Egg No Agreement Default Removal

[wednesday1867]

Well thats that bit done, the cage is definately rattled

Ill be working on the POCS in stages, so if anyone can offer assistance and point if ive done anything wrong, id very much appreciate it.

Ill get some sorted in the next week or so.

Thanks

[wednesday1867]

Update and POC's.

Ive not had a reply as of yet to my LBA, which runs out on Wednesday.

I will be filing at court Thursday or Friday, this is the best way to go?

These are the POC's ive come up with for starters, would appreciate some idea of if they are ok, or how they could be improved?

Particulars Of Claim

1. I, XXXXXX hereafter referred to as the Claimant, and litigant in person do hereby make this statement and Particulars of Claim from my own knowledge and experience.


2. The Claimant submits the following that under The Consumer Credit Act 1974, Amended 2006 that;

3. On XX XXXX 2007, he made a request pursuant to section.77 of the Consumer Credit Act 1974, (hereafter referred to as the CCA ) to be provided with a copy of the original executed credit agreement to which the alleged debt referred . The request was sent via Royal Mail with recorded delivery, enclosing a statutory fee of £1.00.

Under the Consumer Credit Regulations 1983 (2) (Prescribed Periods for Giving Information) The Defendant had 12 working days from receipt of the request to comply with that request. Failure to comply with a section 78 request by a creditor (The Defendant) by 11th July 2007 would result in default by the creditor.

Section 78. states—(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of 15 new pence ( now £1), shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—
(a) the state of the account, and
(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and
(c) the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

4. The claimant claims that the documents received in accoradance with the S77 request are not copes of an executed agreement as they are un signed. As per Section 61 of the CCA

61

.—(1) A regulated agreement is not properly executed unless
(a) a document in the prescribed form itself containing all the prescribed terms
and conforming to regulations under section 60(1) is signed in the prescribed

manner both by the debtor or hirer and by or on behalf of the creditor or owner.

5. The claimant claims that the defendant would need a court order to enforce the alleged agreement as per S65 of the CCA

6.The claimant claims that a court would be unable to issue a court order to enforce the agreement, as per S127(3) CCA

127.—(3) The court shall not make an enforcement order under section 65(1)

61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

7. The claimant claims as of XX XXX 2007, the alleged account entered legal default and is unable to enforce the agreement and as it stands there is no agreement. S78(6)(a)


78-(6) If the creditor under an agreement fails to comply with subsection (1)—
(a) he is not entitled, while the default continues, to enforce the agreement

8.The defendant pursued the disputed account and in XXXXX 2008, issued a Default Notice with the three main Credit Reference Agencies.

9.The claimant claims that the defendants rights to discuss the claimants private data with any third parties ended on XXX XXXX 2007, up until such time they provide a document that complies with S78 CCA.

10.The claimant claims that as there is no enforceable agreement, all history, adverse markers and the Default Notice related to the alleged debt should be removed and deleted from all third parties including Credit Reference Agencies, in accordance with the Data Protection Act 1998 Section 14.

11. The claimant claims the wrongful addition of the Default Notice to the claimants credit file, has had an adverse effect on there ability to gain credit, so claims compensation under S13 of the Data Protection Act 1998, up to, but not to exceed £300

Any help as ive said would be very much apreciated


Thanks

[steven4064]

THis is a bit of a muddle wednesday. Firstly, I think the s77 in the first line of paragraph 3 should be s78 - if it is a fixed loan it is s77, credit card is s78.

More importantly, they don't have to send a signed agreement to comply with s78 (or 77) - the 1983 regulations specifically say they can send a doncument with all personal details (including signature) removed. Paragraph 4 is correct (except for the s77 - should be s78?) but the logic, ending with paragraph 7 is not correct.

s78(1) (77(1) for fixed loan) says they must supply certain information in response to a request under that section by you. If they don't comply, then s78(6) (s77(4) for fixed loan) comes into play and they must not enforce the loan. In your case, however, it looks like they have complied with your CCA request.

However, that is only part of the story. As it is not signed (and probably there are other things wrong with it), it is not properly executed as defined in s61.

That means that it can only be enforced by a court - that's what s65 says.

