The only successful rollback of an Egg DN ever

[Mistermind]

80 weeks - 21 SEP 2007 - Yasmin - Default Notice removed by court Egg_Charges and Default

So far as I know, the above marathon thread (260 posts, 18 months, March 2006 through September 2007), is the only reported case of an Egg DN successfully rolled back by court action. For those with no appetite to read through 260 posts I have tasked myself for doing the same, and have attempted the following precis, with apologies to our longsuffering heroine Yasmin for errors and omissions.

March 2006 - Yasmin started a claim for refund of £220 charges, and for rollback of DN triggered mostly by unlawful charges (a copy of which DN she has never received before or since).

August 2006 - Small Claims court hearing, resulting in a further hearing.

September 2006 - another court hearing

November 2006 - Egg offered to settle out of court, which Yasmin accepted, understanding the offer to be for the whole of her two-part claim, namely charges refund plus DN rollback.

December 2006 - With Egg refunding charges but not rolling back DN, Yasmin applied in court to reinstate the DN part of her partially settled lawsuit.

March 2007 - court hearing for DN removal.

June 2007 - court hearing. The judge upheld Yasmin's understanding of the previously agreed terms of settlement, and pointed out to Yasmin that whereas a Small Claims Court judge was not empowered to rule on the legality of the DN, removal of same could be effected by an injunction on Egg to carry out the terms of the previously agreed settlement. Yasmin took the hint and applied for said injunction in a different court.

September 2007 - court hearing. With Yasmin exhausted but Egg a no-show the judge ruled that Egg must withdraw the DN -- the judge was not ruling that the DN was unlawful due to it being triggered in part by unlawful charges, he was ruling that DN rollback was part of a settlement previously agreed by Egg. This being the condition under which Yasmin withdrew her case, this condition had to be carried out.

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The most prescient posting during the course of this cause celebre was by BankFodder on 27th March 2006, forecasting the huge repercussions of a High Court battle over DN justification where default was wholly or partially triggered by unlawful charges. BankFodder remarked on one alternative route to achieve a DN rollback, where a claimant has tied her DN claim together with her charges reclaim in one bundle. When Egg made the complacent tactical mistake of settling the second claim out of court without explicitly rejecting the first claim, they subsequently found themselves bound by court injunction issued by a sympathetic judge to also carry out DN rollback-- the exact legal route successfully followed by Yasmin 18 months after BankFodder's post.

Overturning a DN on the grounds of unlawful charges looks like a court battle still to be fought, in the High Court I suspect.

Originally Posted by BankFodder

This hasn't been tried before so it is experimental.

Originally Posted by BankFodder

The idea is that when the bank defaults you, they do so because you have agreed in the contract that they may inform third parties of your account information.

My view is that there must also be an implied (unwritten term) that the information they release is true an accurate.

If they have defaulted you because of a debt which is made up partly of unlawful charges, then the default is not accurate and is therefore a breach of contract. It is this breach of contract which you include in your claim.

Now in Law, you can't just go suing people if you have suffered no damage. You have to show some kind of loss which the court will recognise. So what you have to do is to list out the ways in which the default has caused you inconvenience or actual loss of money.
For instance, if you have had to pay increased interest rates for loans because of your credit status. If you have regularly been turn down for credit and this has compromised your quality of life.

Once you have listed these things, we have to work out a reasonable figure to claim for each one. We have to keep it all to less than £5000 including the charges which you are claiming.

The downside of this experiment is that it may provoke the bank to defend the claim - so you have to be ready for it. You have to understand that the one thing that the bank really does not want is to have a judgment against them which shows that they have entered an incorrect entry into the credit register. If you succeeded in this claim then the way would be open to allege defamation against the bank and against the CRA.

A possible result is that the bank might just settle your whole claim without the risk of going to court.
This would mean that you had your money but you still had your default.

If you wanted to ramp it up even more, you could apply for an injunction to force the bank to remove the default.
This would get very exciting - but might risk the possibility of coming off the Small Claims track. however the issues are exactly the same as the charges and so technically there is no reason why it should be so.

Let me know what you fell about all of this, any questions and whether you wanted to go ahead. It is your own decision.

Originally Posted by Yasmin

….. I agreed a settlement figure and deal with Direct Legal Collections.

My understanding was that the account would be marked as settled, the account closed, and any adverse credit removed, including default notice.

