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Everything posted by basa48

  1. Not true The original creditor can sue. If he employs a DCA the DCA can sue ON BEHALF of and in conjunction with the OC. If the debt is sold by way of absolute assignment (that is the new owner acquires all the rights and duties of the OC) the the new owner can sue directly in his own right.
  2. I think Peter is referring to a new European directive or some such legislation, not an actual court case. PS: I think Peter is referring to BAILLI, the case law and legislation information website. But without a title of the new paper it will be all but impossible to find.
  3. I actually think that all things done in relation to a regulated agreement must be done within the provisions of the regulating Act. I do not believe there is scope for any action outside of the regulations. Given that the Act is silent on terminating non default running credit accounts. I think it correct to interpret that as being that a creditor cannot terminate such an account. That is why the Act specifically allows a creditor to defer or restrict the account. This is the action Egg or any other creditors should take if they wish to stop the debtor borrowing more money. There is absolutely no need for any creditor to terminate except in a breach situation. The provisions under a breach are so a creditor can take action to recover the whole debt. In a non breach situation there is no need for the creditor to pursue the whole debt as he is guaranteed its eventual return under the agreed repayment schedule. Given the above it is my contention that the termination by Egg is ineffective, but the debtor was not to know this. I maintain this situation could be therefore argued as unfair under s140A.
  4. Yep I know that. I don't remember saying any different. Who said that? It is precisely the statute that prevents a common law remedy or action, i.e. a termination of the contract under common law. I dunno about any of that, but I do know that the Act specifically prevents actions and remedies that are not provided for within the Act Your reference to UKHL40 is totally incorrect, my quote did not come from there Termination is not a legal remedy true but it is an action outside the provisions of the Act and therefore has no legal effect. The creditor cannot terminate – end of. Also there is no remedy available to a debtor when a creditor terminates outside the Act as s170 forbids it. Creditors and debtors under a regulated agreement can only legally act within the Act. They can take any other actions they like that are not provided for under the Act but those actions will be ineffective. e.g they can terminate but the termination will not be effective in law.
  5. No Toymaker never quoted this and it it is an observation from a recent High Court ruling yet to be published.
  6. There also may some strength in the feeling promoted by the courts that the ONLY legislation allowed for regulated agreements is the 1974 Act. As termination for convenience clauses are not catered for in the Act and are obviously unfair on the debtor I think the only way a creditor can prevent further borrowing would be by deferment or restriction which is allowed, not termination.
  7. Actually Toymaker may have a point:
  8. I wrote such a letter in April '09. In December 09 they replied by simply quoting clause 20.2. The last I heard from Egg or their agencies was March 2010.
  9. Ah now it becomes clear(er)! You are saying that because it isn't specified in the Act & Regs, Egg can never terminate a non defaulted account. And because the whole agreement is bound under the CCA they cannot rely on the termination clause in the T&Cs. I hope that is right.
  10. I just can't get my head past that schedule 3 is related to s98(1) which includes the term: Subsection (1) applies only where— (a) a period for the duration of the agreement is specified in the agreement, and (b) that period has not ended when the creditor or owner does an act mentioned in subsection (1), But I see this is going nowhere and its no-ones fault.
  11. Why not if it is the T&Cs you agreed to? I do agree with this !!
  12. Indeed - in fact it is part of the CPR Standard Directions that the parties to a dispute should make attempts to settle without involving the courts.
  13. Whilst I sort of agree with what you say, I would comment as follows: Correct Agreed I know of no other form. Not sure that every form must be in a form prescribed by the Act/Regs. Surely they can communicate in any reasonable manner? Not sure. Cannot the common laws of contract come into play in a situation not covered in the CCA ? (this is a rhetorical question - not necessarily me stating fact). I don't necessarily - just posing a question. Obviously not every form as Egg's termination highlights! But apparently not this circumstance? Why not if it is the T&Cs you agreed to? But the Act doesn't prohibit Egg's action. It just doesn't mention it. I stress I am not disagreeing with you. I am just exploring every argument a creditor could use. This is IMO a very gray area which I think everyone even Egg is unsure of. If this ever gets into court I feel it will go to the top. My fear is a stitch up with someone deliberately posing this in court with a very poor argument in order to win a favourable result for Egg.
