Is My Egg Cca Enforceable??

[exasperated]

SFU,

Edited my letter in post 24 and added the case law you have stated and it now is beginning to look like the letter which was hopefully to prevent the postal ping pong but I doubt it from what you say.

The sentence re Bradley Say does look misplaced so I will rethink that one.

Thanks for your input

[exasperated]

Would anyone care to add or comment on the letter to the EGGY boys in post 24

Thanks

[seriously fed up]

Sorry. missed that what you had done was to go back and edit your previous post - bit too subtle for me .

What I have done is to copy that into Word, make some comments (some of which are to leave a couple of phrases out - esp re consumer being a layman) and copy it back in here,

Dear EGG,

You have asked me to state why I consider your agreement unenforceable at law and the reasons are this...

 

• The word Approved Limit is used, which is insufficient to advise me what the credit limit is or how it will be decided therefore a prescribed term is not correctly stated.
  The case I refer to is 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.
   
  Following HHJ Overend’s view, the agreement should make clear to the consumer, what the credit limit is or how it will be determined. It is not possible to say with any certainty that the documents EGG have provided are clear, unambiguous or that a consumer would understand that approved limit would be their credit limit.
  
• You may also wish to consider other relevant case law to running credit agreements in particular:
  
  1. Wilson v Hurstanger, where LJ Tuckey makes clear that the prescribed terms MUST be there; I would be inclined here to go to the case – you should be able to find it quite easily with a Google search – and actually quote a relevant section of Tuckey’s judgement
     
  2. Wilson v First County Trust where Sir Andrew Morrit says that if the creditor got it wrong the money must be a gift. As above
     
  3. Wilson v Secy of State for Trade and Industry where it is stated: Wilson and others v Secretary of State for Trade and Industry [2003] UKHL 40 paras 4 & 71confirms that errors in the prescribed terms preclude a court from making an enforcement order and that Parliament expressly intended that such errors should render credit agreements unenforceable. At para 49 Lord Nicholls of Birkenhead stated
     “The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan… when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear"
     

   

  [*]The agreements fail to state the rate of interest for cash withdrawals. From what I have seen the agreement only states an APR which is not sufficient for cash purchases as cash purchases includes a 1.25% handling fee which is included in the APR so it cannot be an accurate reflection of the rate of interest. Again a prescribed term is missing

  [*]The heading of you credit agreements is worded in contravention of the Consumer Credit Act Regulations 1983 (1983/1553) section 2, paragraph 4, which states:

   

  “Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain, shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below--

  (a) the nature of the agreement as set out in paragraph 1 of Schedule 1 to these Regulations;”

If we look at paragraph 1 of Schedule 1, this makes clear that the order of presentation required by paragraph 4 of section 2 requires the agreement to be headed "Credit Card Agreement regulated by the Consumer Credit Act 1974". The document you have sent to me quite clearly fails to do this.

 

• Also it is worth noting that, Paragraph 22 of Schedule 1 Consumer Credit Agreement Regulations requires that the agreement details the default charges payable and your Agreements DO NOT
  

Finally you will purport that the missing information is set out within your terms and conditions, for which I have to inform you IT CANNOT BE. The reasons for this is that Regulation 2 (4) Consumer Credit Agreement Regulations 1983 (SI1983/1553) requires that the statutory information set out within Para 3-19 of schedule 1 and 2 SI1983/1553 should be shown as a whole and not interspersed with other information if the agreement is to be properly executed and compliant with section 61 CCA 1974

 

We have the details to hand of Mr Bradley Say of Gough Square Chambers London.

Kind Regards

Hope that helps

SFU

[Bosund]

Subbing, am after an Omlette...

[exasperated]

Nice one Bosund,

As long as the Eggs are beaten you can make...

omellete,scrambled and other dishes

but the result remains the same you have to beat the Egg first

[exasperated]

SFU

Just an update...

I have replied in full to EGG's letter with details from you and other caggers. I know that some advise given on here is to not constantly reply to the creditor to avoid being involved in a postal ping pong. Personally I think it is important to challenge any NEW points raised by the OC or DCA. When we eventually go to court I will file all these exchanges as part of my defence illustrating clearly to the judge that I have tried to resolve the issue with EGG (OR OTHER oc/dca)without the need for litigation. Furthermore IMO when any creditor raises a point you have not responded to this could clearly come back and bite you at a later date. I do not profess to know everything as I am relatively new but again IMO I would not like to go to court in a case where the opposition can prove that they raised facts to which they did not receive a response. Also if the letter does not receive a response and the matter is raised in a future court battle you then have to scramble about preparing a reply when you can do it without that pressure if it is done promptly when received.