This seemed to be a good deal, and on the evening before the hearing was due Egg dropped the counter claim and any further action. I went to court however, as advised, and agreed to abandon the claim providing Egg kept to the terms of the agreement.

Of course the rest is history. I applied to the court to re instate the case for the default removal only.

The Judge was extremely helpful this morning and advised me that the County Court did not have the jurisdiction to order the removal of a default notice.

Originally Posted by Yasmin

Just to give you an update.... I was in Court yesterday...... Anyway, my interpretation of the Agreement was that the account was "SETTLED" and therefore any default or adverse credit should be removed.

Originally Posted by Yasmin

The Judge also upheld this view yesterday, and asked eggs solicitor if this was normal practice for their client to take this course of action. He was outraged that they have behaved in such a manner.

It is not within his jurisdiction to order that the default should be removed. He has however suggested , a special performance injunction to enforce the terms of the compromised Agreement. The Judge has not made an order, but the case has now been adjourned and will remain open for 6 months, so that I may seek further advice re. the injunction. Needless to say, this is the action I will be taking!

And the happy ending:

Originally Posted by Yasmin

The hearing was on Wednesday. No one even bothered to show this time......RESULT the Judge has ordered Egg to remove all adverse credit I think he's secretly hoping they will oppose it so he can get them into the courtroom !! the Costs were limited to this hearing, but now the default is being removed...............wat ch this space

[steven4064]

Brilliant MisterMind - that is so helpful

[Mistermind]

Thanks Steven. Not sure if there has been any DN court actions reported in other forums, anyone know a link?

By definition card and bank account holders who received DN would have received Late Payment and/or Overlimit unlawful penalty charges previously. Even where the DN was triggered in part (not in whole) by penalty charges, the DN debit balance figure quoted would have been wrong and possibly defamatory for being inflated by unlawful charges.

If a precedent judgment were passed that such a DN had to be rescinded, the same fate could become applicable for EVERY DN issued in the UK over the past 6 years - millions :o . As BankFodder pointed out, there would also be the issue of possible substantial retrospective damage claims for those who demonstrably suffered from untrue and inaccurate DNs ruining their credit rating on Experian, Equifax etc.

For all these reasons cards and banks would defend against DN rollback tooth and nail fighting to the last ditch -- a very big action indeed in the High Court. DN rollback would also have to depend on a prior ruling whether penalty charges were unlawful at all, and what to do with retrospective reclaims. Here again we are back waiting for clarification from the Test Case verdict for banks, and for a charges Test Case still to be mounted for cards.

[Mistermind]

poochball -v- egg ***DEFAULT REMOVED***

Now 2 cases of Egg DN reported as removed.

[JudyJ]

i am a solicitor and considering issuing a claim against Egg in relation to PPI as they say I ticked the box on the online application and the T & C were online I note that phatram was successful but was it in relation to online application anyone which any advice to assist me would be appreciated I have corresponded with Wendy Schratz and I think she is nervous help need to help me and many others

[steven4064]

Hi Judy

Welcome to CAG.

Have you sent a request under s77 CCA 1974? You will get a copy of the online form yoiu filled in with the relevant boxes ticked/unticked. If that shows the PPI box ticked, you are going to find it difficult to prove that you didn't tick it. It is the place to start, though.

[phatram]

May I suggest the questions you are asking me in PM's, you ask in this thread, as I cannot and will not discuss anything about my case due to me signing the Tomlin order.

[noomill060]

Let us not forget that the FSA recently fined Egg for PPI mis-selling.

They therefore not only have "form", they've had their collar felt by the financial Sweeny.

Egg's 1967 MK2 Jag 4.2 smashes into a pile of cardboard boxes while the 1973 Ford Consul 2.5 FSA skids to a halt inches from the driver's door.

Regan and Carter of the FSA jump out, Browning 9mm pistols cocked and aimed at the occupants of the Jag.

"Oi! You're nicked my son!" barked DI Regan. "Cuff them and get them in the back of the Transit and dont be too gentle with them"

DC Carter whispers in their ear-"Oh dear, Humpty Dumpty is going have a great fall! Get in the back you slags. All the Queen's men want a word with you!!"

Roll credits.

Sweeny theme tune.

(Ok, I live in a parallel 1970s universe)

[Mistermind]

In short,

"You're nicked."