Thanks, good idea.

Regarding Section 85, I want to crank up the pressure on several credit card providers by sending them a S85 default notice. However, the cards I have were all reissued quite recently (within the last 12 months or so). The accounts have been open for between 6 and 9 years, so there must have been an earlier reissue of these cards. How do I go about finding out when the first card reissue was? I am guessing that this would be the date the default was effective from. I have done the SAR/DPA requests re: charges but this doesn't state when cards were reissued. Any ideas?

They are already in default!

Yes, but unless they can provide the original document to prove we ever agreed that they could vary the terms and conditions, they couldn't claim that the new style agreement was binding. Also, if the old document was unenforceable for any reason, then they couldn't enforce the right to introduce the changes. The only way they could hold us to the new agreement is if the old one was provided and was spot on in terms of form and signature. If this is the case, then we have no leg to stand on with them anyway, so bringing in the new agreement is irrelevant.

Well, they can introduce all the new style agreements they like, but unless we sign it then it still won't be enforceable will it?

The CCA (Sections 77/78 ) states that if they default on providing the required agreement documents, then they are not entitled to enforce the agreement. As one of the terms of the agreement is interest, it follws that they are not entitled to enforce the right to apply interest, therefore they must stop.

ICO = Information Commisioner's Office

No, if no defence is entered they will win. It is vital to enter court to enter the defence, and then the financial co. would have to produce the documentation.

More likely they don't attend court and the CCJ is awarded by default.

But to prove non-payment of an amount under an agreement, it follows that they would have to demonstrate that they had a valid agreement to begin with. A financial company couldn't just take you to court and say you hadn't paid, they would have to prove there was a reason you had to pay them in the first place. Hence the reason an unsigned agreement can't be enforced. If it was a simple matter of them proving you hadn't made a payment, then whether you had signed the agreement would be irrelevant.

Right, so if Egg or anyone else take us to court, it is up to them to prove we received the whole of the credit agreements (and that these were properly constructed etc), it's not up to us as defendents to prove anything

Yes.

I'll bear it in mind, thanks. I would say, though, that they have sent me the two page doc in response to the S78. I have sent a letter saying there is no default information on the agreement, which should be there. In effect, this gives them a chance to rectify this and send me any missing bits. If they don't, I'd say they don't have it. If they don't have it a judge will, on the balance of probability, assume they didn't have it in the first place. I mean, why save half of the agreement and not all?

Just guessing here but probably yes after the Electronic Comms order.

Well, they could, but if we go down that line then all S77/78 requests are useless if we assume the banks can just say they sent things they didn't.

I can show what they have sent me as a true copy of my executed credit agreement. Those parts aren't there. Their response to my Section 78 response is lawfully required to be a full response. If this is what they have sent me as a full response, then that's that. To look at it any other way would mean it wouldn't matter whether there was an agreement or not. They would just have to say they sent it and we would have to prove they didn't, which we never could. I don't see how they could produce any extra bits in court and then be able to justify why they didn't send them in response to my S78 request.

Interesting. There is a reference number on the page with prescribed terms, matching the reference number on the copy of the direct debit mandate they sent me. There is no corresponding reference number on the signature page, but maybe this is because you said it was the reverse of a page. Is there a reference number on your signature page Pam?

I don't know that I would have to prove I didn't receive it. They have sent me only the stuff I posted about as an agreement. I can't imagine they would be allowed to say "Well, this is all we have of his agreement, but we think we sent the other pages as well". If what they have sent me is their response to my Section 78 request, then this is what they are relying on as my agreement. Therefore, the default charges are nowhere on my agreement = unenforceable without a court order. I have no intention of trying to dodge what I owe, but will not pay over the odds in interest rate for the application of an agreement term I never actually agreed to.

Not sure if they would be completely unenforceable as, as Pam says, the actual CCA 1974 only lists those that Pam has posted as 'prescribed terms'. It's all a bit of a grey area, but is certainly a useful bargaining tool with Egg.

Hmm, but is then pushed on this non-compliance, they could just copy any old page 2 and 3 and send them stating they are part of the agreement. Is there anything that links those pages together in yours?

That's how I see it Uni. FORM AND CONTENT OF NON-CANCELLABLE AGREEMENTS To be properly executed, and so legally enforceable without a court order an agreement must be recorded in a document which embodies all its terms, is signed by both trader and customer, and is readily legible when given or sent to the customer for signature. (But see page 30 for the powers of the court.) The terms of the agreement which must be recorded in writing do not include implied terms. Implied terms are those which are provided by law and cannot be avoided, but are not usually recorded in an agreement. For example, in contracts for the sale of goods, implied terms include the assumption that the goods correspond to their description, are of merchantable quality, fit for the purpose for which the customer bought them, and correspond to any sample shown to the customer. In the case of contracts for the sale of land or goods, the seller’s implied undertakings include the assumption that he passes on good title and that the buyer will enjoy quiet possession. Some terms must always be contained in the signature document as described under the heading ‘What the agreement must contain’. But any other term of the agreement can be recorded either in the signature document itself or another document referred to in it. The default charges are one of these terms that must be in the signature document. That means these Egg agreements are not enforceable without a court order. Now, given that Egg want to raise my interest rate by 5% based on the fact I have incurred overlimit charges, and based on the fact that I have never gone overlimit by anywhere near the amount of the charges they have applied, I consider this extremely relevant. My account went overlimit due to charges. These charges were never specified in the agreement, and should have been. This has led to a direct decision to increase my rate, causing me actual loss. Therefore, it's not enough that the charges are reclaimable, because the effect of the charges will be ongoing through the lifetime of the agreement, and therefore will cause me ongoing loss. I'm even thinking that this may come under the UTCCRs based on their behaviour and how they are trying to enrich themselves by applying a further penalty (interest rate) based on their own unlawful activity.

I agree that the OFT guidance seems clear that the default charges need to be on the signature document, and the lack of this may make the agreement uneforceable. I would say this is particularly relevant where they have applied these charges as they are actually applying a term that wasn't in the agreement. That would be like applying interest to an interest free loan. Egg are the only ones who have actually yet supplied me with a copy of the credit agreement, all the others haven't sent anything yet and are now in default (no payments from me until they comply with my request). Looks like they may not have got things as watertight as they'd like to think.

This is where Zubo posted up his agreement, but mine looks exactly the same: Egg agreement

Yes Pam, it sounds like that one would be enforceable. That's a different type of agreement to what me and Zubo have, though, and these lack any mention of the default charges. Yours was 2005, Zubo's 2004 and mine 1999. I wonder if Egg realised their mistake and started issuing new agreements?

Not so. Section 3.1 states: 3.1 Before you become a customer, we will: • give you clear information explaining the key features of the services and products you tell us you are interested in; • assess whether your needs are suited to a basic bank account (if we offer one) and if they are we will offer you this product; • offer you a basic bank account if you specifically ask, and meet the qualifying conditions for one; • give you information on a single product or service, if you have already made up your mind; and • tell you what information we need from you to prove your identity (by law, we have to check your identity So they still apply criteria and they can still refuse.