Egg CCA

[LB145]

It is a bad photocopy -but not as bad as some received - very small print - they reduced it in size to fit on theirr current headed paper but I can read it.

[vint1954]

Try a 2 in one letter, but also send the harassment letters. Both letters to Egg, c.c. Moorcroft. Harassment by telephone - Consumer Wiki

 

 

 

ACCOUNT IN DISPUTE

xxxxxx 2009.

Dear xxxxxxxxx

Re account no 11111111111111111

I write regarding continuing communication regarding the above account.

Re: my request under the Consumer Credit Act 1974

 

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed.

To date you have failed to comply with my request, sending only an illegible copy of a reconstruction. The documents that you have supplied, purporting to be an executed agreement are obviously not compliant with the Consumer Credit act 1974 . Without production of a legible copy of any agreement, I am unable to read the prescribed terms. In addition, I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing ( 12 working days + 2 ) to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and Not supplied.

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor. Not suplied

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly as no legible agreement has been supplied on request, merely an illegible copy of a reconstructed agreement, you have not complied with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in S.78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

To clarify S.61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as you become compliant with my request. As you are still not in compliance with my request I insist that the following takes place with immediate effect.

 

All entries which refer to missed payments be removed from my credit file

All collection activities cease with immediate effect until you comply with my request from 27/03/09 or such time as a court makes an enforcement order.

In addition, I draw your attention to the Office of Fair Trading’s guidance on Debt Collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

What I Require.

 

I require that you send me a true signed copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

What is required of a True Copy.

 

I would draw your attention to the text below, contained within a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required, when you respond to a CCA request.

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

Again at the risk of repeating myself, I refer you to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

As previously notified, I am now granting to you a further 7 days to produce a true copy of an executableagreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number balance to zero.

In addition, I am receiving unprecedented levels of telephone harassment from a company called Moorcroft, who I believe are acting on your behalf. I am receiving calls at my place of work, which is now putting my employment in jeopardy. In addition further calls to my home and mobile phone, including Sundays amount to harassment. The calls on Sundays also constitute a gross offence to my religious convictions and the level of calls received from your agents clearly amounts to harassment. I will now report Egg and their agent for this serious and unlawful breach.

You will be aware that your and your agents continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

Be advised that any further telephone calls from your company will be recorded.

I look forward to your response.

 

Yours sincerely

[LB145]

For what its worth, at the same stage, they got this from me. Your paperwork looks to have the same problems

Dear Sir

 

Account number xxxx xxxx xxxx xxxx - IN DISPUTE

 

I refer to your letter of 28th May 2009, and in particular the document headed “Egg Card Agreement for (my name)”, which I assume is the document you are relying on in relation to your demand for payment. However, I now consider to be in dispute for the following two reasons.

 

In your letter you say that the “signed credit card agreement ... shows you ] agreed to the Terms and Conditions of the agreement”. However, the agreement is improperly executed under section 61(1) of the Consumer Credit Act 1974 and associated regulations.

1.According to the Consumer Credit (Agreements) Regulations 1983 (Schedule 1), this agreement should have been given the heading “Credit Card Agreement”. In fact it has been incorrectly headed “Egg Card Agreement for (my name) “and, subsequently, “Credit Agreement”.

2.Additionally, no “Credit Limit” has been stated – this is a prescribed term set out in the Consumer Credit (Agreements) Regulations 1983, as required by section 61(1) of the Consumer Credit Act 1974. In paragraph 3 of the document you have sent me, the phrase used there - “Approved Limit” - is not sufficient to advise me what the credit limit is or how it will be decided, and therefore a prescribed term is not correctly stated. On this point, please see Central Trust Plc V Spurway [2005] CCLR,where HHJ Overend states

24.” In my judgment, the passages of Lord Nicholls’ speech cited by Mr Say persuade me that:

(a)The amount of credit must mean credit in its technical sense, and

(b)That although the use of the word “credit” is not prescribed, there should not be any confusion in the mind of the lay reader as to what the amount of credit is”

As the agreement has been improperly executed, it is only enforceable by an order of the court, by virtue of section 65. However, since it does not explicitly state the term “credit limit” (rather, it mentions only an "Approved Limit”), as required by Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, the court would be prevented from granting such an order by virtue of section 127(3).

