Egg/CapQuest threats

[alisindebt]

Hi!

I have all the info needed here to get started and made it as short and succinct as possible.

In the early 2000's, I took out an Egg credit card and two unsecured loans. I kept all of the payments up to date and never missed a payment.

I then started to work abroad and came home for short break and paid off 5000 pounds on my Egg card, leaving a small balance. During a routine call to Egg, they started to question my circumstances. Once they knew I was working abroad they the card would be "frozen", so I could no longer use it, but I would still have to make the monthly payments as usual.

I used to make use of the interest free offers and then pay it off, so i guess I was an "unprofitable" customer, and i was amongst the first ever to be kicked out by Egg for that reason.

They said their customers have to be in the UK all the time. There followed a big row between me and them, whereby I said that if would not let me use the account due to being abroad, how come they would accept payments from my UK bank (Smile), which I still have to this date at my UK address.

I stopped payments for a while and then reinstated small monthly payments to the card and two loans.

I agreed with Egg three ways to contact me whilsst abroad: using their secure email on their banking website, using my personal email and to my UK postal address. This is not where I live, of course, just somebody who colleccts my post and forwards it to me around the world.

I explained that post to my UK address would be forwarded to me periodically. Needless to say, every time I received forwarded post, the bag was full of letters from Egg and a whole plethora of debt collection agencies.

I meticulously took the time to write letters and emails to each agent and also Egg, confirming once again what i initially had said, that I was working and living abroad.

Knowing this, Egg played a nasty trick of issuing a county court summons (Northampton bulk court-surprise, surprise!) through a collection agency's solicitor and they won by default because I didn't even know about it at the time.

The claim was against one account only, one of the unsecured loan accounts. When a later batch of post was forwarded to me, I found the county court judgment against me.

Firstly, I called the solicitor from abroad and said that he already knew I was abroad, and he seemed very embarrassed.

Then I wrote to the county court with a whole load of info. This was copies of letters to all the agencies explaining that I was abroad, likewise letters repeating amny times, the same details to Egg, also a copy of my working agreement on a cruise ship, certified and witnessed by the Chief Petty Officer (Accountant).

Of course, the judgment was set aside and remains so to this day. I still maintain monthly payments at reduced rates.

Some considerable time later, in a subsequent batch of post, I received a letter from CapQuest saying that they had purchased one of the debts from Egg i.e. the one from the bulk county court, one of the two unsecured loans.

So I switched my monthly payments to CapQuest. The credit card and second loan remain with Egg.

However, despite the fact that I am now working in China and also sent Capquest letters saying so (even some Chinese documentation) they have been repeatedly sending letters (right up until the present time)threatening county court action to my UK address and emailing me weekly, also asking for higher monthly payments.

Furthermore, the unsecured loan debt at the time of default with Egg was around 2600 pounds. With late payment charges, added interest and other penalty charges it was bumped up to around 3800 pounds by the time it was sold to Capquest.

Now I note CapQuest are adding interest charges to the debt. Currently 800 pounds or so, taking it up to near 4600 pounds. I did not realise that debt collection agencies could add interest payments to purchased debts.

I recently sent by international DHL recorded courier delivery, two cheque payments of 1 pound and 10 pounds to CapQuest for a true copy of my original CCA and my Data Protection data, along with standard template letters asking for this information. It has been like pulling teeth.

They have cashed both cheques but refuse to send me the data Protection info.

Firstly, they don't want to use email to send the Data Protection Act stuff, as they say it is unsecure, despite using the same to ask me for payments and threat leagl action every few days for ages.

Secondly because I don't live in the UK (although they are quite happy to send letters, threaten county court action and receive payments from my UK address) and thirdly, they claim to have lost my Chinese address.

This is despite the fact that DHL international couriers confirmed to me a signed delivery of the documents to Capquest's Fleet, hampshire, address, a few days ago. The package, by Chinese law, had to inform the recipient of the sender's address in China (i.e. my address).

Yesterday, they emailed me, saying that I was sending the letters and cheques from within the UK, which assumes that I am really living there (not in China), or that I have a contact who is fraudently signing my letters and cheques for me! They also refuse to acknowledge the set aside county court Judgement, saying that it never happened!

However, they did send a copy of the CCA. I have attached the two pages for your inspection.

I am not sure if you can read the scan, but it states the following:

Date of agreement: 26th May 2002

Signatures: mine and theirs, are both on the document.

