Egg card agreement has been terminated

[diddydicky]

well i certainly don't agree with the proposition that egg have "terminated" the agreement yet they haven't

 

the creditor can restrict the account as most credit agreement terms allow for this but termination of the agreement is an end of it!

 

it is very useful for egg to confirm that it was terminated

 

now let's see them issue a default notice if you dont make the payments

 

the DN is predicated upon an enduring agreement as its intent and purpose is to give you the opportunity to remedy an alleged breach and if you do so within the time stipulated then it is as if "the breach never occurred"

 

in other words you return to the status quo

 

quite how you can return to the status of a live agreement when the creditor has already terminated it beats me!!

[basa48]

 

The letter we all received from Egg actually says as its heading (well mine does) "We are ending your Egg Card agreement".

[Guest HeftyHippo]

yep.

 

and then if you later fell behind in the payments, they issued a default notice, and then a termination notice. of course, many of us, inc me, didnt know then what we know now, about the significance of the ending of the agreement letter. I was reading recently, that the innocent party of a broken contract is entitled, on learning that the contract is broken, to consider his liability ended. I wonder if, 'on learning' could include later enlightenment to the fact that the contract was broken. ie, could we claim now that our responsibility is ended because we've only just become aware that the contract was broken. Eggs terms after all gloss over whether they are legally entitled to do that

[HP Mum]

Hmmm.

 

I am not sure what is my next step.

 

This letter from Egg seems to be a new approach, compared to other letters received.

 

Do you think I should now request a CCA and send my £1 po ?

Just to see what documents they come back with ?

The only issue I have is that Toymaker seems to think that the best course of action is to get them to explain how they legally terminated my account which was not in default. They can't explain. But the letter they have sent me seems to imply that they think they could terminate my account.

 

Does anyone have a good idea on how to reply to Egg now ???

[toymaker1]

I cant see the text of the letter

[HP Mum]

Hi Toymaker,

Post 989 again:

 

I just got a letter from Egg .

I will copy it below but in essence they say they have investigated, they were perfectly within their rights to terminate my agreement and my complaint is now closed.... Hmmm.

From reading others earlier remarks here, I seem to think that they are still full of hot air and not much else.

Please read the below as I am not sure how I argue back to them now...

has anyone had the same letter ???

 

"I am writing further to our recent contact regarding your complaint to inform you that we have completed our investigation. Once again, please accept our apologies for any inconvenience caused.

What follows is a summary of our investigation and decision.

Our understanding of your complaint

- you are unhappy that your Egg Credit Card Agreement has been terminated, and feel that this decision is unfair.

- you would also like to know where, in the CCA 74, does it legally entitle Egg to terminate your Egg Card Agreement

 

Our findings from the investigation

- We are regulated by the CCA74 and more recently to the Banking Code 2008 which states:

6.1 When you apply to become a customer or accept a product for the first time, we will give you any relevant terms and conditions for the product you have asked us to provide.

 

6.2. All written t&cs will be fair and will set out your rights and responsibilities clearly and in plain language. We will only use legal or technical language if necessary

 

In xx 2003 you agreed to abide by our t&cs which state:

18. Limiting use of the Account

We may, without warning, and without ending this Agreement:

- refuse to authorise a Transaction

- cancel or suspend the right to use the Account; or

- refuse or replace a card.

But we will only do this with good reason, for example, if you are in breach of this Agreement, to prevent such a breach, for fraud prevention purposes or for legal or regulatory reasons.

 

And

20.2 We can end this Agreement at any time. We will normally give you 30 days advance notice by post or email. However, if there are exceptional circumstances, or in any circumstances referred to in Condition 192 we may end this Agreement immediately and tell you about it afterwards, unless we are required by law to give you notice first. You can end it at any time by telling us to do so by post, phone or secure message.

 

Our Decision

- On this occasion, we are sorry that we are unable to uphold your complaint as our investigation showed that Egg is perfectly within its rights to end your credit agreement.

 

As a result of the decision reached, your complaint has now been closed. If you want to discuss any aspect of your complaint or provide further relevant information, please contact us using the details provided.