I have noticed that the template letters I have been receiving have been modified stating that they consider the dispute closed if they do not receive a reply by a certain date.

How can you ignore that? if you write back to them on any new points they have raised explaining why the account is still in dispute then the ball remains in your court IMO

Let you know when I hear anything back from them, whatever it is(providing it has not already been covered) they will be getting as reply from me thats for sure

[mills1]

Good luck Exasperated

Subbing

[seriously fed up]

Fully agree with you Exasperated . Just one point though - their letters they send suggest a dispute is closed no matter what pile of old tat they have sent you in response to a CCA request - so their view of whether there is a dispute is not definitive. But if its a sustantive matter (eg a new argument raised) then there needs to be instant rebuttal.

Good luck and I'll look forward to hearing you get on.

SFU

[Livis]

hello exasperated,

 

have you had any update on this yet?

i have recieved a similar letter from egg and am having a hard time trying to compile a reply xx

[exasperated]

Hi Livis,

Sorry for late reply I had my internet connection terminated in Jan so its been difficult to get access........

Yes they set a DCA on me who bombarded me with telephone calls on my works mobile number. I informed them that I was recording all the calls and that if they called again I had been informed by my employers that I would face disciplinary action. I followed it with a letter to DCA telling them I had been disciplined as I am not allowed to take personal calls and informeing them if I was dismissed I would seek damages from both them and EGG. I also informed the DCA that the account was in dispute still and this harrasment would be reported to the relevant authorities. DCA finally wrote to me saying they had removed my file and would not contact me again.

Its been quiet since

[exasperated]

Hello,

After replying to livvy a short while ago informing that all was quiet I got a letter from a new DCA today which is below. Anyone got thoughts on the reply i.e send letter to dca whilst account in dispute?

ANYBODY HAD DEALINGS WITH ARC AND HOW DID YOU GET ON?

 

[HammyUK]

HAd this lot set on me recently - sent the usual rebuttal letters to them and have had a reply back stating that it is now on hold pending a reply from their clients.

Letter from Egg on the same day stating why do I think its an issue, tell them what I think is wrong, etc so will bounce a copy of the letter above to them - should cause a few "issues" back at egg house...........

[seriously fed up]

You will send them the usual rebuttal letters - "approved limit etc" - and in due course you may well get a letter from the legend that is Trevor Munn. The first one will say that he has been instructed to prepare a court claim against you for however much they think they can get away with in court saying you owe them - unless you phone them and do what they say. A couple of weeks later, you will get another letter saying that these papers are being prepared - agtain unless you phone them. What happens next can be variable. In my case - following another letter saying what was wrong with the papers that Egg had sent me and that in any event I was in a jurisdiction in which Trev doesnt enjoy rights of audience, I got a letter from ARC telling me that they were reverting to their client (ie Egg) for further instructions. Aint heard nothing since - and that was a year ago (hugging a tree!).

Others have had fairly emollient letters, using persuasion where Trevor's brutish threats have clearly failed.

On the other hand, he MUST take someone to court now and again. But as with many of these threats, I suspect the ratio of the number of actual court claims to threats thereof, is pretty low.

Just send them a letter telling that the agreement supplied by Egg is not enforceable for the following reasons ........

PT's case starts next week. I think they will hold their fire till that has finished - and hopefully afterwards.

Good luck PT:grin:

[exasperated]

SFU,

Nice to hear from you, how you doin?

Have you got more details on PT's case I could read up on.

Thanks

[seriously fed up]

Just what there is his on his thread - "egg credit agreements and what is wrong with them" (or something like that) - its about 200 pages long now so you cant miss it. It will be near the top of the most recently updated threads on egg.

[exasperated]

SFU,

I have been informed that Peter Bard once of CAG is making himself very busy trying to ridicule PT's defence against EGG particularly the term 'approved limit'. Not sure why that is, I thought Bard was a fighter on behalf of the consumer so what happened there?

My line of thinking is simple if EGG thought for one minute that was PT has challenged was a non starter we would all have been in court and had our CCJ's already.

The outcome in the Mercantile court will have great bearing on lots of the caggers on here so lets hope he gets an understanding knowledgable judge otherwise i can sense a great feeling of forboding.