Interest rate: 9.51% APR: 9.9%

Loan: 6000 pounds

Monthly instalments: 105.41 pounds

It also refers to various clauses in the personal loan agreement terms and conditions (e.g. clauses 6,7,8 or 9), however, as you can see, the CCA was only two pages long and there were no other documents included with it when I received it a few days ago.

I also note that does not mention a cooling off period.

So, there we have it. Any suggestions?

Many thanks from me here living and working in China to those who reply! A

Hi! This is my first thread!

I have all the info needed here to get started and made it as short and succinct as possible.

In the early 2000's, I took out an Egg credit card and two unsecured loans. I kept all of the payments up to date and never missed a payment.

I then started to work abroad and came home for short break and paid off 5000 pounds on my Egg card, leaving a small balance. During a routine call to Egg, they started to question my circumstances. Once they knew I was working abroad they the card would be "frozen", so I could no longer use it, but I would still have to make the monthly payments as usual.

I used to make use of the interest free offers and then pay it off, so i guess I was an "unprofitable" customer, and i was amongst the first ever to be kicked out by Egg for that reason.

They said their customers have to be in the UK all the time. There followed a big row between me and them, whereby I said that if would not let me use the account due to being abroad, how come they would accept payments from my UK bank (Smile), which I still have to this date at my UK address.

I stopped payments for a while and then reinstated small monthly payments to the card and two loans.

I agreed with Egg three ways to contact me whilsst abroad: using their secure email on their banking website, using my personal email and to my UK postal address. This is not where I live, of course, just somebody who colleccts my post and forwards it to me around the world.

I explained that post to my UK address would be forwarded to me periodically. Needless to say, every time I received forwarded post, the bag was full of letters from Egg and a whole plethora of debt collection agencies.

I meticulously took the time to write letters and emails to each agent and also Egg, confirming once again what i initially had said, that I was working and living abroad.

Knowing this, Egg played a nasty trick of issuing a county court summons (Northampton bulk court-surprise, surprise!) through a collection agency's solicitor and they won by default because I didn't even know about it at the time.

The claim was against one account only, one of the unsecured loan accounts. When a later batch of post was forwarded to me, I found the county court judgment against me.

Firstly, I called the solicitor from abroad and said that he already knew I was abroad, and he seemed very embarrassed.

Then I wrote to the county court with a whole load of info. This was copies of letters to all the agencies explaining that I was abroad, likewise letters repeating amny times, the same details to Egg, also a copy of my working agreement on a cruise ship, certified and witnessed by the Chief Petty Officer (Accountant).

Of course, the judgment was set aside and remains so to this day. I still maintain monthly payments at reduced rates.

Some considerable time later, in a subsequent batch of post, I received a letter from CapQuest saying that they had purchased one of the debts from Egg i.e. the one from the bulk county court, one of the two unsecured loans.

So I switched my monthly payments to CapQuest. The credit card and second loan remain with Egg.

However, despite the fact that I am now working in China and also sent Capquest letters saying so (even some Chinese documentation) they have been repeatedly sending letters (right up until the present time)threatening County Court action to my UK address and emailing me weekly, also asking for higher monthly payments.

Furthermore, the unsecured loan debt at the time of default with Egg was around 2600 pounds. With late payment charges, added interest and other penalty charges it was bumped up to around 3800 pounds by the time it was sold to Capquest.

Now I note CapQuest are adding interest charges to the debt. Currently 800 pounds or so, taking it up to near 4600 pounds. I did not realise that debt collection agencies could add interest payments to purchased debts.

I recently sent by international DHL recorded courier delivery, two cheque payments of 1 pound and 10 pounds to CapQuest for a true copy of my original CCA and my Data Protection data, along with standard template letters asking for this information. It has been like pulling teeth.

They have cashed both cheques but refuse to send me the data Protection info.

Firstly, they don't want to use email to send the Data Protection Act stuff, as they say it is unsecure, despite using the same to ask me for payments and threat leagl action every few days for ages.

Secondly because I don't live in the UK (although they are quite happy to send letters, threaten County Court action and receive payments from my UK address) and thirdly, they claim to have lost my Chinese address.

This is despite the fact that DHL international couriers confirmed to me a signed delivery of the documents to Capquest's Fleet, hampshire, address, a few days ago. The package, by Chinese law, had to inform the recipient of the sender's address in China (i.e. my address).

Yesterday, they emailed me, saying that I was sending the letters and cheques from within the UK, which assumes that I am really living there (not in China), or that I have a contact who is fraudently signing my letters and cheques for me! They also refuse to acknowledge the set aside County court Judgement, saying that it never happened!

However, they did send a copy of the CCA. I have attached the two pages for your inspection.