You have 6 months from the date of this letter to exercise your right to refer your complaint to the fos. If the fos notifies us of their intention to arbitrate on your behalf, we will no longer be able to discuss your complaint directly with you.

 

Signed by a lovely Customer Relations Adviser

 

Does anyone have a copy of t&cs dating from mid 2003 that they can post up here ?

What is the general opinion to this letter ?

All the best,

[toymaker1]

If I got that letter I would write something like this:

 

Dear Sir or Madam

 

Thank you for your letter dated xxxx.

 

With regard to Egg's statement that Egg is regulated by the Consumer Credit Act 1974 and more recently "to the Banking Code". Egg's legal department will be aware that Egg's credit card facility is regulated by the Consumer Credit Act 1974 and is not regulated at all by the Banking Code which, as Egg's legal department will be aware, does not regulate anything, in that is is a purely voluntary code of conduct for banking institutions.

With regard to your reference to term 20.2 of the Egg credit card terms and conditions, We can end this agreement at any time. This is precisely the central issue of my complaint, in that I have requested Egg to indicate to me the relevant section of the Consumer Credit Act 1974 which provides Egg with legal entitlement to terminate my Egg credit card agreement. i.e I am asking Egg to indicate to me the legal source which provides Egg with entitlement to have a term such as 20.2 which purports to give Egg the right to terminate my Egg agreement at any time.

 

As you will be aware, Egg has so far failed to provide a response to my request. I consider that my request for that information is reasonable, is directly relevant to Egg's termination of my Egg agreement, and is very simple for Egg to comply with. For example, if there is a section in the

Act which provides Egg with the right to terminate my Egg agreement, it should be a very simple matter for Egg to point it out to me, and the dispute would be resolved. I am still awaiting a response to my request for the information to which I have referred, and which was first made in my letter xxxxxxxx dated xxxxxxx.

 

In light of the foregoing, the dispute between Egg and myself is, unfortunately, by no means closed.

 

Yours etc

[HP Mum]

Sorry for my late reply. I do tend to agree with Toymaker on this. I don't think that letter above is giving Egg the chance to have another go at terminating in a different way. Obviously they cant do that again as they have terminated twice already !! Thrice would be stupid....

 

I have drafted the following along the lines of Toymakers advice.

Is there anything else that one would add ?

 

Thank you for your letter dated xx.

 

With regard to your statement that Egg is regulated by the Consumer Credit Act 1974 and more recently "to the Banking Code", I reply as follows.

Egg's legal department will be aware that Egg's credit card facility is regulated by the Consumer Credit Act 1974 and is not regulated at all by the Banking Code, which - as Egg's legal department will be fully aware - does not regulate anything and is purely a voluntary code of conduct for banking institutions.

With regard to your reference to term 20.2 of the Egg Credit Card terms and conditions, “We can end this Agreement at any time”. This is precisely the central issue of my complaint. I have requested Egg to indicate to me the relevant section of the Consumer Credit Act 1974 which provides Egg with legal entitlement to terminate my Egg Credit Card Agreement. I.e. I am asking Egg to indicate to me the legal source which provides Egg with entitlement to have a term such as 20.2, which purports to give Egg the right to terminate my Egg Agreement at any time.

As you will be aware, Egg has so far failed to provide a response to my request. I consider that my request for that information is reasonable, is directly relevant to Egg's termination of my Egg agreement, and is very simple for Egg to comply with. For example, if there is a section in the Act which provides Egg with the right to terminate my Egg Agreement, it should be a very simple matter for Egg to point it out to me, and the dispute would be resolved. I am still awaiting a response to my request for the information to which I have referred, and which was made in my letter, dated xx

In light of the foregoing, the dispute between Egg and me is, unfortunately, by no means closed.

[diddydicky]

 

I always try to see a problem from BOTH sides of the argument rather than a blinkered approach only from the perspective of the debtor

 

i see your point (and i am also not legally qualified) however "ignorance of the law" is not a valid excuse.

