Well I am still waiting for Egg to remedy almost a year later.

I am of the opinion that once a company sends out a faulty DN then terminates the agreement that the faulty DN referred to then the alleged debtor should just bide their time and see Egg in court.

Hi

I agree, nothing else you can do unless you pay up of course.

Peter

IMO The reason there is no requirement within the act as to what form (i.e. prescribed form) this term takes is because such a term is a void term within the meaning of S173 of CCA, and as such would clearly not require a prescribed form.

 

 

Regards.

HI

I find it hard to understand why anyone would go to such elaborate lengths to incorrectly explain something that is really so simple.

Anything contained in a consumer credit agreement is valid as long as there is no provision in statute or common law that forbids it.

This is confirmed in many cases and if you just read section 173 it is blindingly obvious.

(1) A term contained in a regulated agreement or linked transaction, or in any other

agreement relating to an actual or prospective regulated agreement or linked transaction, is

void if, and to the extent that, it is inconsistent with a provision for the protection of the

debtor or hirer or his relative or any surety contained in this Act or in any regulation made

under this Act.

So if the contractual T and Cs said that the creditor wanted to charge £3 for a copy under section 77 he couldn’t because that would be contracting out of the statute(The CCA)

I started to look up examples of the use of section 173 but really all you have to do is put section 173 consumer credit act into your browser and you will have as much confirmation as you need.

Peter

Hi

Court order to set asside whilst default notice isd re presented

HI Accompanying letter to the previous post

Hi

Re the above two posts.

These were the result of a defective default notice being presented and the court staying the judgment in order for the corrected notice to be produced as can be seen.

The issue of the default termination did not of course arrise as per my previous posts on the subject.

Peter

To which the defendant says 'Get stuffed' and counter claims for the resultant unfair situation the clearly negligent creditor has created. As a direct result of creditor sloppiness (which they admit through the serving of a corrective notice during litigation no less) the debtor is now asked to rectify the compounded error by not paying the actual original arrears sum, but the new and inflated accrued sum of arrears. Ridiculous.

To which the defendant says 'Get stuffed' and counter claims for the resultant unfair situation the clearly negligent creditor has created. As a direct result of creditor sloppiness (which they admit through the serving of a corrective notice during litigation no less) the debtor is now asked to rectify the compounded error by not paying the actual original arrears sum, but the new and inflated accrued sum of arrears. Ridiculous.

As you say

Rediculous

Creditor pursuing a debt by using the prescribed legistlation in the prescribed manner, what ever next.

Any way fact is they represented and enforced as is their right in law.

Peter

HI

 

(1) A term contained in a regulated agreement or linked transaction, or in any other

agreement relating to an actual or prospective regulated agreement or linked transaction, is

void if, and to the extent that, it is inconsistent with a provision for the protection of the

debtor or hirer or his relative or any surety contained in this Act or in any regulation made

under this Act.]Peter[/font]

Peter,

IMO, a term in a credit card agreement which states that the creditor can end the agreement at any time- an example being condition 20.2 in an Egg Card Agreement- is a void term within the meaning of S173, in that it is inconsistent with a provision contained in CCA 1974.

The reasons for reaching this conclusion are as follows;

1.

The regulations governing the prescribed form of, and prescribed information to be provided in, Termination Notices in relation to the termination by the creditor of credit card agreements, are contained in the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

2.

Those Regulations cover every termination of every credit card agreement. If there were particular circumstances or forms of termination which were not included within the scope of the Regulations, then the Regulations, or an annex to the Regulations would expressly state what forms of termination, or which kind of agreements were exempted from the requirements prescribed by the Regulations. There are no such exemptions mentioned in the Act, or any annex to the Act, therefore it is very clear that the Regulations apply to every termination of every credit card agreement.

3.