I am not sure if you can read the scan, but it states the following:

Date of agreement: 26th May 2002

Signatures: mine and theirs, are both on the document.

Interest rate: 9.51% APR: 9.9%

Loan: 6000 pounds

Monthly instalments: 105.41 pounds

It also refers to various clauses in the personal loan agreement terms and conditions (e.g. clauses 6,7,8 or 9), however, as you can see, the CCA was only two pages long and there were no other documents included with it when I received it a few days ago.

I also note that does not mention a cooling off period.

So, there we have it. Any suggestions?

Many thanks from me here living and working in China to those who reply! A

[dx100uk]

if or if not the CCA is enforceable i dont know, but it looks not, thats typical for egg.

now, i'd reclaim all charges & the unlawful interest added on all /.

this will have the nice benefit of puting them into dispute, so no more suprise CCJ's.

i'dalso seriously consider not paying anythingbut a reduced amount on any A/C that they have failed to respond to the cca request on.

dx

[cds]

Originally Posted by dx100uk

if or if not the CCA is enforceable i dont know, but it looks not, thats typical for egg.

now, i'd reclaim all charges & the unlawful interest added on all /.

this will have the nice benefit of puting them into dispute, so no more suprise CCJ's.

i'dalso seriously consider not paying anythingbut a reduced amount on any A/C that they have failed to respond to the cca request on.

dx

Hello dx any chance of pointing out where you think egg loan agreements are defective, found 5 out of six of my cc agreements faulty but can't crack this one ()

cds

[alisindebt]

Hi

Thanks for the replies so far.

However, what I could really do with is knowing why the CCA could be deemed to be unenforceable.

The only things I spotted myself so far are two things, but I am not sure if this is enough to make it entirely unenforceable:

1) I note that there is no reference to a cooling off period.

2) It also refers to various clauses in the personal loan agreement terms and conditions (e.g. clauses 6,7,8 or 9), however, as you can see, the CCA was only two pages long and there were no other documents included with it when I received it a few days ago.

Many thanks!

[cds]

Originally Posted by alisindebt

Hi

Thanks for the replies so far.

However, what I could really do with is knowing why the CCA could be deemed to be unenforceable.

The only things I spotted myself so far are two things, but I am not sure if this is enough to make it entirely unenforceable:

1) I note that there is no reference to a cooling off period.

2) It also refers to various clauses in the personal loan agreement terms and conditions (e.g. clauses 6,7,8 or 9), however, as you can see, the CCA was only two pages long and there were no other documents included with it when I received it a few days ago.

Many thanks!

you should have been sent the full terms and conditions relevent at the time of the loan if they didn't send them they are in breach of your request. I too am having difficulty cracking this egg loan and hope dx will be back soon to clarify is statement.

cds

[alisindebt]

Hi

I have still not received any further replies and remain somewhat in the dark as to the status of the CCA.

Basically, is it enforceable or not?

I also wrote to the National Debt Lin e two weeks ago, but they are snowed under, they cannot respond in a timely manner.

The reason that this is important to me is that there are also two other debts that I have with Egg, for a credit card and a second unsecured loan. I will get copies of the CCAs shortly.

Therefore I need to decide whether to challenge or try and settle at a lower amount.

I prefer to challenge, but need to know how and the starting point is whether the CCA above is enforecable.

Many thanks!

Al

[alisindebt]

Hi

I managed to get some "official" legal advice on this and thought I would pass it on to anyone who has a similar CCA. CCA problems fall intto two categories. Firstly, badly executed agreements. If you dispute such an agreement the whole thing is put on hold, they cannot take payments from you or add any interest or charges. At least this buys valuable breathing space.

In the case of the agreement that Imposted above, it is more than likely unenforceable. This is because the "prescribed terms and conditions" are not included in the two page agreement. These terms should either be part of the agreement and therefore signed for, or if in a separate document that should also be signed by both parties and should be produced when the CCA request goes in.

Obviously, that is not the case here. Furthermore, they quote the amount of money borrowed and payment terms but they are supposed to quote the actual cgharge for credit as a separate figure, which obviously they have not. Finally, there is no indication of a colling off period.

Now don't necessarily think that the debt just goes away. yes, you can dispute it for years to come and it may be that other DCAs jump on the case.

Persoanlly, I know some would disagree with me, I would rather use this as a negotiation tool for a reduced settlement. I sent a letter to CapQuest drafted up by a Lawyer, sotty I cannot post it until I know the outcome,, but basically as a result of this CapQuest have gone very quiet, so I am anticipating the ability to settle F+F for a low figure very soon.

