AMEX charge cards - do we have a defence

[Harbourboy]

Re: AMEX charge cards - do we have a defence

5 files attached

[Harbourboy]

Re: AMEX charge cards - do we have a defence

3 files attached

[Harbourboy]

Re: AMEX charge cards - do we have a defence

The case is not time-barred because I have made nominal payments to the acting solicitors over the last few years, although no mention was made of the payments being towards interest or arrears and I have never written acknowledging that I owe any particular sum of money. The agents are Scottish and the court is in Scotland although the agreements are covered by English law. Excuse me from not naming them - the acting solicitors/agents but at my school one was rewarded with several of the belt for telling tales and I don't see how there is a need to know. My solicitor doesn't believe I have a defence which he can put to the legal aid board as he thinks the case is not time-barred and he believes the interest rate of 42 per cent is acceptable and not an undue burden on the borrower. Obviously I beg to differ.

[Guest]

Re: AMEX charge cards - do we have a defence

HI
It is very small, and not what you would call a conventional agreement.
I have no doubt that you could challenge this under section 61 as being improperly executed, but this is true of almost any agreement. The regulations are quite specific in what is required, unfortunately the court will enforce unless the error can be shown to prejudice the lender.
In other words you could most likely successfully challenge a summary judgment but in order to prevent them obtaining an enforcement order you need to show that the prescribed terms were not within the document that you signed, at the time you signed it.
These are the annual interest rate, a term referring to the amount of credit, the repayment intervals and details.
What stage are the proceedings at? In order to enforce they would have to terminate the account. The consumer credit act says that before they can do this they must send a notice of arrears which also contains a statutory notice explaining your rights(cca 2006 section 86) followed by a default notice( section 87). They cannot enforce until this has been served and these must be in the correct form.
Do you have the letter the solicitor sent?
Peter

[labman]

Re: AMEX charge cards - do we have a defence

Sadly far too small for me to be able to make a constructive comment as I can't actually read it - sorry!

[Guest]

Re: AMEX charge cards - do we have a defence

The case is not time-barred because I have made nominal payments to the acting solicitors over the last few years, although no mention was made of the payments being towards interest or arrears and I have never written acknowledging that I owe any particular sum of money. The agents are Scottish and the court is in Scotland although the agreements are covered by English law. Excuse me from not naming them - the acting solicitors/agents but at my school one was rewarded with several of the belt for telling tales and I don't see how there is a need to know. My solicitor doesn't believe I have a defence which he can put to the legal aid board as he thinks the case is not time-barred and he believes the interest rate of 42 per cent is acceptable and not an undue burden on the borrower. Obviously I beg to differ.

Affraid your solicitor is correct in saying that 42% is not an unfair interest rate.
Peter

[Streetwise]

Re: AMEX charge cards - do we have a defence

One other thing. I would push Amex to tell you whether these accounts had ever been
securitised. They will tell you that that is their business, but almost all of their accounts were securitised. Prior to November 2008, the main source of funding for American Express came from securitisation. The securitisation would have taken place through their parent company in USA. This would have been by absolute assignment to a Special Purpose Vehicle (SPV), who would then own the accounts, but they would continue to be serviced by American Express. At best American Express would only have an equitable stake in these accounts.

Of course, this does not mean that you do not have to repay the debt, but if they have been securitised, then American Express cannot take you to court.

I would push them for an answer, but if unsuccessful, and they still continue with court action, I would request that the court forces them to answer.

Alan

Hi Harbourboy,have you taken this advise yet ,have you asked them if the account is securitised, :beagle:

[firefly]

Re: AMEX charge cards - do we have a defence

One other thing. I would push Amex to tell you whether these accounts had ever been
securitised. They will tell you that that is their business, but almost all of their accounts were securitised. Prior to November 2008, the main source of funding for American Express came from securitisation. The securitisation would have taken place through their parent company in USA. This would have been by absolute assignment to a Special Purpose Vehicle (SPV), who would then own the accounts, but they would continue to be serviced by American Express. At best American Express would only have an equitable stake in these accounts.

Of course, this does not mean that you do not have to repay the debt, but if they have been securitised, then American Express cannot take you to court.