3.Paragraph 22 of Schedule 1 Consumer Credit Agreement Regulations requires that the agreement details the default charges payable. The document that you have sent to me fails to provide this information, and is therefore deficient in terms of these regulations, making the agreement further improperly executed.

I trust you will now be in a position to reduce the balance on this account to £0 and to remove any default that has been registered by yourselves with any credit reference agency, as required by the Data Protection Act 1984.

 

Furthermore, please be aware that from this point onwards I will respond only to written contact. You are now under notice that I will not discuss personal or confidential matters over the phone under any circumstances whatsoever.

 

I trust you are aware of the limitations placed upon you now that the account has been formally disputed. I particularly draw your attention to the legal requirement that a creditor is not permitted to take any action against an account whilst it remains in dispute.

 

The lack of a valid and enforceable credit agreement and the payment protection insurance complaint are both very clear disputes and therefore the following applies:

• You must not demand any payment on this account, nor am I obliged to offer any payment to you.

• You must not add any further interest or charges to this account.

• You must not pass this account to any third party.

• You must not issue a default notice on this account.

• You must not register any information in respect of this account with any of the credit reference agencies. To register information with the credit reference agencies, or to issue a default notice, would also be in breach of Section 13.6 of The Banking Code, which stipulates that you can only register such information if the amount owed is not in dispute. I note that you are a subscriber to this Code.

 

Any further actions taken by Egg to collect the alleged debt whilst it is under dispute will be vigorously defended. I am also aware of the law regarding harassment of creditors under these circumstances and will use UK law to defend myself.

 

I look forward to receiving a satisfactory response.

 

Yours faithfully

This was shamelessly plagiarised by me from other letters written by others more knowledgeable than I, but if you find it useful then please go ahead.

Just one word of warning, despite all this, I got the Trevor Munn (we are taking you to Court) letter this morning. Sport, physical activity and health: Future prospects for improving the health of the nation

 

 

Hi Vint - just for my clarification - I used this template previously (sent in by Seriously Fed Up) and changed where neccessary - is your draft letter a follow on from this one - sorry just need to sort my confusion. I did get a CCa sent in the SAR package it's pre 2005.

Edited September 1, 2009 by LB145
Missed stuff

[vint1954]

Hi LB,

 

I was not aware that you had previously sent this letter. The letter that I posted is meant to question the agreement that you have receivced and deal with telephone harrassment.

[LB145]

Had a letter over the wekend to say that the card should be returned - Erm have they totaly ignored the fact that this account has been in dispute and that they have made absolutely no reply to the letter sent in August - any chance of any "written letters that would be suitable"?

[seriously fed up]

I think perhaps you are being a bit optimistic. You are arguing that the account is in dispute and one outcome of this is that at the end of the day they wont get their money back. In that event, I can understand that they dont want you spending any more of it.

On the other hand, I can well understand your ire that they simply ignore letters they dont want to respond to. It looks to me as if Egg are lying low just now. As many of us have experienced, they will never admit they are wrong, so in that sense, I suppose it could be argued that silence is golden.

[car2403]

Surely asking for the card back is tantamount to termination, though?

[LB145]

I just had to look that word up - tantamount not termination!

 

Its not a problem giving the card up - it hasn't been used in years!!! - there is a line in the letter that says "the Egg Agreement will continue to apply until your balance is cleared when we will close your account"

[vint1954]

Had a letter over the wekend to say that the card should be returned - Erm have they totaly ignored the fact that this account has been in dispute and that they have made absolutely no reply to the letter sent in August - any chance of any "written letters that would be suitable"?

Don't send it back. If they ask again, tell them that you have destroyed the card on their instructions.

 

MBNA actually produced a cut up card in court as proof of agreement, and the Judge let them get away with it.

[vint1954]

I just had to look that word up - tantamount not termination!

 

Its not a problem giving the card up - it hasn't been used in years!!! - there is a line in the letter that says "the Egg Agreement will continue to apply until your balance is cleared when we will close your account"

Not terminated yet LB.

[LB145]

Thanks Vint - O wise one!

[LB145]

Anyone heard of (now know the name of person) - keeps leaving messages to return call - without calling I do not know who or where his from!

Edited November 3, 2009 by LB145

[LB145]

Apologies for the last coment - I have now discovered who the person was and from where.

 

Update received letter in post today from Capital Credit Agencies - please see attached link?

 

http://i713.photobucket.com/albums/ww132/Diamond40_photo/EggResponseNov.jpg

[vint1954]

Apologies for the last coment - I have now discovered who the person was and from where.