[alisindebt]

To update this thread, it turns out that the agreement is none enforceable and even CapQuest have confirmed that in writing. therefore they cannot legally chase this money, besides which I live abroad and so the county court system does not stretch this far!

Furthermore, the same applies to a second Egg Loan, which is also disputed and on hold.

I also had a debt of just over 10000 pounds (ten thousand0 with Abbey and they sold the debt to Lowell's, who now say the card agreement is so old, there isno copy any more and they have written to me to say that they will not contact me any further to pursue the loan.

So to anyone out there reading this, get your CCA from your creditor and see if it can be disputed.

[cds]

Hi Alis

sounds like good news for me to, I have an identical cca to the one above.

Where did you get the information from for your deductions?

there seems to be alot of comments on here regarding cc but egg loan agreements are few and far between.

best of luck

cds

[alisindebt]

Hi CDS

I had the same problem i.e ;ots of info on Egg cards and little on CCAs for loans. First, I got a solicitor to look over it who speicalises in this. I then sent a letter specifying that what they supplied me was not a true copy of the CCA and accordingly, they are in default. In a letter to me they accpeted this in writing, I have to say I was a little surprised, albeit pleasantly. Egg cannot supply anything else, because there isn't anything else signed, so the agreement is unenforceable. Quite simple if you stick to your guns.

Originally Posted by cds

Hi Alis

sounds like good news for me to, I have an identical cca to the one above.

Where did you get the information from for your deductions?

there seems to be alot of comments on here regarding cc but egg loan agreements are few and far between.

best of luck

cds

[cds]

Sorry to keep going on about this but I've been pulling my hair out over this one for months.

Did the cca they sent you have your signature on?
was it on two sheets of paper supposed to be back and front?
so no total loan amount including interest is significant error?
have noticed right to cancel and cooling off period missing myself.

cds

[alisindebt]

Hi CDS

I know how you feel, I had similar problems, although only over a shorter period than you.

The problem seems to be in two parts. Firstly, most of the posts are about Egg credit cards, presumably because Egg gave them out to anyone, like confetti at a wedding, so there are obviously more people questioning those CCAs. Secondly, the posts are full of well-meaning, but ill informed people, claiming that this is a reason to enforce, that is a reason not to enforce, etc.

now I am not a Lawyer, but as I understand it some things would allow the CCA to be disputed and therefore any collections action or payments or interest would have to be frozen until the dispute is resolved. An example would be an unsigned agreement. This can apparently be resolved in court, assuming that all parties turn up. Something like no cooling off period would not on it's own be enough to warrant unenforecability.

An unenforecable agreement is one where even the court is not allowed to make changes. This would have to be something like terms and conditions missing from the body of the Contract, as is the case in mine. they can, apparently, be in a separate booklet, but this would also have to be signed by both parties and I certainly never signed a second document.

Like I say, I am no lawyer, so I contacted one who knows about such things. he said that in his opinion my CCA was unenforecable, mainly because there were no signed terms and conditions included in the agreement, which was only two pages long (unumbered) and because the total charge for credit is not on the agreement. Secondary to that, there was no mention of any colling off period.

he drafted me a letter to send to them, and they responded by positively accepting that it is not a true copy of the original and the account is suspended-yes, I have it in writing. They are hoping that Egg will come up with something, but there is anything for them to produce.

Originally Posted by cds

Sorry to keep going on about this but I've been pulling my hair out over this one for months.

Did the cca they sent you have your signature on?
was it on two sheets of paper supposed to be back and front?
so no total loan amount including interest is significant error?
have noticed right to cancel and cooling off period missing myself.

cds

[cds]

Originally Posted by alisindebt

Hi CDS

I know how you feel, I had similar problems, although only over a shorter period than you.

The problem seems to be in two parts. Firstly, most of the posts are about Egg credit cards, presumably because Egg gave them out to anyone, like confetti at a wedding, so there are obviously more people questioning those CCAs. Secondly, the posts are full of well-meaning, but ill informed people, claiming that this is a reason to enforce, that is a reason not to enforce, etc.

now I am not a Lawyer, but as I understand it some things would allow the CCA to be disputed and therefore any collections action or payments or interest would have to be frozen until the dispute is resolved. An example would be an unsigned agreement. This can apparently be resolved in court, assuming that all parties turn up. Something like no cooling off period would not on it's own be enough to warrant unenforecability.

An unenforecable agreement is one where even the court is not allowed to make changes. This would have to be something like terms and conditions missing from the body of the Contract, as is the case in mine. they can, apparently, be in a separate booklet, but this would also have to be signed by both parties and I certainly never signed a second document.