 

As far as your egg agreement is concerned i do not know the answer, but i suspect that if the agreement, which you presumably do not deny signing, has a clause which allows the creditor to terminate the agreement (i presume in a non arrears situation) by giving notice, then,( having signed and entered into that agreement) i would say it is for you to prove to a court either/or

 

a/ You did not understand what you were signing

b/ it is an unfair term or condition

c/ The terms or condition is overridden by the CCA itself

 

and it is not for the creditor , who assumed you knew what you were agreeing to, to prove otherwise- thus the creditor is (IMO) perfectly entitled to act on any of the terms and conditions of the agreement which you entered into - until such time as a court tells it that it cannot.

 

it is hardly going to apply to a court to rule against itself and so it would be up to you to take THEM to court if you disagree with the terms and conditions you signed up to. (or wait until they sue you then use it as a defence/counterclaim)

 

With regards to a letter of termination/demand for payment in full of sums not yet due under the agreement,-if you feel that this is an unlawful demand then there is NOTHING for you to do than to simply ignore it and carry on "performing" yourself. .

 

there is NO provision within the agreement itself , or the CCA 1974 which permits the debtor in these circumstances, to claim that the agreement is now rescinded or no longer endures- you are still bound by the agreement and you would have to sue the other side for breach of contract if they failed to perform under it.

 

 

if you believe that the creditors act of termination/demanding payment is an Unlawful act then you can, instead of choosing to ignore it,or sue them for breach , do "some act or thing" which demonstrates that you are prepared to accept their unlawful failure to perform their obligations and thus relieve yourself of YOUR obligations under the agreement.

 

that is common sense. One party cannot be expected to perform whilst the other does not.

 

However, to take this latter action, as opposed to the former - you have yourself to "step outside" of the CCA and into contract law- which does NOT offer you any more protection or bias that the other party, and so you cannot expect to be treated as you would (should) be under the CCA

 

The following maxims apply under contract law:-

 

"... a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which if neglected, prevents him from denying his liability under the document according to its tenor".

[per Lord Wilberforce in*Gallie v Lee*(1971)]

 

'.. a man cannot escape from the consequences, as regards innocent third parties, of signing a document if, being a man of ordinary education and competence, he chooses to sign it without informing himself of its purport and effect..'

[per Scott LJ in*Norwich & Peterborough Building Society v Steed*(1992)]

 

The very act of a debtor taking on the creditor in court as a LIP would i suggest, lead the judge to the conclusion that if the debtor was sane and savvy enough to handle this in court himself- he was certainly sane and savvy enough to understand what he was signing when he entered into the agreement.

 

Further, in accepting the unlawful act of the other side you are NOT terminating the agreement or contract, nor are you accepting that the other side has terminated the agreement

 

all you are saying is:- You have unlawfully stopped performing your obligations and rather than (or in addition to) suing you for breach of contract - I therefore i have the right (if i choose) to stop performing my obligations under the contract as well (so that for instance you can then look elsewhere to obtain the benefits of whatever the contract entailed- (also could infer duty to mitigate losses ) .

 

 

the law will tolerate unlawful acts and Thus the injured party, faced with an unlawful repudiation of the other parties obligations will have the opportunity to relieve himself of his obligations also _ but he would (IMO) be very foolish if he failed to clearly show that he has excercised that right and which if he does so, and since neither party is now performing "effectively" terminates the contract.

 

One cagger has already suffered by not making clear his acceptance of the unlawful repudiation by the creditor and the court ruled (rightly or wrongly) that in failing to make clear his acceptance of the unlawful repudiation- that the agreement endured.

 

quite why anyone would want to "take the risk" rather than simply write and accept the unlawful repudiation is beyond me

[HP Mum]

I'm not quite sure what you mean here dd ?

In simple language: do you mean 160,000 do not have a case against egg terminating their account early when not in default ? Just because egg felt like it they can terminate ? And then because one continues to make payments one is silently accepting the way egg terminated ? And this is how it would stand look to a judge in court ? I'm not sure I really understand what point you are making. Please explain. Thanks

[diddydicky]

 

no i think you misunderstood,

 

what i said was that if you have signed an agreement which contains a clause which allows the creditor to terminate an agreement other than by s87/8 then you are bound by that agreement unless:-

 

you claim that you did not understand what you were signing OR

that this term or condition was an unfair term or condition OR

that the CCA overrules the term or condition

 

 

what i was saying is that if you want to contest their right then it is YOU who must initiate the action to do so OR

 

wait for them to sue you and then use it in defence or counterclaim

 

the creditors argument will be that it assumed you knew what you were signing and therefore it is entitled to do what it says on the tin

 

it is therefore not for them to prove that they have abided by the terms of the agreement but for you to prove they have not!

