mcuth v AMEX ***WON***

[mcuth]

DPA letter sent 25/04/06 for my old charge & credit card accounts

 

They have until 5th June to reply - bring it on!

 

Cheers

 

Michael

[mcuth]

Well, how's about this for a quick response..... DPA letter arrived with AMEX on 26/4/06 (special delivery), and yesterday I had a letter back from AMEX dated 26/04/06:

 

Dear {mcuth}

 

I have been passed your letter and understand you wish to exercise our right of Subject Access under Section 7 of the 1998 Data Protection Act.

 

The information is now being collated and I will forward to you in due course.

 

Yours sincerely

 

Manually signed too!

 

Not a bad start.....let's see if they follow through

 

Cheers

 

Michael

[mcuth]

Follow through they did - received a Special Delivery package today (well, delivery was originally attempted on Saturday, but I've been away for the weekend) - in a Royal Mail protective bag. The envelope was more-or-less open on 2 sides, and in a pretty bad way. Methinks a complaint to the IC will be coming up here.....

 

Anyway, the information was pretty much spot on - copy statements and everything (though they're still sending statements to my old address - I moved 18 months ago). Unfortately, there aren't too many charges involved - only £68 for a late payment I think. Still, I'll have that back thankyouverymuch....

 

Cheers

 

Michael

[mcuth]

Gone through all the statements with a fine toothcomb, and the only charge from 2 accounts (Gold charge card & Gold credit card) is a £68.21 late payment charge

 

Cheers

 

Michael

[mcuth]

Prelim letter sent today by RM Special Delivery:

 

American Express Services Europe Ltd

Customer Services

PO Box 136

Brighton

BN88 1AH

By Royal Mail Special Delivery

Dear Sir/Madam

MEMBERSHIP NUMBER XXXXXXXXXXXXXXX – X X XXXXXXX

REQUEST FOR REFUND OF CHARGES

My request

I am writing to ask you to refund the charges which you have levied from my account since inception in January 2004. I now understand that the regime of fees which you have applied to my account in relation to late payment fees and so forth are unlawful at Common Law, Statute and recent consumer regulations. If you say that they are not, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put by as a result of my breaches, in order to reassure me that your penalties really do reflect your costs.

 

I am of the view that your charges represent a penalty and are therefore unrecoverable at Common Law. In the Scottish case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498; the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract. This is also the position in English law: Wilson v Love [1896]; Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79; Ford Motor Co v Armstrong [1915]; Bridge v Campbell Discount Co. Ltd [1962]; Murray v Leisureplay [2004].

Your charges do not reflect any actual loss; instead they appear to represent a lucrative profit-making scheme. In

particular, charges were applied after I entered into transactions without sufficient funds in my account and also when I have gone overdrawn without authorisation. The actual loss is the cost of automatically sending me a computer generated letter. I would respectfully submit that is valued at no more than 50 pence.

UK banks have recently given evidence to the House of Commons Treasury Committee on how bank charges are

calculated: "The costs are going to pay for all the people we have who pursue debt, collect debt, speak to customers and chase payments. The way these charges are arrived at is by taking these total costs and making some assumptions about the volume that is going to come through to arrive at the individual charges" (2nd report, 25 January 2005, paragraph 50).

Accordingly, the charges applied to my account are not a reasonable pre-estimate of your loss in relation to my account. No-one has had to look at my account or telephone me. No one has had to collect anything. Your

charges would appear to represent a device to recover global losses (for example, loan defaulters, bad debt write off, including commercial lending in, and outwith, the UK).

On a separate note, your charges appear to represent an unfair term of contract which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). My account falls within the scope of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as I am a consumer. Your charges constitute an unfair

penalty under reference to paragraph 1(e) of schedule 2 of the said regulations:

‘Indicative and non-exhaustive list of terms which may be regarded as unfair - 1. Terms which have the

object of effect of - (e) requiring any consumer who fails his obligation to pay a disproportionately high

sum in compensation’.

0n 26 July 2005, the OFT stated that 'a charge is likely to be disproportionately high if it is more than a court would

be likely to award if the lender sued the cardholder for breach of contract'. Because your charges include a large

profit margin, in addition to actual loss, they are unrecoverable as an unfair term in contract. I believe that your

charges require me to pay a disproportionately high sum in compensation for incurring transactions which were

ultimately declined by an automated computer system. In addition, it is unfair to require me to subsidise your global debt recovery costs and debt write-off.

It has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary..

Your responsibilities

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary. I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them. Your concealment of the true nature of your charges has prevented me from asserting my right until now

 

What I require

I calculate that, as at today’s date, you have taken a nett total of £68.21. As advised in my DPA request, I am also reclaiming the statutory £10.00 DPA fee. This makes a total of £78.21. I request that you refund this amount in full and enclose a schedule of the charges which I am claiming with this letter.