Like I say, I am no lawyer, so I contacted one who knows about such things. he said that in his opinion my CCA was unenforecable, mainly because there were no signed terms and conditions included in the agreement, which was only two pages long (unumbered) and because the total charge for credit is not on the agreement. Secondary to that, there was no mention of any colling off period.

he drafted me a letter to send to them, and they responded by positively accepting that it is not a true copy of the original and the account is suspended-yes, I have it in writing. They are hoping that Egg will come up with something, but there is anything for them to produce.

thanks again alis for taking the time to answer, all very useful.

cds

[citizenB]

http://www.consumeractiongroup.co.uk...ents-what.html

Have a read of the thread, linked above.

[lilly white]

HI I HOPE YOU ARE WELL

WAS THE LETTER SENT LIKE THIS THE MAIN TRUST WAS THERE WAS NO TOTAL CHARGE FOR CREDIT.

I HAVE JUST READ YOUR TREAD



Simple THANKS TO PT


Dear Sir or Madam,

In respect of the credit agreement you have disclosed on the XXXXXXX 2009

After seeking legal advice from a Consumer Credit Law specialist i can comment as follows.

The agreement you disclosed is improperly executed, it is not compliant primarily with s61(1) Consumer Credit Act 1974 and the consequences are that as it stands the agreement is unenforceable and requires an order of the court pursuant to section 65(1) CCA 1974 to be remedy this problem. you are invited to make such an application for the said order.

Upon such an application i will rely upon the following points

The agreement is a fixed sum credit agreement, the rate of interest under the agreement is fixed for the term of the loan, there are no items entering into the charge for credit which are likely to be subject to change or variation therefore the agreement requires a term stating the Total Charge for credit with or without a list of its constituent parts, the agreement does not contain this term and therefore breaches Regulation 2 and Schedule 1 Para 9 Consumer Credit Agreement Regulations 1983.

The agreement must as a consequence of para 9, also include a term stating the total amount payable, again this agreement does not contain such information and therefore the agreement also breaches Reg 2 and Schedule 1 para 11 Consumer Credit Agreement Regulations 1983 and therefore the agreement does not comply with the regulations made by the secretary of state under the powers given by s60(1) of the 1974 Act and accordingly the agreement doesn ot comply with the strict requirements of s61(1)(a) Consumer Credit Act nor did it comply with s61(1) (c) Consumer Credit Act 1974

These breachs are clearly prejudicial to me as on entering into the agreement i was not givne the informatiuon that the Consumer Credit Act required to be made clear, i was not aware of the true cost of borrowing.

I would further highlight that Lloyds TSB subscribes to the Banking Code, as a requiremento f the code, they are required to lend responsibly and they clearly have failed in their duty under the code

my contention is that the court should not make an enforcement order, my authority for this contention would primarily be the case of Wlaker v SPPL in the Chester High Court before HHJ Derek Halbert. however if the court were minded to make an order for enforcement my argument would fall directly upon Rank Xerox Finance Limited vs Hepple CCLR 1994 1 and in this case the court taking into account a single breach of schedule 1 Agrement Regs reduced the amount of debt from £5000 to £500 to compensate the debtor for the prejudice caused

in view of this and in view of the fact you require an order from the court to enforce this agreement as clearly set out within the act, and the House of Lords in Wilson and First County Trust 2003 UKHL 40, i would invite your proposals to settle my dispute. i would also advise that i am informed that , i am able to apply to the court to consider this matter pursuant to section 142(1) CCA 1974 if no suitable agreement can be met.

however i trust this will not be necessary

I look forward to your settlement proposals

regards

[alisindebt]

This si waht I used and it worked perfectly. Unbelievebaly they wrote back saying that they weere asking the OC i.e. Egg for the true copy i.e. they admitted in writing that it was not a true copy!

Account In Dispute

Dear Sir/Madam

Re: my request under s78 of the Consumer Credit Act 1974.

Thank you for your recent letter sent to me dated **DATE**, the contents of which are noted. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter, dated **DATE**. Upon receipt of the original request the specified account legally entered into disputed status.

My request remains outstanding. The supplied documentation does not constitute a true copy of a credit agreement and that which you sent doesn't even contain all the prescribed terms and is not 'properly executed'. The statements sent do not correspond to the amount stated in your earliest correspondence and therefore they do not satisfy the requirement to supply me with a statement of account.

As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

You had until **12 days DATE** to provide me with the true copy I requested. After that date you entered into default of my request. Whilst the account is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agencies (or any third party).

