Amex Disupte (1) - help needed!

[monkeymad1]

I hope that their are some caggers out there who can help me with a problem that am experiencing with a couple of amex accounts that have been passed to Cap Quest debt recovery for further action.

 

There are 2 accounts and CCA requests were sent to Cap Quest on 29th December 2009 in respect of each account. No reply was received and so the CAG letter "account in serious dispute" was subsequently sent in respect of both accounts. Cap Quest have now replied as follows:

 

(1st account reply letter, I will start a separate thread for the 2nd account):

 

"A decision was made in a court hearing involving a number of cases heard in Manchester which considered the exact points made in your letter. These cases are reported as Carey v HSBC Bank Plc (2009) EWHC 3417 (QB). You will see that judgment dealt with the points raised in your letter and we believe when you have considered that judgment you will be satisfied that there has been compliance with your request made under s.78 CCA 1974.

We agree thats. 60(1) of the CCA and the Consumer Credit (Agreements) Regulations 1983 applied to this agreement. May we also refer you to the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 which deal, in Regulation 3, with the requirements as to form and content of copy documents. You will see that the judge in Carey v HSBC determined that a copy of the document provided need not be a photocopy of the original nor need the copy provided be in the same format. The document which has been provided to you is a photocopy of the front page of the agreement and a word document seeting out the terms contained in the agreement.

You refer to the requirement that the document is an agreement not an application. You will see that the document is headed "Credit Agreement Regulated by the Consumer Credit Act 1974". In the box where you signed is the wording "This is a Credit Agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms." The document acts as an application for a credit card which when accepted becomes a binding agreement.

 

We have received your request under s.78 of the CCA and have requested and obtained a copy of your agreement from American Express. If you wish to assert that the agreement is not compliant then that would be an issue for the courts but we suggest does not relate in any way to the conduct of this company.

You ask that if we are not able to provide the required information that we confirm the account is closed and the debt written off. Even if the court finnds that there is not a properly executed agreement these consequences will not follow. The court in the case of McGuffick v Royal Bank of Scotland Plc (2009) EWHC 2386 (Comm) determined that if an agreement is unenforceable, the debt nevertheless remains due and that it is proper for the creditor to continue to report the existence of the debt to Credit Reference Agencies. Consequently, Cap Quest will not be writing off the debt and will continue to report on this account to Credit Reference Agencies."

 

I believe that this letter from Cap quest is just a smoke screen to conceal the fact that they are unable to comply fully with my CCA request and that by quoting legal cases they are hoping that I will give up and pay.

 

I am starting to get out of my depth and need some advice on how to proceed. Can anyone help? You advice will be gratefully received.

[silverfox1961]

Hi,

My immediate thought is to write back and state that their letter is frivolous as they have never supplied any agreement nor have they supplied the terms and conditions at the beginning of the agreement nor any varied terms.

 

If they assert they have sent you an agreement, put them to proof of such.

 

 

This is the sort of tactic that worries me as if it went to court, they might wave that letter around and say "we did send it"

 

Another one for Trading Standards and the OFT I think

[monkeymad1]

silverfox1961,

 

Thanx for your very prompt reply.

 

I can confirm that I will today write to Cap Quest in the terms susggested and will report back as soon as I have some more information. I will also look up the cases referred to.

 

I can't help but get the impression that they are trying to bombard me with technical arguments in the hope that I will give up as they cannot comply with my request and are creating a "smokescreen".

[uptoeyeballs]

Well, they make some true statements, but Carey is about s77-79 only and not enforcement. McGuffik is about CRA reporting even though they can't enforce.

 

uteb

[monkeymad1]

Thanx uptoeyeballs for the advice.

 

Whilst I appreciate that that following the Carey case creditors can satisfy a s.78 CCA request by supplying a reconstituted agreement (as long as it contains the debtors name and address), is there an argument that the creditor is breaching the principles of the Data Protection Act by not holding the original agreement?

 

This may have already been covered in the Carey thread elsewhere on the forum, but I would be interested to hear what other caggers think on this point.

[uptoeyeballs]

is there an argument that the creditor is breaching the principles of the Data Protection Act by not holding the original agreement?

 

The problem is with s77-79 they can reconstruct "the agreement" whether or not they hold the original. One agument was this could be done to avoid the cost of fetching the orignal from archives. The bottom line is s77-79 will not help you establish if they have the original. A SAR may or may not reveal it.

 

If they haven't even bothered to send a reconstructed agreement plus the other information required by s77-79 then they are in default anyway.