Examination of the Regulations shows very clearly that there are three possible circumstances in which a creditor can become entitled to terminate a credit card agreement, namely as provided for under Sections 76, 87 and 98. Each of those circumstances requires it’s own specific form of termination notice, which is known as the prescribed form of termination notice. Those prescribed forms are set out in detail in schedules 1, 2 and 3 of the Regulations.

4.

Schedule 3 of the Regulations sets out, in precise detail, the form of notice to be given in non-default cases before a creditor can become entitled to terminate a regulated agreement. IMO The reference to “a” regulated agreement is intended to mean any non-default regulated agreement, therefore no regulated non-default agreement is exempted from the scope of the Regulations. Furthermore, although Schedule 3 relates to termination notices in relation to the termination of any non-default agreement, S98(2) of the Act provides that the only kind of non-default regulated agreement which a creditor can become entitled to terminated is a regulated agreement where a period for the duration of the agreement is specified in the agreement. It is clear from S98(2) that, as credit card agreements do not specify the duration of the agreement, non-default credit card agreements cannot be terminated by the creditor under S98. In light of that, it is clear that a creditor cannot insert a term stating that he can end the agreement at any time. Such a term is inconsistent with the provisions of schedule 3 of the Termination Regulations 1983 which, as explained above, applies to “a” ( i.e. every) non-default credit card agreement.

Regards.

As you say

Rediculous

Creditor pursuing a debt by using the prescribed legistlation in the prescribed manner, what ever next.

Any way fact is they represented and enforced as is their right in law.

Peter

So we can assume it's quite fair for the creditor to deprive the debtor of their rights during a default and instigate litigation where the creditor then realises they've messed up and produce a new DN. So far that's fair enough in principle.

So, to present an example of how this rapidly gets very messy we have our defendant who failed to remedy an arrears sum of £240 representing 3 months of arrears. Given the fact the creditor has up to 6 years to beat limitation lets presume 5 years have gone past and the actual arrears sum has grown.

Clearly the creditor wasn't able to terminate the account as the DN was found to be ineffectual, therefore meaning the arrears have continued to accrue for all of this time as the termination the creditor insisted had happened turns out to have been wrong.

Instead of the manageable sum of £240 the DN is now re-issued and the actual arrears now stand at £5040 not including the compounded interest on this steadily accruing balance. How can this be anything but unfair when it is the creditor who made a hams fist of it all?

Liabilities still exist sure but presenting this sum (which could easily happen by the time various DCA's have mucked about with it) is hardly 'correcting matters' in a manner that actually allows the debtor to respond in the manner parliament originally intended.

So we can assume it's quite fair for the creditor to deprive the debtor of their rights during a default and instigate litigation where the creditor then realises they've messed up and produce a new DN. So far that's fair enough in principle.

 

So, to present an example of how this rapidly gets very messy we have our defendant who failed to remedy an arrears sum of £240 representing 3 months of arrears. Given the fact the creditor has up to 6 years to beat limitation lets presume 5 years have gone past and the actual arrears sum has grown.

 

Clearly the creditor wasn't able to terminate the account as the DN was found to be ineffectual, therefore meaning the arrears have continued to accrue for all of this time as the termination the creditor insisted had happened turns out to have been wrong.

 

Instead of the manageable sum of £240 the DN is now re-issued and the actual arrears now stand at £5040 not including the compounded interest on this steadily accruing balance. How can this be anything but unfair when it is the creditor who made a hams fist of it all?

 

Liabilities still exist sure but presenting this sum (which could easily happen by the time various DCA's have mucked about with it) is hardly 'correcting matters' in a manner that actually allows the debtor to respond in the manner parliament originally intended.

HI

I am sure that if the debtor had any intention of actually paying the debt, they would have contacted the creditor or the court in the interim.

Of course interest will acrue if the debt is not repaid. If an agreement to make payment was for any reason refused, or if the amount on the notice was incorrect but the correct amount was paid this will be taken into consideration by the court. I dont suppose that this will be apropriate in this case.