To register information with a credit reference agency, you must have written consent from the data subject to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office.

The time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 working days of a proper CCA request. If you fail to comply with a legitimate request the account enters a default situation. . You entered into a default on **12 Days DATE**

Therefore you have 7 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint, otherwise your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards. Any investigation undertaken by them may affect your ability to hold a consumer credit license in the future.

Take further note that continued telephone calls after the receipt of a request not to call may constitute a criminal offence under Section 127 of the Communications Act 2003.

Communicate in writing and ONLY in writing, your telephone calls will NOT be answered.

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.


I would appreciate your due diligence in this matter.

I look forward to your reply.

Yours faithfully

Originally Posted by lilly white

HI I HOPE YOU ARE WELL

WAS THE LETTER SENT LIKE THIS THE MAIN TRUST WAS THERE WAS NO TOTAL CHARGE FOR CREDIT.

I HAVE JUST READ YOUR TREAD



Simple THANKS TO PT


Dear Sir or Madam,

In respect of the credit agreement you have disclosed on the XXXXXXX 2009

After seeking legal advice from a Consumer Credit Law specialist i can comment as follows.

The agreement you disclosed is improperly executed, it is not compliant primarily with s61(1) Consumer Credit Act 1974 and the consequences are that as it stands the agreement is unenforceable and requires an order of the court pursuant to section 65(1) CCA 1974 to be remedy this problem. you are invited to make such an application for the said order.

Upon such an application i will rely upon the following points

The agreement is a fixed sum credit agreement, the rate of interest under the agreement is fixed for the term of the loan, there are no items entering into the charge for credit which are likely to be subject to change or variation therefore the agreement requires a term stating the Total Charge for credit with or without a list of its constituent parts, the agreement does not contain this term and therefore breaches Regulation 2 and Schedule 1 Para 9 Consumer Credit Agreement Regulations 1983.

The agreement must as a consequence of para 9, also include a term stating the total amount payable, again this agreement does not contain such information and therefore the agreement also breaches Reg 2 and Schedule 1 para 11 Consumer Credit Agreement Regulations 1983 and therefore the agreement does not comply with the regulations made by the secretary of state under the powers given by s60(1) of the 1974 Act and accordingly the agreement doesn ot comply with the strict requirements of s61(1)(a) Consumer Credit Act nor did it comply with s61(1) (c) Consumer Credit Act 1974

These breachs are clearly prejudicial to me as on entering into the agreement i was not givne the informatiuon that the Consumer Credit Act required to be made clear, i was not aware of the true cost of borrowing.

I would further highlight that Lloyds TSB subscribes to the Banking Code, as a requiremento f the code, they are required to lend responsibly and they clearly have failed in their duty under the code

my contention is that the court should not make an enforcement order, my authority for this contention would primarily be the case of Wlaker v SPPL in the Chester High Court before HHJ Derek Halbert. however if the court were minded to make an order for enforcement my argument would fall directly upon Rank Xerox Finance Limited vs Hepple CCLR 1994 1 and in this case the court taking into account a single breach of schedule 1 Agrement Regs reduced the amount of debt from £5000 to £500 to compensate the debtor for the prejudice caused

in view of this and in view of the fact you require an order from the court to enforce this agreement as clearly set out within the act, and the House of Lords in Wilson and First County Trust 2003 UKHL 40, i would invite your proposals to settle my dispute. i would also advise that i am informed that , i am able to apply to the court to consider this matter pursuant to section 142(1) CCA 1974 if no suitable agreement can be met.

however i trust this will not be necessary

I look forward to your settlement proposals

regards

[lilly white]

the simple letter give you the reference to the act.

So if they send the same again, used this letter, if you are happy with it.

the letter spells out what is wrong with the agreement

THE KILLER IS THERE NO TOTAL CHARGE FOR CREDIT,

SO IN LAYMAN TERMS YOU WHERE NOT MADE AWARE OF IT AT THE TIME OF SIGNING O HAPPY DAYS.

LILLY WHITE

[alisindebt]

Almost!

The main point is that they did not state the actula amount of crdeit charges (in my case), nor did they mention a cooling off period, but most imporatnatly, they are missing what are called "prescribed terms".

Like I said, I am no lawyer, but in layman's language, the two pages of the agreement that I received referred to other terms and conditions. These should be included in the Contract, or at least there should be a separate document SIGNED BY YOU AND THE CREDIT CARD COMPANY as part of the CCA. These were all missing in my case, and my lawyer has stated in no uncertain terms, this is an unenforceable CCA.