I would push them for an answer, but if unsuccessful, and they still continue with court action, I would request that the court forces them to answer.

Alan

Just jumping in here ,hope you don't mind but where can I learn more about this point and has it ever been tested?
Thanks

[Streetwise]

Re: AMEX charge cards - do we have a defence

Just jumping in here ,hope you don't mind but where can I learn more about this point and has it ever been tested?
Thanks

Just google amex and securitized accounts,comes up on the C.A.G forum,regards Streetwise.

[Gorang]

Re: AMEX charge cards - do we have a defence

The case is not time-barred because I have made nominal payments to the acting solicitors over the last few years, although no mention was made of the payments being towards interest or arrears and I have never written acknowledging that I owe any particular sum of money. The agents are Scottish and the court is in Scotland although the agreements are covered by English law. Excuse me from not naming them - the acting solicitors/agents but at my school one was rewarded with several of the belt for telling tales and I don't see how there is a need to know. My solicitor doesn't believe I have a defence which he can put to the legal aid board as he thinks the case is not time-barred and he believes the interest rate of 42 per cent is acceptable and not an undue burden on the borrower. Obviously I beg to differ.

Scottish case then thats even better regarding staute of limitations as its only 5 yrs up here, not 6 yrs like england

When did you make the last payment towards the account?

Is it a summons that you have received?
If so what is the return date on it?

Is it a small claims, summary cause or ordinary cause summons that you have received, if it is a summons?

If it is a summons you have received can you post up the details of claim stated on the summons form?

Also if it is a summons does the summons look like this one i have attached below?

If it is a summons then there is a lot that needs to be checked to make sure they have done everything correctly as the small claims, summarry cause and ordinary cause claims have changed a lot in the last few years so we would need to dermine they are using the right version

Can you pm me the name of the agent (if you don't want to put that on open forum) as because that is all that they will be, and AGENT acting on behalf of Amex, with very little powers I suspect, and knowing their name it is will give me a good indication as to their tatics, and what they can or can't do

If it is a summons then which court is it that the claim is with (pm me that too if you don't want that on open forum) I ask as different courts react in different ways with claims like this, and also if it is anywhere near peterhead court I can attend the court with you to help if you wish, as I have won many cases in peterhead court in which I was the pursuer

Also

As Peter has already asked
Have you received

a notice of arrears
termination of the account notice
a Default Notice

Also have you checked your CRA history to see when or if the account was defaulted

[Harbourboy]

Re: AMEX charge cards - do we have a defence

Thanks Peter pardon the ignorance, but how do I pm you?

[Guest]

Re: AMEX charge cards - do we have a defence

Thanks Peter pardon the ignorance, but how do I pm you?

HI

Just click on my name then PM option.
We like to keep all advice on the open forum wherever possible, that way any errors can be picked up by someone else, but you are welcome to PM me.

Peter

[Harbourboy]

Re: AMEX charge cards - do we have a defence

All the papers are with my solicitor so I can't post up the writ, but all I received immediately before it was issued was the solicitor's / agents standard letter asking for a monthly payment and informing me that if this did not materialise then court action would follow. My last payment actually crossed with the writ ( I put it through their letterbox the night before I received the writ from the court). As I say when making these nominal payments no mention was made of them being for interest or for arrears, only that they pertained to the Amex account(s).

[Guest]

Re: AMEX charge cards - do we have a defence

HI
I think With the greatest of respect you would be better getting your paperwork back from your solicitor and finding out what is going on.
It sounds like the solicitors letter you received may have been the default notice, this is a legal requirement, and must be issued to the debtor before any court action commences. The debtor is entitled to know exactly how much he owes, and the amount he must pay in order to bring his account up to date. The notice gives the debtor 14 days to comply, if he complies the creditor cannot enforce.
So you need to know exactly when the notice was sent and exactly what it says about what you needed to pay. It may be that they commenced court action before they should have, in that case they would have to start again, it may be that your payment was in time to remedy the breach there is no way of knowing unless you look at the documentation.
Peter

[Gorang]

Re: AMEX charge cards - do we have a defence

Harbourboy

Did the writ look anything like the blank small claims summons I posted up in post 25?

if it didn't then it was NOT a summons as that is the only style of summons you get from a scottish court