I think in this case as in others people will think ,oh good i have a defectived notice i dont need to pay, well the news is, that i am affraid you do, always did.

Peter

HI

 

I am sure that if the debtor had any intention of actually paying the debt, they would have contacted the creditor or the court in the interim.

We will always disagree but I of course respect your angle and the banter is healthy enough. In response to the quote above though the debtor, being unsophisticated (for the most part) is entirely able to consider that the agreement is very much dead. It was promised to him quite clearly and is very likely to have been confirmed on multiple occasion with the demand of the entire balance.

The debtor therefore believes very reasonably that any offer to pay what might have exceeded the original default sum is essentially pointless when the creditor and his co-horts demand the entire balance.

Another consideration is that in many cases with increasingly aggressive debt collection practices (as they are let's face it entirely unregulated) the DCA or creditor is unwilling to enter into any kind of payment plan, believing (wrongly it turns out) that they are in fact entitled to demand the whole lot as the DN (if that's the route of termination they have chosen) was invalid. Further, what creditor or DCA is going to use litigation merely to secure a payment plan when they can instead look at charging orders and all manner of other options including attachment of earnings orders?

It's really not that straight forward when you look at the actions of the creditor but we will always disagree on this I feel. I'll leave it there.

HI

I find it hard to understand why anyone would go to such elaborate lengths to incorrectly explain something that is really so simple.

Anything contained in a consumer credit agreement is valid as long as there is no provision in statute or common law that forbids it.

This is confirmed in many cases and if you just read section 173 it is blindingly obvious.

(1) A term contained in a regulated agreement or linked transaction, or in any other

agreement relating to an actual or prospective regulated agreement or linked transaction, is

void if, and to the extent that, it is inconsistent with a provision for the protection of the

debtor or hirer or his relative or any surety contained in this Act or in any regulation made

under this Act.

So if the contractual T and Cs said that the creditor wanted to charge £3 for a copy under section 77 he couldn’t because that would be contracting out of the statute(The CCA)

I started to look up examples of the use of section 173 but really all you have to do is put section 173 consumer credit act into your browser and you will have as much confirmation as you need.

 

Peter

If you are going to talk down to people at least get things correct.

The section clearly states that it is void if it is inconsistent with a provision. That is not the same as saying something is valid as long as there is no provision in statute which forbids it. You seem to be confused on this matter. edited

HI

As far as the act is concrened the mention in section 173 of the term being void has the same effect within a regualted agreeement as if it had said the term applies if it is not contradicted in the statute.

As far as my spelling is concerned your right it stinks.

What do you do

As far as me taking down to people , i say i could be worse i could be one of those irritating little twerps that goes around poiniting out spelling mistakes.

Peter

HI

As far as the act is concrened the mention in section 173 of the term being void has the same effect within a regualted agreeement as if it had said the term applies if it is not contradicted in the statute.

Peter,

You are absolutely correct. - i.e. a term applies if it is not contradicted in the statute.

For example, term 20.2 in the Egg card agreement is such a term. That is to say, term 20.2 is term which is void for the reason that it is contradicted in the statute, the statute in this case being The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

The contradiction is between Egg's Term 20.2 stating that "We can end this agreement at any time", and Schedule 3 of the Termination Notice Regulations which prescribes the form and content of termination notices which the creditor must give to the debtor if the creditor wishes to terminate a non-default credit card agreement.

In other words, Egg cannot terminate an agreement "at any time", they must comply with the required notice in schedule 3 of the Regs. - which can only be used in specified circumstances, the most important of those circumstances - for credit card holders at least - is that a schedule 3 termination notice cannot be used for non-default credit card terminations (see S98(1) of CCA).

It is absolutely clear from reading the statutes that Egg term 20.2 is a void term.

Regards.

toymaker,

People have been telling you for a long time now that you are totally wrong in your opinion.

Do you just carry on to try and get a response from people?

