not strictly "enforcement" it was a "means to enforcement" (or something like that), so the fact they didn't comply and started court proceedings is not a defence I want to be relying on.

[postggj]

In A Sense You Are Correct But

 

To Enforce In A Court Of Law The Original, Not A Reconstructed Agreement Must Be Produced

 

This Is Where They Fall Flat On There Face

Anybody Can Issue A Claim

Going Through With It Is A Different Matter

[postggj]

Its Called

 

Pre Action Protocol And Must Be Produced On Request

 

That Is The Original At There Place Of Choosing Or Send You A Copy Of The Original Complete With Signatures And T And C

[dp77]

Well I can't be sure what the expert who is examining the document will determine, however I am obviously hoping he deems it to be reconstituted.

 

Even if he does it's not necessarily going to help though. First of all I can't be sure that case (it's an appeal) will not be discontinued, or settled out of court, or some other contrivance to prevent it setting a precedent.

 

Even then, given the recent (Manchester) test cases which now allow a reconstituted agreement to be used to respond to S78 requests, who is to say that the same criteria will not apply to producing agreements in court? Although I doubt this can be determined at a SJ hearing.

 

A question; does anyone know where I can find the CAB or CCCS guidelines on offers? I want to check what they recommend is a broadly acceptable offer, as if the offer I made falls into this category it is an argument against awarding costs to the claimant.

[dp77]

A question; does anyone know where I can find the CAB or CCCS guidelines on offers? I want to check what they recommend is a broadly acceptable offer, as if the offer I made falls into this category it is an argument against awarding costs to the claimant.

 

To clarify; I believe if a defendant has made what is deemed to be a "reasonable offer" and the claimant refuses it then it is unlikely costs will be awarded to the claimant.

 

My understanding is that the CCCS and the CAB have broad definitions of what constitutes a reasonable offer, but having scoured the web I can't find any more information. Can anyone help?

[dp77]

Am facing a SJ hearing for a debt (regulated by the CCA 1974), which I think is winnable but I am a LiP and I'd like a second, professional opinion. My fear is that if I make a mess of the hearing, or come up against a Judge in a bad mood I could get costs awarded against me - for far more than the claim itself - an SJ hearing is trackless, so the costs could be anything.

 

Can anyone recommend a Solicitor in the London area (preferably West / Central London) who is knowledgeable about consumer law, consumer friendly and who will not charge an absolute fortune to look over my case. I don't want a claim's management company, nothing against them but I'd like someone's full attention. A personal recommendation, i.e. a firm who has actually represented you, or someone you know, would be preferable to 'I've heard they're good' - although I would take 'I've heard they're good' if I had to!

[empowered]

Don't want to alarm you, but we approached sols in local area to represent OH at his trial next week - they quoted at least £4K:eek: Once they are in the loop, you cannot get rid of them, and if the trial is adjourned etc, the costs go up and up. As the sols said "you cannot cherry pick which bits you want"... so we're going it alone:rolleyes: They also warned us that even if you win, you don't automatically get 100% of your costs back - usually 50%, if very lucky 75%, so you really have to weigh up how much your claim is worth:cool:

[dp77]

Blimey, £4,000! That is a bit more than I was expecting.

 

All the (possibly apocryphal) stories on here about the claimant being awarded huge costs when a LiP loses, are these knocked down to 50% also? Because it reads like they get 100%, so why do LiP only get 50%, or 75% if they're lucky, do you know?

[dp77]

I have a court date with a credit card company, where they have applied for Summary Judgement.

 

Part of the amount they are claiming is a "referral fee", charged at 18% (!!) of the balance due and added to my account. I questioned this and was told a clause in the T&C's of the original agreement, from ten years ago, allowed them to do this (I can post the clause if anyone needs to see it).

 

I've recently discovered that the credit card company in question has decided not to charge this fee any longer, and in some cases they have refunded the amount, though not in mine. This suggests to me the credit card company are wary of some piece of legislation, I'm wondering what that might be? Could it be this?

The unfair relationships provisions (From the OFT)

 

Section 140A of the 1974 Act (as amended) provides that a court may determine that the relationship between a lender and a borrower arising out of a credit agreement (or the agreement taken with any related agreement) is unfair to the borrower because of:

 

• any of the terms of the credit agreement or a related agreement
  
• the way in which the lender has exercised or enforced its rights under the credit agreement or a related agreement, or
  
• any other thing done (or not done) by or on behalf of the lender either before or after the making of the credit agreement or a related agreement.
  

Or is it more likely to be something in the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR)?

 

Any advice on the best way to challenge this referral fee charge appreciated.

[bennyowen]

That piece of legislation is relevant to your argument.

 

The unfair relationship concept originates from CCA 2006, which is an amendment to CCA 1974.

 

Section 140A(1a-c) of CCA 1974 (as amended) gives description of unfair relationships.

 

Section 140B(1) gives the court a wide power to intervene in the agreement.

 

Section 140B(9) puts the burden of proof on the creditor to show the action they took was fair to the consumer.

 

Also, Section 150 of Financial Services and Markets Act 2000 allows individual consumers to make claims for unfairness in FSA regulated agreements.

[dp77]

Thank you, all very useful, much appreciated.