  14. I am confused! You say "Schedule 3 relates to fixed term agreements - therefore cannot be used to terminate running account credit agreements" then say "it is the compulsory, and only, form of termination notice for non default regulated agreements". Then you say "there is no form [in the Act] for termination by the creditor of a non-default regulated agreement" but observe "every transaction - including termination - is regulated by the Act" ??? There is something wrong here. Either the Act and Regs apply or something else must apply. If the Act doesn't include for it does not mean it can't be done - it has been done!!
  15. Schedule 3 relates to notices given under s98(1) which applies only where— (a) a period for the duration of the agreement is specified in the agreement, and (b) that period has not ended when the creditor or owner does an act mentioned in subsection (1), i.e. fixed term loans where the loan period has not yet expired.
  16. Terminating non defaulted running account credit agreements.
  17. [Devil's advocate mode] If it is 'outside' CCA1974 as opposed to 'contrary' to the CCA1974, I wonder what legislation it does come under?[/end Devil's advocate mode] I know it is a regulated agreement, but where the Act is silent on a matter where do the courts look for an answer? The law says what you can't do not what you can do (not yet anyway!!).
  18. How long did it take them to address the 'approved limit' gambit? That was more straightforward than this scenario.
  19. The problem with the Egg termination is that it explores uncharted waters. The questions IMO are: Did Egg have the right to 'end the agreement' whilst maintain entitlement to repayments? Is use of the word 'ending' fatal to the agreement and will it hold up to the debtors advantage in court? Do Egg have the right to charge interest on outstanding balances while denying access to further credit having ended the agreement? How many clauses were 'ended' and which do Egg claim weren't. Should Egg have restricted or deferred credit instead of ending the agreement? (As allowed in CCA1974). Without the benefit of s87 (there being no debtor default) can Egg demand repayment of full balances? The debtor assuming the agreement is ended may stop paying thus 'defaulting' after the agreement was ended. Is their action a repudiation? There will be as many different answers as there are questions, which is why there are conflicting and differing opinions. Maybe Egg are looking into all the questions before risking litigation and are as unsure of the answers as we are.
  20. Only if you can prove the reconstituted docs are not true to the docs at the time of signing. Easier said than done most times unless the creditor drops a b*llock or you have original non compliant docs. I still think the best defence against Carey is to not use the s78(6) unenforceable route, but go s61(1) / 127(3). There is plenty in Waksmans determination to say the recons are not for proof of execution (which is what s61 is about). HHJ even outlines what a compliant agreement is like and uses an example. Then there is his determination for Reg 7 under agreement variations. I do realise this judgement is good for people with nothing but recon agreements, but I still can't understand why such people can't use the s61 which requires a copy of the original to prove execution.
  21. Love it DD !!! At last someone who says what we all know deep down. We are just trying to avoid paying a debt (maybe with bloody good reason - we are all broke !!).
  22. Not sure this is the way to go DD. Surely better to assert you signed an application but never ever saw or signed a doc with PTs attached. Carey in the Assumed Facts states at [177]:
  23. I have one for a small catalogue debt. I am suing! (For practical experience more than anything else!)
  24. Eh ? We ALL KNOW we've had the money, you, me, the creditor, and the judge. The trick is to hang on to it, or pay it back more slowly. As I see it the only way is to make it impossible for the court to force you repay at the original agreed rate, if at all. For that there are only two real sections of the Act we can base a defence on s61 or s87. It is a good idea to have a good response to the question 'did you borrow the money?' or 'do you owe the money?' But if you don't have some killer arguments I fear it will be of little use.
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