Also, as I have said a number of times, just tell us the date that you are in court and I will come along and see how you get on with this wonderful defence of yours.

But both of us know that you never will let anyone know when your court case is as you know that you have no real prospect of success.

toymaker,

 

People have been telling you for a long time now that you are totally wrong in your opinion.

 

Do you just carry on to try and get a response from people?

 

Also, as I have said a number of times, just tell us the date that you are in court and I will come along and see how you get on with this wonderful defence of yours.

 

But both of us know that you never will let anyone know when your court case is as you know that you have no real prospect of success.

Hi

Yes that is one case i wouldnt want to miss.

Peter

Hi

 

Yes that is one case i wouldnt want to miss.

 

Peter

Peter,

It's very easy isn't, to say I am wrong, - but I do notice that those Caggers who say this are unable to clearly explain their reasons for saying my point ofr view is wrong.

I might be wrong, but then so might you be wrong (you and Egg that is).

All you have to do is carefully read the statutes.

regards.

PS. - try telling the OFT that a credit card provider can terminate an agreement whenever he wants.!

Peter,

It's very easy isn't, to say I am wrong, - but I do notice that those Caggers who say this are unable to clearly explain their reasons for saying my point ofr view is wrong.

I might be wrong, but then so might you be wrong (you and Egg that is).

 

All you have to do is carefully read the statutes.

 

regards.

PS. - try telling the OFT that a credit card provider can terminate an agreement whenever he wants.!

Toymaker you have a whole thread of me showing you proof of why you are wrong . You have many other peoples threads showing you reasons why you are wrong. We have shown you statute that shows you why you are wrong, we have shown you case law that shows you why you are wrong , we have tried logic.

There is nothing else we can show you.

If we pointed at the sky and said this is blue you would say no it is not, how could we prove otherwise fact is you are wrong.

Peter

Toymaker you have a whole thread of me showing you proof of why you are wrong . You have many other peoples threads showing you reasons why you are wrong. We have shown you statute that shows you why you are wrong, we have shown you case law that shows you why you are wrong , we have tried logic.

There is nothing else we can show you.

If we pointed at the sky and said this is blue you would say no it is not, how could we prove otherwise fact is you are wrong.

Peter

As I said,- try telling that to the OFT.

As I said,- try telling that to the OFT.

HI

I am begining to worry about you.

You know full well that there is a section in the OFT 144 post contractural information guidlines that explicitly states, open ended accounts can be terminated without notice by the creditor, as i have shown it you on more than one occaision, why are you trying to get me to show it you again. If you want to see it, it is on your thread as you well know. i think Niklea is right you have a problem

I will not be responding to any more of your posts

Peter

HI

I am begining to worry about you.

You know full well that there is a section in the OFT 144 post contractural information guidlines that explicitly states, open ended accounts can be terminated without notice by the creditor, as i have shown it you on more than one occaision, why are you trying to get me to show it you again. If you want to see it, it is on your thread as you well know. i think Niklea is right you have a problem

 

I will not be responding to any more of your posts

 

Peter

Peter,

I am really shocked at your serious misinterpretation of the OFT guidance on Termination off agreements.

The relevant bits you referred to are set out below.

You appear to have made the mistake of thinking that because the guidance (at 6.9) states that termination notices are not needed where an agreement is for an indefinite duration, that must mean it is ok for a creditor to just go ahead and terminate those type of agreements whenevery he feels like, without needing to send a termination notice. In fact, "not needed" simply means that, as such agreements cannot be terminated by the creditor, if they are not in default, there is obviously no need for termination notices to be prescribed and complied with.

That this is the case is confirmed by para 6.6, which states that the 1974 Act requires service of a notice in a specified form if the creditor wishes to terminate a reguilated agreement, in non-default cases.

It could not be clearer, if you read it very carefully.

Regards.