[bennyowen]

The Unfair Terms in Consumer Contract Regulations 1999 (UTCCR) is always relevant for Credit Card transactions. Example reference:

 

Schedule 2 (1) … (o) obliging the consumer to fulfil all his obligations where the seller or supplier does not perform his;

[dp77]

Thanks again.

 

What would be an example of "obliging the consumer to fulfil all his obligations where the seller or supplier does not perform his"?

 

Knowing how fickle some County Court Judges can be I want to throw everything I can at these "referral charges".

 

[bennyowen]

The main part is the UTCCR 5(1) "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer."

 

The supplier has failed to deal fairly and in utmost good faith.

 

Schedule 2(1) .. (o) "obliging the consumer to fulfil all his obligations where the seller or supplier does not perform his;" This becomes relevant if the supplier treated you unfairly as it failed its own obligation of fair dealing in levying unfair charges.

 

Schedule 2(1) .. (e) "requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;" This becomes relevant if the charge is disproportionate to the breach.

 

Schedule 2(1) .. (j) "enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;" This becomes relevant if the 'Referral charges' was not clearly stated in the initial contract.

 

I will also like to refer you to the following Case Law:

Director General of Fair Trading v First National Bank [2001] UKHL 52

According to Lord Bingham in Paragraph 17 of the above Case Law:

"The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer's necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed in Schedule 2 of the regulations. Good faith in this context is not an artificial or technical concept; nor, since Lord Mansfield was its champion, is it a concept wholly unfamiliar to British lawyers. It looks to good standards of commercial morality and practice."

[dp77]

All very useful, thank you so much.

[dp77]

Have been taken to court whilst claimant was in breach of a s78 request - they didn't supply any terms and conditions, I mean none.

 

I've read that a Judge deemed instigating court action was not, in itself, enforcement, it was a "means to enforcement" - which strikes me as ridiculous but is the kind of thing a layman like me could easily be caught out by in court.

 

What is a creditor definitely, legally prevented from doing whilst in breach of a s78 request?

[harrassed senior]

When you say you have been taken to Court, do you mean a Judgement was made in your absence, or have you just received Court Papers?

[dp77]

The claimant has applied for Summary Judgement, and been given a hearing.

[count orlok]

The only thing that is seen as enforcement is them actually getting the money. The fact that they haven't complied with your request is a valid defence; even the CSA say they cannot collect while it is in default. I think the judge in the Manchester case ruled that anything short of actually enforcing the agreement is not enforcing, only a step towards enforcing. In other words they can trash your credit file take you to court harass and bully you by phone and letter as none of these are enforcment!

[dp77]

That's what I suspected, nothing is enforcement, every step a claimant takes is merely a "means to enforcement"? Is shooting someone in the head merely a means to murder then, not actually murder!

 

More seriously, on what grounds is the claimant not complying with a s78 request a valid defence then? If court action is not enforcement, what do you defend with?

 

Does anyone have a link for the CSA saying no collection whilst in default? Would like to read the precise wording.

[Jasper1965]

 

 

Did you acknowledge the claim or submit a defence?

[dp77]

 

I did submit a defence, of the embarrassed variety. The PoC were all over the place, no date for the agreement, stated charge card instead of credit card, stated 'non regulated' when a credit card is CCA 1974 regulated.

 

However they then got their act together and, of course without my knowledge until the witness statement arrived, applied for summary judgement.

[Jasper1965]

 

It was Judge Flaux who gave the recent rundown on enforcement in McGuffick.

 

very little constitutes enforcement, the data sharing is okay because the learned Judge does not believe that a financial institution would ever use registering a default as a lever with which to coerce a debtor into paying.

 

Of course this was another specially chosen "Test case" during which it was conceded that it was not a good representation as there were no issues with the agreement and this was openly accepted by McGuffick. ie a perfectly good agreement presented properly was used in a case where a debtor tried to get out on a technicality.

 

Have you researched the Summary judgment process? They must serve you with a statement 7 days before the hearing and you may reply with objections (served 3 days before hearing).

 

From what you've told us this sounds like an attempted abuse of process as the creditor has cocked up and doesn't want this brought before the court as would be very likely if you were permitted to defend.

 

IMO a summary judgment award would be unlikely but I would make representation to be on the safe side and be prepared to appeal it within the stated period if it is gained.

 

Head it off at the pass with a strikeout application as a clear abuse of process as it sounds like a blatant attempt to circumvent the normal Court procedure whereby you are permitted a defence and they must prove their case.

 

Not AMEX by any chance?

[dp77]

You guessed correct.

 

The SJ hearing is not for ages. So I have time. Can I ask for clarification on a few points you raised - "They must serve you with a statement 7 days before the hearing and you may reply with objections (served 3 days before hearing)" - you mean a witness statement? I already have that, I received their court bundle not long ago.

 

What would be grounds for a strikeout application? I understand the details will be case specific, I'm just talking generally.

 

A question about summary judgement; if you lose is the other side automatically awarded costs? Or is it case by case?

 

Put another way, can you lose a summary judgement hearing but not have costs awarded against you?

[Jamesx81x]

It is normal for the losing party to pay the other sides costs