 

Update received letter in post today from Capital Credit Agencies - please see attached link?

 

http://i713.photobucket.com/albums/ww132/Diamond40_photo/EggResponseNov.jpg

I would adapt the letter in post #27 and send it.

 

Also notify the OFT regarding the threat to use a charging order on your property. They are gathering evidence on this practice.

[LB145]

I would adapt the letter in post #27 and send it.

 

Also notify the OFT regarding the threat to use a charging order on your property. They are gathering evidence on this practice.

 

Hi Vint, thanks for the input - just need to clarify that I am sending the right letter - I previously used the template in #28 (from Seriously Fed up) telling Egg why I was disputing the CCA - would the letter in #27 work for this as well! - apologies for asking you to repeat something but things are escalacting on other accounts and I need to have a clear pathway where I am on each thread!

[vint1954]

If you have started down the road outlined in post 28, then keep to that tack. Just a point to note, the requirement to include headings came in much later, 2006 I think.

[seriously fed up]

there may have been a variation in 2006 - I dont know. But if you look at Schedule 1, paragraph 1(d) of the 1983 Regs (1983/1553) it says that there should be a heading (section d deals with credit cards, while other sections deal with other types of agreement) to the effect that it is a

(d) "Credit Card Agreement regulated by the Consumer Credit Act 1974"

It then goes on to make clear that this should include the name and postal address of the creditor and debtor *(paragraph 2).

Now a court may well decide that leaving this out isnt fatal, but it has been a requirement since 1983. So, in my view, the more the merrier.

[vint1954]

there may have been a variation in 2006 - I dont know. But if you look at Schedule 1, paragraph 1(d) of the 1983 Regs (1983/1553) it says that there should be a heading (section d deals with credit cards, while other sections deal with other types of agreement) to the effect that it is a

(d) "Credit Card Agreement regulated by the Consumer Credit Act 1974"

It then goes on to make clear that this should include the name and postal address of the creditor and debtor *(paragraph 2).

Now a court may well decide that leaving this out isnt fatal, but it has been a requirement since 1983. So, in my view, the more the merrier.

SFU, this also needs to be the registered address of the creditor. The companies act makes it a criminal offence to omit the registered address of the creditor, although this does not help with the enforcability issue.

 

If you look at the 2004 ammendments, the separate headings requirement are listed there. I was fairly sure that these were recent additions, as there have been in depth discussions on other threads. I will check 1983 out though.

 

Vint

[vint1954]

I have had a look at 1983. Most of the regs relate to 2004 & 2005. Cannot find a pure copy of 1983. The heading is mis-leading.

 

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=12319&d=1252396440

[LB145]

Thanks for looking Vint & SFU - what do you both think should be the next move? sorry I need guidance as this is way beyond me (blonde - remember!)

[vint1954]

Hi LB,

 

Send the letter in post #27, but change the first paragraph to:

 

Further to your letter dated xxxxxxxxx and my request under the above act, your attention is drawn to the fact that this account remains subject to a serious dispute and I have yet to receive a response to my letter dated xxxxxxxxx. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed.

 

Add pargraph at bottom:

 

With rereference to the return of my Egg card, this was desposed of some time ago, so I am unable to return this to you.

[LB145]

Big thank you Vint -much appreciated - just found out i am not one of the two mega millionaires that won £45m each! so still in debt.

[LB145]

Update: No response from letters sent

[LB145]

Updated too soon - this arrived this morning - quite hard for the layman to uderstand can someone have a read and advise! Thx.

 

http://i713.photobucket.com/albums/ww132/Diamond40_photo/EggResponseNovemberPage1of2.jpg

http://i713.photobucket.com/albums/ww132/Diamond40_photo/EggResponseNovemberPage2of2.jpg

[MandM]

Update: No response from letters sent

 

Updated too soon - this arrived this morning - quite hard for the layman to uderstand can someone have a read and advise! Thx.

 

http://i713.photobucket.com/albums/ww132/Diamond40_photo/EggResponseNovemberPage1of2.jpg

http://i713.photobucket.com/albums/ww132/Diamond40_photo/EggResponseNovemberPage2of2.jpg

 

mmmm. I see the 3rd to last paragraph refers to "your client". Was having this same conversation yesterday about Eggs cut and paste response letters (badly done lol).

 

subbing.

 

M