 

uteb

[monkeymad1]

UPDATE:

 

Out of the blue I have today received from CapQuest a copy of the "Pre-approved" application form which these morons have stated is a copy of the credit agreement which fully complies with the requirements of the CCA 1974.

 

I attach a copy of the agreement and would welcome any comments concerning its contents and / or validity. It is my view that this is an application form and not an agreement and also that it does not comply with s.60(1) and 61(1) of the CCA.

 

In their standard covering letter these idiots also demanded that I send them a completed financial statement and telephone them to make an offer of payment!!!!!!!

 

Can anyone advise me on a suitable response to CapQuest. I have looked at the CAG letter templates and feel that the "questionable agreement" letter may be appropriate. However, as always I would wecome your advice and assistance.

Amex agreement.pdf

[silverfox1961]

I have seen some bad "agreements" since I joined the forum but that is a doozy

 

No terms and faily illegible.

 

You are right to sent the letter you thought of.

 

Muppets

[uptoeyeballs]

Looks like your going the same way as me!

 

The question is... What was on the back?

 

It's difficult to read, but I can just make out "I agree to be bound by the terms and condition set out overleaf."

 

Can you remember much about the application form? Most seem to have been direct mail shots that wouldn't have contained much on the back.

 

What you have to watch is Amex trying convincing the judge that the prescribed terms were on the back.

 

uteb

[uptoeyeballs]

Oh, and if you zoom the pdf it is possible to read your names, address, everything! Better block it out some more!

[monkeymad1]

Looks like your going the same way as me!

 

The question is... What was on the back? (absolutely nothing!)

 

It's difficult to read, but I can just make out "I agree to be bound by the terms and condition set out overleaf." (the copy sent to me was also illegible)

 

Can you remember much about the application form? Most seem to have been direct mail shots that wouldn't have contained much on the back.(the application was made in 1995 and was as a result of a mail shot that I received. I recall that there was just the usual sales propaganda and the application form.)

What you have to watch is Amex trying convincing the judge that the prescribed terms were on the back. (Should I do a SAR to force Amex to produce the "alleged" terms in order to head them off should they start proceedings?)

 

uteb

 

thanks up to eyeballs, I have read your thread and looks like the fun is about to begin!!!!

 

I have taken onboard your comments about blanking out my personal details!

[monkeymad1]

I have seen some bad "agreements" since I joined the forum but that is a doozy

 

No terms and faily illegible.

 

You are right to sent the letter you thought of.

 

Muppets

 

Thanks for your reply silverfox. I will send the letter and then sit back to see what sort of response (if any!) I get.

 

My view, for what it is worth, is that I cannot see how this pre approved application form can be a compliant CCA agreement as it quite clearly does not include the prescibed terms. To merely refer to this application as a credit agreement regulated by the CCA 1974 is simply not sufficient.

[uptoeyeballs]

Change the question - What might they claim was on the back?

 

I would sent the letter and do a SAR anyway.

 

My SAR didn't help with agreement, just got the same again, but it did reveal some other useful information.

 

You will then likely get a "final response" saying everything is in order.

 

Do you have the Default and Termination Notices?

 

uteb.

[monkeymad1]

Thanx uteb,

 

I have receive a default notice but not a termination notice. I have also received a notice of assignment.

 

I will send of the request for the SAR and see what comes back.

 

I cannot see how Capqest can state that the application form complies with the CCA as quite clearly there are no prescibed terms. Also, as far as I am aware, I have not received any terms and conditions and despite my request, CapQuest have so far fail to supply a signed copy to me.

[uptoeyeballs]

Oh, I missed something there. SAR Amex, not Capquest as Capquest will probably have very little.

 

If you haven't already, read up on Default Notices and Assignment. Both of these need to be done properly and may help you.

 

You need to establish that the account is terminated. I believe Capquest buy debt, so it would have to be, but I may be wrong. Your SAR may help.

 

This may not apply to you, but Capquest (Egg and Citi a/c's) have never taken court action against me, unlike Amex, and I've not heard from them for a while.

 

uteb.

[monkeymad1]

Thanx uteb,

 

I will read the threads that you have suddested and then sit back and wait to see what CapQuest / Amex send to me in reply to the SAR.

 

I will also pour myself a stiff drink this evening and read through your thread!!!!

 

Hopefully, Capquest will take the same approach with me as they have with you. I am of the opinion that if I keep the pressure up and question everything with CapQuest then sooner or later they will ignor me and leave me alone - you never know!