 

sorry if it confused you

 

personally i think that they KNOW they haven't a leg to stand on otherwise there would be 160,000 writs in the post

 

on the other hand if you want to force the issue then you will have to commence proceedings against them

 

personally (as i haven't got an egg agreement) i would just sit and wait ou t the six years

[HP Mum]

Oh, ok. Thanks for that simplification .

I have no intention of initiating proceedings. I have posted the letter above contesting their argument and attempt to close my complaint ; now I wait to see how they reply....

I do wonder if they have sent such a letter to others though. So far no-one else on here has said they have received the same letter...

 

2dogs -T Munn told me to revert back to Egg. I suspect they might do the same to you. I reverted back to Egg and Egg then responded with a letter which was discussed on pg 51 above. I have reiterated that their complaint is not closed and now waiting to hear how they respond....

 

Dear Egg, In what sense should we believe then ??

 

HI

Actually Egg used end and terminate in their Jan 08 letters:

 

"...we are giving you formal notice that your agreement will end 35 days after the date of this letter...."

 

and on the last line

"....If you have any additional questions about the termination of your Egg Card Agreement, please ....blah"

 

hello again,

I seem to have missed out on the above disagreements !!

But in the meantime I have just received another letter from Egg. And would love some feedback. They seem to be fudging the issues.

 

FYI - I wrote this to EGG:

"With regard to your statement that Egg is regulated by the Consumer Credit Act 1974 and more recently to the Banking Code, I reply as follows.

Egg's legal department will be aware that Egg's credit card facility is regulated by the Consumer Credit Act 1974 and is not regulated at all by the Banking Code, which - as Egg's legal department will be fully aware - does not regulate anything and is purely a voluntary code of conduct for banking institutions.

With regard to your reference to term 20.2 of the Egg Credit Card terms and conditions, “We can end this Agreement at any time”. This is precisely the central issue of my complaint. I have requested Egg to indicate to me the relevant section of the Consumer Credit Act 1974 which provides Egg with legal entitlement to terminate my Egg Credit Card Agreement. I.e. I am asking Egg to indicate to me the legal source which provides Egg with entitlement to have a term such as 20.2, which purports to give Egg the right to terminate my Egg Agreement at any time.

As you will be aware, Egg has so far failed to provide a response to my request. I consider that my request for that information is reasonable, is directly relevant to Egg's termination of my Egg agreement, and is very simple for Egg to comply with. For example, if there is a section in the Act which provides Egg with the right to terminate my Egg Agreement, it should be a very simple matter for Egg to point it out to me, and the dispute would be resolved. I am still awaiting a response to my request for the information to which I have referred, and which was made in my letter, dated xx

In light of the foregoing, the dispute between Egg and me is, unfortunately, by no means closed.

 

 

Egg have now replied:

 

"Thank you for your letter dated xx in response to our letter dated xx. Firstly I would like to apologise for the misinformation in our letter relating to the Banking Code as you are correct in advising that this is a Voluntary Code of Conduct that Egg subscribes to. Please be aware that this has recently changed to the Lending Code of Conduct.

I have raised your issues with the legal dept and would like to confirm the following:

The CCA74 regulates the relationship between Egg and the customer. This prescribes certain t&cs which must be included in a credit agreement.

However, the CCA74 does not stipulate each party's rights in respect of termination of the credit agreement. In accordance with general contracting principles, this is agreed between the parties and was clearly set out in the Egg t&cs you accepted and agreed to.