Enforcement and termination notices

6.6 The 1974 Act also requires service of a notice in a specified form if the

creditor wishes to terminate a regulated agreement in cases other than involving breach by the debtor.

6.8 Under section 98 of the 1974 Act, the creditor is not entitled to

terminate a regulated agreement (in non-default cases) unless he

provides the debtor with a notice of his intention to terminate at least

seven days before taking such action.

6.9 Enforcement and termination notices are not needed where an

agreement is for an indefinite duration or where notice is served at the

end of the period specified in the agreement for its duration.

6.10 The information and forms of wording required in

termination notices are laid down in the 1983 regulations

any clause that allows a creditor to end an agreement whenever they feel like it, undermines the requirement in the CCA to supply a default notice and give time for rectification.

the fact that it is in the agreement doesn't matter. the agreement is their 'wish list' like any set of standard T&Cs businesses use. it doesn't mean its legitimate.

it also doesn't matter that the creditor says such a 'whenever we like' clause isn't used against accounts in default, the fact that they could, or that the lender would reasonably assume the clause could/would be used, tips the balance of power to the creditor - why have a clause that won't be used? As the CCA was written to 'regulate creditors and protect lenders' such an open clause is not compatible with the CCA and shouldn't be there.

there is no provision in the CCA for non-default accounts to be terminated. whether that was by accident or design we can't know., but that does not mean that a open dream wish clause is compatible with regulated agreements

as for courts and judges, there are plenty of cockeyed decisions made in court every day, I know of a case in family court where a judge took a young child away from its unemployed father and gave residence to its drug abusing prostitute mother because he 'didn't have enough money to care for it properly'. Social services took the child into care within a week when neighbour reported it crying continuously - the mother had gone 'working' leaving the child alone, and then gone to a friends to get high. The fact that the child had been with the father for 6 months since they separated (because she started using drugs) without incident wasn't considered relevant by the judge.

So, in essence, isolated snipets of what random judges have decided is not very reliable as to what should happen. One of the problems is that few people get legal aid now, and have to do it themselves, often, they don't prepare enough, and don't actually argue their case properly.

any clause that allows a creditor to end an agreement whenever they feel like it, undermines the requirement in the CCA to supply a default notice and give time for rectification.

 

the fact that it is in the agreement doesn't matter. the agreement is their 'wish list' like any set of standard T&Cs businesses use. it doesn't mean its legitimate.

 

it also doesn't matter that the creditor says such a 'whenever we like' clause isn't used against accounts in default, the fact that they could, or that the lender would reasonably assume the clause could/would be used, tips the balance of power to the creditor - why have a clause that won't be used? As the CCA was written to 'regulate creditors and protect lenders' such an open clause is not compatible with the CCA and shouldn't be there.

 

there is no provision in the CCA for non-default accounts to be terminated. whether that was by accident or design we can't know., but that does not mean that a open dream wish clause is compatible with regulated agreements

Thank you for that clear and concise posting. Your summary of the situation regarding termination by a creditor of non-default credit card agreements is spot on, and provides extremely useful information to CAGGERS who are up against bullying creditors and debt collectors.

toymaker,

 

People have been telling you for a long time now that you are totally wrong in your opinion.

 

Do you just carry on to try and get a response from people?

 

Also, as I have said a number of times, just tell us the date that you are in court and I will come along and see how you get on with this wonderful defence of yours.

 

But both of us know that you never will let anyone know when your court case is as you know that you have no real prospect of success.

Hello Nicklea,

You might find it useful to read cecilrhodes post 72. It sets out the position re termination of credit card agreements very accurately.

My defence is based upon the very same points outlined in post 72.

regards.

Hello Nicklea,

 

You might find it useful to read cecilrhodes post 72. It sets out the position re termination of credit card agreements very accurately.

My defence is based upon the very same points outlined in post 72.

 

 

regards.

Hi

Why dont the both of you start your own thread where you can develop your agument?

Peter