Originally Posted by lilly white

the simple letter give you the reference to the act.

So if they send the same again, used this letter, if you are happy with it.

the letter spells out what is wrong with the agreement

THE KILLER IS THERE NO TOTAL CHARGE FOR CREDIT,

SO IN LAYMAN TERMS YOU WHERE NOT MADE AWARE OF IT AT THE TIME OF SIGNING O HAPPY DAYS.

LILLY WHITE

[lilly white]

YES I SEE

YOU MAY WELL BE INTERESTED IN THIS COURT CASE JUST IN CASE YOU MISS
IT

KIND REGARDS


APPROVED JUDGMENT
__________
APPEARANCES:
For the Claimant: MISS GARDNER
For the Defendant: MR BERKLEY QC
__________
Transcribed from tape by
J L Harpham Limited
Official Court Reporters and Tape Transcribers
55 Queen Street
Sheffield S1 2DX
BANK OF SCOTLAND -v- ROBERT MITCHELL
1st June 2009
APPROVED JUDGMENT
JUDGE LANGAN:

1. I have to deal with an issue as to costs which has arisen on the informal discontinuance of an action.

2. The action was commenced on 21st May 2008. The claimant bank had, in December 2003, issued a credit card to the defendant, and the claim was for £15,417.23, being the amount said to be due on the defendant's account. Judgment in default, for a total sum of £15,727.23, was obtained on 4th July 2008. The defendant subsequently applied to have the judgment set
aside. That application came before District Judge Jordan on 29th January this year and was successful. The recitals to the District Judge's order say this:
"And upon the defendant's proceedings on the basis of a breach of
Section 61(1)(a) of the Consumer Credit Act, namely that the claimant
failed to comply with the requirements to give copies of all the
documents relevant to the agreement at the time of signing, and upon
the defendant contending that notwithstanding Section 65 of the
Consumer Credit Act 1974, Section 127(3) of the Act preventing the
enforcement".

After those recitals it is ordered the court sets judgment aside, and it is ordered that there be, "A determination of the issue set out above". Various procedural directions then follow.

3. What has been listed for trial today is, "The determination of issue", referred to in the order which I have just recited.

4. The agreement made in relation to the defendant's credit card was a regulated agreement within the Consumer Credit Act 1974. Section 61(1)(a) of that Act provides:

"A regulated agreement is not properly executed unless 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".

Having regard to the date of the agreement made in this case, which was prior to amendments made to the Act which took effect from 5th April 2007, the result of non compliance with Section 61(1)(a) would be that the credit card agreement would be unenforceable against the defendant, see Consumer Credit Act 1974 Section 127(3).

5. This morning I was informed by Miss Gardner, counsel for the bank, that the bank was withdrawing its claim against the defendant. This announcement has been accepted by Mr Berkley QC, who appears for the defendant, as equivalent to the service of a notice of discontinuance under the Civil Procedure Rules Part 38.3. By the Civil Procedure Rules Part 38.6.1:

"Unless the court orders otherwise, a claimant who discontinues is
liable for the costs which a defendant against whom the claimant
discontinues incurred, on or before the date on which notice of
discontinuance was served on the defendant".

Miss Gardner contends that the court should, "Order otherwise", and make no order for costs as between the parties. Mr Berkley contends that the presumption in CPR 38.1.6 should operate, and further that the order for costs to be made in favour of his client should be an order for assessment on the indemnity basis.

6. The thrust of Miss Gardner's submission is that the issue directed by the District Judge, and on which the evidence has been focussed, is whether the bank supplied the defendant at the time of signing the application form for credit with documents which contained all the terms of the agreement between them. I shall elaborate a little further on this. It has been the defendant's case that he was supplied with nothing more than the application form which he signed. It has been the bank's case that in accordance with the usual practice of the bank the defendant would have been, and must have been, supplied with other documents, including a pack which will have contained all the terms and conditions of the agreement made between the parties. Miss Gardner goes on to say that the defendant has at the last moment taken a new and radically different point, namely that the document signed by the defendant did not contain all the prescribed terms of the agreement. I must again elaborate on this. It is common ground that the only document signed by the defendant was the application form. It is also common ground that the application form did not, on its face, set out the prescribed terms of the agreement between the parties. The point which is treated by Miss Gardner as a
new point is dealt with in paragraphs 22 and 23 of Mr Berkley's written argument, and it will, I think, be more economical if I simply quote those two paragraphs in full rather than attempt,in my own words, to expand on them:

"The key words in Section 61(1)(a) are the reference to a document
itself containing all the prescribed terms, and conforming to the
regulations under Section 61. This language is clear and specific, and
ensures that mere reference to terms contained in another document
will not suffice. The document must contain the prescribed terms, just
as the signed document referred to in Section 127(3), which might save
the day, must however contain the prescribed terms. The construction
contended for by the defendant is entirely consistent with the language
of Section 61(1), and is also supported by Professor Good in his
encyclopaedic work - see Good & Consumer Credit Law and Practice
volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the
learned author draws a distinction between the language of paragraph
(a) contain and paragraph (b) embody. It is respectfully submitted that
the court should adopt the same reasoning in determining this issue in
favour of the defendant, irrespective of whether or not it finds that the
defendant was supplied with documents other than the credit
agreement itself".

7. In my judgment, the point with which I have just been dealing is not properly to be characterised as a new point on which the bank can present itself as being taken by surprise. I refer to four documents. First, on 3rd November 2008, when the defendant was acting as a litigant in person, in the request to have the default judgment set aside he said this:

"As the court is aware, in the absence of all the prescribed terms being
embodied, it will render a document unenforceable in court. These
terms must be contained within the agreement, and not in a separate
document headed 'Terms and Conditions', or words to that effect".
Secondly, on 18th February 2009, solicitors, who were by then acting for the defendant, sent to the solicitors acting for the bank a copy of what they called an expert report setting out the reasons why the agreement was in breach of Section 61(1)(a), and they went on:

"As you are aware it is our client's position that at the time he entered
into the agreement he was not provided with a copy of the terms and
conditions governing the agreement".

If one goes to the so called expert's report, one finds that it is in effect an opinion prepared by another firm of solicitors, and the opinion contains the following:

"Based on the information provided, it appears that the prescribed
terms and conditions were not included in the document signed by the
borrower. The agreement would appear to be in breach of the
regulations in that it does not contain within the signed agreement itself
all of the prescribed terms".

Thirdly, that point having been taken on behalf of the defendant, it was robustly rejected by the solicitors acting for the bank in their reply of 19th March 2009:

"Our client has sought counsel's opinion on this matter and her view is
that the agreement is compliant. We note that your client is arguing
that at the time of signing the agreement, the application for a credit
card, he was not provided with the actual terms and conditions which
were contained in a separate document to the application. Whilst our
client accepts that the application itself does not comply with the
requirements of the Consumer Credit Act 1974, and only becomes
compliant by reference to terms and conditions, there are references in
the agreement to the conditions in which it states that they are provided
in the Halifax credit card application pack".

Fourthly, going back in time a little, on 4th March 2009, in the defendant's witness statement made for the purpose of the trial of the issue, at the very beginning of the statement, in paragraph 3, he said this:

"It is my position that the agreement is not enforceable by the claimant
as it has failed to comply with its obligations under Section 61 of the
Consumer Credit Act 1974 by failing to include within the document
that I signed all the prescribed terms".

8. The absence of further reference to the point in the evidence is hardly surprising, since the point is one of law, on which there was no controversy as to the facts.

9. Miss Gardner has given no reason for the withdrawal of the action. She is in no way to be criticised for the omission. She is bound to act in accordance with her instructions, and those instructions were presumably to say no more than she has in fact said. But this does not prevent me from drawing what is in my judgment the only inference which can possibly be drawn from what has happened, which is that the bank realises that if the issue were to be
contested it would either lose on the issue or be at serious risk of losing. There may be hundreds of similar cases and the bank would plainly not wish other defaulting customers to get wind of an adverse decision on the fundamental point which is embodied in the quotation from Mr Berkley's written argument, which I have already set out.

10. Accordingly, I conclude, without hesitation, that there is no reason for displacing the presumption as to incidence of costs which is ordinarily applicable in a case of discontinuance. The bank will pay the defendant's costs of the claim, subject only to any existing order for costs in favour of the bank not being disturbed.

11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on the indemnity basis is appropriate.
__________

Yesterday, 10:36 #44 (permalink

PLEASE ENJOY ITS A GOOD READ

[BlueSquirrel]

Originally Posted by alisindebt

To update this thread, it turns out that the agreement is none enforceable and even CapQuest have confirmed that in writing. therefore they cannot legally chase this money, besides which I live abroad and so the county court system does not stretch this far!

Hello
I picked up on this post because I am abroad and a solicitor for Egg is threatening court action. Someone on another thread said they could maybe used substituted service. What can they do via county court if I am outside EU? This is also for an Egg Loan and they have never sent me a copy of my agreement