The decision to terminate your agreement was following a biz review and cannot be overturned. I am sorry that you feel this matter is not closed; however should you remain dissatisfied you have 6 months from xx to exercise your right to refer your complaint to the FOS. If the FOS notifies us of their intention to arbitrate on your behalf, we will no longer be able to discuss your complaint directly with you"

 

My feeling on the above letter from Egg is that they say I accepted their t&cs. They say that general contracting principles stand as I accepted and agreed to their t&cs. So, would I be right, in following the discussions above, that if I agreed in writing to their termination of my account that even the general contracting principles would end ???

I can see that they are almost hoping I do go to the FOS as this means I can't argue with them anymore !!

 

Does anyone (Toymaker) have any idea -again - on how to reply again to this letter from Egg ???

[diddydicky]

 

your reply i would guess would be to the extent that as a consumer without the resources to your aid that the creditor has- you were unaware at the time of the unfair nature of the term in question and you feel that that particular term will be proven at some stage to be an unfair term or condition

[HP Mum]

I have re-read their letter.

 

There seems to be two moot issues:

1) This sentence: "the CCA74 does not stipulate each party's rights in respect of termination of the credit agreement".

So Egg are confirming that the CCA74 does not cover "termination" rights for either party - thus insinuating they are "off the hook" ???

They are also confirming that I agreed to this set of circumstances, which is outside the jurisdiction of the CCA74.

That by signing an agreement I should have understood "as a general contracting principle" that the agreement would not cover termination rights of either party.

(Note here that I have never asked for a copy of my agreement so do not know if the original is enforceable or not).

So is ignorance of the law allowed here ?

It is not allowed in most cases.

So, if every clause within Egg's agreement appears to be covered within the CCA74 then would most normal punters, in the eyes of a judge, be expected to also raise a question of termination rights - a clause which is not included in the agreement - at the time of signing ?

If it is not in the agreement, and seemingly not covered by the CCA74, then what is the legal standpoint?

The general public can't seriously be expected to understand what a "general contracting principle" means !! Especially when it now seems to mean that Egg can terminate an account solely to their benefit - meaning that they can impose new terms and higher interest rates without any new signed agreement from the original signed customer, who would never have agreed to such revised terms at original time of signing.......

 

 

2) "The decision to terminate your agreement was following a biz review and cannot be overturned"

So Egg are confirming that my agreement has ended and that they will never reinstate my agreement.

Boom. My Egg account is done, dead and buried.

Hang on - they still want me to pay on the account.

Ummm, I am confused....

 

 

Having pondered the above 2 points:

- my agreement has unequivocally ended (I have not acknowledged this in writing yet - should I ???)

- they have issued revised terms that I do not agree and have never agreed to in writing; hence we do not have any agreement anymore.

- how can they continue to chase this debt ???

 

So....

Any good ideas on a response to Egg now ?

Edited February 25, 2010 by HP Mum
typo edit

[BEC01]

In partial answer to HP Mum and Hippo.

So, yet again Egg have not thought through the implications of what they put in writing. So we now have an agreement that termination is not covered by CCA.

 

As Hippo points out, this is uncharted territory here.

So, what is happening is differing points of view. The only way to get a definitive answer is through the courts.

 

It is who will make the first move, consumer, or Egg?

 

Or, will there be any move...?

 

The general contract principles is total and utter nonsense.

I would ignore that. If one wants to look at several areas of contract law, Egg would (probably already do) realise that the termination letters were one almighty balls-up.

 

Interesting, this - I think - has much more merit than the enforceability route; which - incidentally - I think has much merit, based on PT's very informative and interesting thread.

 

OK folks, I have been waiting to share this.

It is relevant to Egg's "general contract law" point.

 

"The provisions of this clause shall survive termination of this Agreement."

 

Hopefully it is self explanatory...

[HP Mum]

What do you mean ??

Provisions of which clause ?

I dont have the agreement in front of me.

[basa48]

 

Having a quick Google around, it is a common practice in contracts to put in a clause along the lines of:

 

 

Egg should have made the 'termination clause' the subject of such a qualification if it wished it to survive the ending of the contract.

[Guest HeftyHippo]

BTW, whats happened to peterthebard?

 

has he been back since I asked him to show proof of what he claims? has he been exposed as someone just arguing with everyone for the sake of it?

 

I sincerely hope not

[HP Mum]

I dont think it is necessary to go down that path HH.