 

Targets to resolve this matter

I hope that you will enter into a sincere dialogue with me about this matter and write on the assumption that you will prefer to do this rather than merely respond with standard letters and leaflets.

 

You have 10 working days, from receipt of this letter (i.e. by Wednesday 5th July 2006), to reply unconditionally accepting my request in principle and letting me know a date by which I will receive payment.

 

If you do not respond, or do not respond positively, within this time period, I shall send you a further letter before action allowing a further 10 working days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

After that will be no further communication from myself and I shall issue a claim at the expiry of the second deadline.

I look forward to hearing from you by return.

Yours faithfully,

 

Cheers

 

Michael

[libertie]

Bloomin love the letter..... only wish I had thought of it myself :grin:

Good luck, they are quite efficent at Amex so hopefully you'll have a reply in no time, be sure to post their reply to this one!

 

Regards, Libertie

[blackrain]

Wow. Great letter I may pinch bits of it if I may to use against BM when I try to claim my early redemption morgage fees back later on.

 

Amex were incredibly quick with dealing with my claim and letters all the way up to 14 day LBA period when they went silent but good luck.

[mcuth]

LBA sent today:

 

Thursday, 13th July, 2006

 

American Express Services Europe Ltd

Customer Services

PO Box 136

Brighton

BN88 1AH

By Royal Mail Special Delivery

Dear Sir/Madam

MEMBERSHIP NUMBER XXXXXXXXXXXXXXX – XX X X XXXXXXXXXXX

REQUEST FOR REFUND OF CHARGES – LETTER BEFORE ACTION

Further to my letter of 28th June 2006 which has gone without reply, I am again writing to ask you to refund the charges which you have levied from my account since inception. I now understand that the regime of “fees” which you have been applying to my account in relation to “over limit”/late payments and so forth are unlawful at Common Law, Statute and recent Consumer regulations. My letter of 28th June explains this in detail.

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

I calculate that, as at today’s date, you have taken a nett total of £78.21. I require repayment of this amount in full and have enclosed a schedule of the charges that I am reclaiming.

If you do not fully comply within 10 working days of receipt of this letter (i.e. by Friday 28th July 2006), I shall begin a claim against you for the full amount (plus interest, plus my costs) without further notice.

 

I look forward to hearing from you by return.

Yours faithfully,

 

{mcuth}

 

Cheers

 

Michael

[blackrain]

Money claim was deemed to be served on Amex on the 9th July so I will let you know if I get any positive news.

[mcuth]

Received the following today:

 

Dear {mcuth}

 

I refer to your letters received in this office on 29th June concerning the default charges levied to your account.

 

Whilst I appreciate your comments concerning the recent announcement by the Office of Fair Trading ('OFT'), American Express maintains that our charges are fair and reasonable and are avoidable by complying with the Terms and Conditions of our agreement with you.

 

In light of the OFT recommendation American Express has changed the charging policy with respect to default payments. Our charges vary by product and account type as a reflection of the differing risks involved in offering each line. The changes are only applicable from 1 July 2006 and our existing charges for defaulting will stand.

 

We have informed the OFT that our default charges of £10 on Charge Cards reflects the costs involved in administering accounts in default, and is calculated in accordance with the guidance issued by the OFT on how to calculate default charges. This includes an amount reflecting the additional cost to us of funding borrowing on the customer's behalf while they are in breach of their payment obligations.

 

However, further to your request and as we review each case on its individual merits, in full and final settlement, we will make a payment to you of £78.21. Please find enclosed a cheque made payable to you in the above amount.

 

Yours sincerely

 

Andy Dobson

Executive Office Manager

So, settled in full

I think this is the first time I can say....nice one Amex

 

Cheers

 

Michael

[libertie]

Nice One

 

Always pleasing to see a cheque in the post!

 

Libertie

[blackrain]

WELL DONE! I can go for judgment on Monday if I don't get some response in post in next few days. Interestingly though they told me their charges were going to be £8 from now on I seem to remember.....Have they changed their minds?

[mcuth]

Interestingly though they told me their charges were going to be £8 from now on I seem to remember.....Have they changed their minds?

 

I think it's that bit in their letter that says: "In light of the OFT recommendation American Express has changed the charging policy with respect to default payments. Our charges vary by product and account type as a reflection of the differing risks involved in offering each line." - I must've been a higher risk

 

Cheers

 

Michael

[blackrain]

Well I closed my account 4 years ago so I guess I am no risk!

 

Got a letter from them today saying once they have collated my statements which takes time they will let me know how much they are sending me.

It better be the full amount plus court fees plus interest!

[mcuth]

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