CCA validity of agreement from Amex/Newman

[LJMcLaw]

Re: CCA validity of agreement from Amex/Newman

I have had dealings with Newmans. They are a complete nightmare however stand your ground. Your 'express application' refers to a copy of the terms and conditions and it does not state 'attached' or 'overleaf' therefore it is referring to a seperate document. This other document is therefore 'embodied' in the application to make a full agreement. This actually means it is totally unenforceable because the prescibed terms must be 'contained' in the document signed by the debtor. Embodying them doesnt cut it in a legal sense. Do not speak to them on the phone. Politely tell them to put their findings in a letter and you will only correspond with them in that way. Then end the conversation. do not get into a conversation with them, make your statement politely then hang up. This also really riles them up which makes you feel better. When I had dealing with them they were very cheeky and annoying but they did go away.

Make sure you put everything in writing to Newmans, explain that the document sent does not comply with section 61(1)(a) of the Consumer Credit Act 1974 therefore it is improperly executed. Section 65(1) states that an improperly exected agreement can be enforced by the creditor on the order of a court ONLY. Tell them you are happy for them to take you to court and that you await a court date. If this does go to court (In my experience it will not go to court - Amex will pass it to another debt collector when Newman eventually give up - so repeat the process again) Section 127(3) prevents the court from issuing a court order unless there is a document which contains all the prescribed terms along with your signature. Which by the looks of your document posted, they do not have one. I hope this helps, good luck.

[raaj_s]

Re: CCA validity of agreement from Amex/Newman

Thanks LJ. Should I also continue to make token payments to Newman or stop these? What would you suggest? And should I also cc Amex on the letter?

[LJMcLaw]

Re: CCA validity of agreement from Amex/Newman

Are you getting hassle and you are paying them? Are you joking with me? I would tell them that the issue you have is between you and American Express and that you will be dealing with American Express. It is totally up to you if you pay them or not. I cannot advise you on that. However, in the senario I spoke about no payments at all went to Newmans not 1 pence. You should always let Amex know your grievence as it is with them. They did not properly execute the agrement therefore they must take you to court to enforce the agreement against you; Section 65(1) CCA.

Please read the WARNING - IMPORTANT INFORMATION ABOUT YOUR RIGHTS statutory statement in all credit agreements. This will be in the 11 or 12 page agreement they have sent you with your 'express appication'. it explains they cannot enforce the agreement against you without going to court - that was written for consumers not lawyers who according to the McGuffick case do not consider collecting payments as a type of enforcement however if you refer to the Oxford dictionary the word enforce means 'Compel compliance with an obligation/law/rule/whatever it may be.' paying your payments is an obligation to pay under the agreement (In my opinion, if there was no agreement there is no obligation - this also applied for recording bad debt) - if they cannot enforce that agreement then they cannot force you to comply without a court order. Please remember that this is not the conclusion which was brought out in either McGuffick or Carey (becasue he relied on McGuffick) judgements. which makes it more difficult in court. they have stated enforcement means something different to the Oxford dictionary which seems very bizzare to me.

[raaj_s]

Re: CCA validity of agreement from Amex/Newman

Thanks LJ. Your comments and advice certainly give me a lot of confidence to take these bloodsuckers on.