 

However, I would be interested in some help in drafting a reply letter to Egg including some of your points above .

[Guest HeftyHippo]

 

sorry hpm, didn't realise this thead was about yours, I thought it was a general discussion about what may may wrong with Egg agreements, and I've simply carried on the theory stated above that Egg cannot claim part of an agreement continues post termination without it being separate from the CCA.

 

as for what to say to Egg, my theory is NOTHING. Let them do the work, let them come up with an argument that will stand up, its not our job to explain the law to them, our job is to come up with a defence against their claim in court. Why give them an insight into possible defences. If they're confident about the agreement, let them persuade a judge.

[HP Mum]

Morning Toymaker .

So have you also received the letter that Egg sent last week to me ?

So far no-one else seems to have received such a letter from Egg.

 

And based on your last couple posts, do you think that I just - Again - write back to them saying that my complaint is far from closed, that again I repeat for them to advise where in the CCA does it say they can terminate my agreement when not in default ?? And until they do, the account is in dispute and they are unable to recommence collection themselves, or via a dca ?

 

I agree that they are fudging the point in their reply to me. They never deliberately answer the question. Just waffle...

[toymaker1]

 

I expect there is one in the post to me - they usually send out those letters to everyone on their list.

What is the number of the post with your letter in?

 

 

If it was me I would be inclined to file the letter and do nothing for now. The reason is; You have made it clear to Egg that the dispute is not closed.

Egg have confirmed to you that Egg recognises that the dispute between Egg and you is not closed ("I am sorry that you feel this matter is not closed").

That means they cannot at some future date, or after "6 months from XX" claim that you have given up fighting Egg, and therefore no longer have a dispute.

Just wait to see what Egg's next move is - maybe they will quietly drop the matter, including any money you owed them.

In which case let sleeping dogs lie.

If they resume their letters to you demanding you pay the money, just keep making the same request, asking Egg to indicate to you the relevant section of CCA which provides entitlement to Egg to have closed your account etc.

Whatever you do dont go to FOS.

FOS is incompetent, and acts on behalf of the creditors. It would also cause a lot of extra complications and unnecessary letter writing.

 

So far as the substance of Egg' letter, they are totally wrong (as they have admitted to you about the Banking Code!).

CCA1974 covers every aspect of termination of credit card agreements, and it is the law which governs credit cards.

 

Regards

 

CCA1974

[HP Mum]

HI again,

 

This is the bit that worries me though;

 

"However, the CCA74 does not stipulate each party's rights in respect of termination of the credit agreement. In accordance with general contracting principles, this is agreed between the parties and was clearly set out in the Egg t&cs you accepted and agreed to"

 

Having read some other posts, I am wondering if I should clarify this point. I mean, how can I (and everyone else) accept and agree to something that was not written. Egg are saying that it is implied and should be understood by the lay person, but I disagree. Most lay people would not understand this point: that Egg can terminate an agreement without a Default Notice, just because they feel like it (ie: not making any money out the client).

 

I have too many things going on to write more letters than I have to. But there is something niggling me about this. That clearly "general contracting principles" can not be left unwritten in their agreement.

Hmmmm. Some thoughts to ponder on this one....

[cab1ne]

its kind of making an agreement one sided.

 

debtor defaults: debtor pays

debtor terminates: debtor pays

 

creditor defaults: debtor pays

creditor terminates: debtor pays

 

 

cab

[BEC01]

Don't worry about this.

It is complete and utter nonsense.

 

If you are one of the 160,000 + terminated in 2008, then you really shouldn't worry about this. They ended your contract: purely out of their choice.

 

Therefore, you owe them nothing.

Furthermore, if you paid anything to them subsequent to termination in March 2008, then you should should claim all of those payments back, plus interest, plus compensation.

 

On top of that, billing and collecting for a service that has been withdrawn is an extremely serious offence.

 

Oh, and have they been harassing you for payments post-March 2008?

If so, then it becomes even more serious.

 

Egg are the ones that should be worried - not you.

IF someone takes them to court over this one, they are facing much more serious penalties than a CCJ.

 

My suggestion? File the letter, and ignore.