[exasperated]

Hello,

No doubt everyone is aware of the pending court case between PT's firm and Egg in the mercintile courts very soon. Personally I think had PT's firm had no legal standing in their objections to Eggs agreements we would have all been in court and already had our CCj's.

Interestingly I have just been on another thread where Tex had the Egg debt sold to Acktiv hence my question?

[seriously fed up]

Starting at the end of your post, I completely agree about the significance of this case. Egg are, it is said, in financial difficulties already. Losing this will only multiply that, especially if it gets the oxygen of publicity. Re the judge, clearly the real proof of that will be the sustainability of his judgement, but PT has indicated on his thread (egg credit card agreements- what I think is wrong with them) that he thought the judge was pretty good. It seems an appropriate "pun" here to observe that the "jury is still out" on that one.

As for Mr Bard, yes that was strange. This site is full of conjecture - some of it strong right down to the laughably weak. But the point is that there are lots of arguments which might/might not hold up in court, but - and this is the important point - the lenders dont want to take the chance that they might hold up - some at least. Essentially this was PT's point about egg agreements, and the fact that they changed from approved limit to credit limit (2005?) suggests that at the very least there is something in it. But prior to the case being heard, PT was conjecturing along with the rest of us. Mr Bard's criticism seemed to go way beyond challenging a conjecture (challenge to a conjecture btw is good imo, as either it knocks it down and so we know it wouldnt have worked, or it makes it stronger). It became highly personal, to the extent of challenging whether or not a case would be heard at all. I dont know why he went off like this - perhaps your Egg hypothesis is right. Dont know. Top dogs arguing about who is top dog?

You mention foreboding at the end. Mine centres on the fact that PT took the fight to Egg. PT's client was the claimant - the burden of proof that "approved limit" was not adequate (there are other legs to the case though) was on them and not on Egg. This does cause me some concern, rather in the way that the Manchester case caused me concern for the same reason. My own view is to leave them (the lenders) alone. I have been challenged - in letters btw - more than once to take them to court to seek a ruling that the paperwork they have sent me is not enforceable. That would make me the claimant and put the onus of proof on to show them not to be enforceable. I will only do that in a day that doesnt have a y in it. If they want to show that the nonsense they have sent - usually my name and address with not a term or condition (never mind prescribed term) in sight can be enforced, then they can do that. In my opinion - and it is a matter of opinion - that is the best way.

Lastly will I be delighted/ very pleased / made up (strike out whichever doesnt apply) if PT's case is successful ? All of these and a great deal more!

[exasperated]

It seems that Egg are getting a bit desperate and are using a variety of DCA's to try and collect on their debts. It is reassuring that they have been reluctant to actually take me to court and they have tried with 4 different agencies and all have been seen off.

Does anyone know when pt's case will be heard?

[exasperated]

Anyone know the answer?

[postggj]

The Answer Is No

 

A Creditor Cant Sell Your Account While In Official Dispute And They Have Not Sent A Letter Giving You The Oppertunity Of Passing It Up To The Fos If They Reject Your Dispute

[exasperated]

Hi Post,

Egg have instructed a company called Activ who apparently have been sending letters out to members of this forum saying they have purchased the debt. How have they got round this?

[exasperated]

Hi,

Just wanted all those battling against egg to be aware of a Supreme court decision which may have relevance.

Here's the link.......(Thanks to Ruprecht).....

 

http://www.supremecourt.gov.uk/docs/UKSC_2009_0217_Judgment.pdf

 

Also the infamous Mr Munn has been in touch yet again, has anyone got a template letter which actually stops these people from hassling you. His latest letter below.........

 

Edited July 15, 2010 by exasperated

[exasperated]

I also note that the amount displayed in Munn's letter is well in excess of £5000 which is considerably more than when the account was originaly put into dispute.......relevant or not?

[seriously fed up]

short of doing something that if you got caught would put you in the slammer, i really dont know what will stop them. You might try advising them that if they do proceed with their threat of course action, as well as defending vigorously on the grounds that have already been worked out here, you will seek to have the case stayed till the outcome of PT's case is known.

But even this one has a "perhaps" in it. I dont mean the "we wont do this if you pay up" bit, but before then where they say "A County Court claim has been prepared and is ready to be issued" - so "we might do this, or we might not. We havent quite made up our minds".

If the case did come to court then you would be able to dispute the amount they are claiming.