Section 127 limits the court's authority to enforce agreements under s65 to documents 'signed by the debtor and containing with in itself the prescribed terms'. In your case, the document is not signed by you. Therefore, it is not properly executed and it cannot be enforced under s65 because it does not fall within the limits set out in s127.

Does that make things clearer?

[wednesday1867]

Originally Posted by steven4064

Does that make things clearer?

Not really

It is for a loan, not a credit card, i changed my Egg CC to an Egg Loan, to get some headway into it. I have a screen print from Egg showing my online application, but they seem to have sent me an online agreement, i have evidence disagreeing with the fact that its an online agreement, so i don't know where that came, or even if they just made it up

All i want is removal of the default notice, is court the only or best option?

When i get a bit more time, ill have another go......

[steven4064]

They will not willingly remove the default - you will have to force them. AFAIK court is the only way to do that, normally linked to something else (eg unlawful charges) but I think it can be done otherwise.

The argument is as above:

As it is not signed it is not properly executed as defined in s61 of the CCA 1974.

Section 65 says, because it is not properly executed, it can only be enforced by a court.

However, section 127 limits the court's authority to enforce agreements under s65 to documents 'signed by the debtor and containing with in itself the prescribed terms'. In your case, the document is not signed by you. Therefore, it is not properly executed and it cannot be enforced under s65 because it does not fall within the limits set out in s127.

But, you say it's an online application. If it was entered into after April 2004 then it doesn't have to be signed to be properly executed. If they have sent you a copy with a box ticked that says you agree to the terms, then that counts as properly executed and the above argument does not apply.

[wednesday1867]

Originally Posted by steven4064

But, you say it's an online application. If it was entered into after April 2004 then it doesn't have to be signed to be properly executed. If they have sent you a copy with a box ticked that says you agree to the terms, then that counts as properly executed and the above argument does not apply.

I dont say its an online agreement, the third document they sent looks like an online agreement. I believe i did it over the phone and I have an email from Egg asking me to send back the signed agreement so they can complete my application, also when i go onto Eggs secure site, its says i do not have any on lne agreements. So i think its something they are trying to pass off as my agreement, why else ask for my signed agreement back?

The screenprints i have, are of their system, they could of filled them in while i was on the phone, i only have them from a previous complaint about PPI. It does say application method of internet, but then why do they need a my signed agreement to be sent back to complete the application?

I was trying to show in the pocs, that if they counter claim to enforce the agreement, that they cant cos of the sections ive pointed out.

[wednesday1867]

Also if the online agreement they sent me is legit, surely it would of been rolled out everytime i asked each dca for my agreement and the last one would of started the court action against me? Seeing is ats been at least a year since my last payment to them

[steven4064]

Just checking.

Although it was done over the phone, it looks like it is effectively a 'paper' agreement and so they should be able to provide a proper copy.

Have you posted what they sent or could you if you haven't?

[wednesday1867]

Originally Posted by steven4064

Have you posted what they sent or could you if you haven't?

Yep, ive posted them in the order i received them on page 2 of this thread, posts 27,28 and 29

[steven4064]

The loan agreement in posts #29 and #30 looks properly executed to me as it is after April 2004 and conforms to the Consumer Credit (Electronic Communications) Regulations 2004.

[wednesday1867]

Thats what i dont understand, if thats the case, why did i get this email

Thank you for applying for an Egg Loan. We recently sent you a Loan Agreement. If you haven't already done so, please sign and return it as soon as you can, to complete your application.

Returning your Egg Loan Agreement
There's no time like the present, so why not sign and return your Loan Agreement now? Alternatively, if you've lost your Agreement and want a new one or you need any help with anything, then just give us a call on 08456

Also a DCA replied to me after several months saying Egg havent been able to supply the document. Also on Eggs secure site, there is an option to check any online agreements, i go on there and it says i have no on line agreements.

Its not uncommon for creditors to manufacture documents is it?

Ere dear just dont know which way to go with this..............

Steven, also if you dont mind, ive got some pocs for Cap One, its on Cap One forum, could do with an expert eye checking them over.

Thanks

[steven4064]

I don't know why they sent that e-mail or why there are no nlione docs. However, they claimed (post #23 ish) that the agreement was started on the phone and continued on the internet. The agreement in posts #29 an d#30 certainly supports that. If that is what was sent in response to a s77 request than I would say that they have provided an enforceable agreement and are within their rights to collect and issue a default.