Hi there Johnerog - yes I agree but also my argument in other posts has been I have already paid them whatever each balance is at present in OVERPAID interest - in MY view- that is because what I have signed in the one complete agreement I have is a rate FIXED at 9.41 above base - MINT. In CAPITAL ONE the advertised rate is '11.9 apr long term' as that is on the agreement/application form with no other T&C's it would be misrepresentation to be able to charge more etc etc same with all the others BUT not one of them has all the prescribed terms accurately stated e.g. in the MBNA micro print there is no APR for purchases - only for Cash advances - obviously an error on their part but nevertheless does not comply with a prescribed term etc.

Yes i slipped up there - but it was interesting to see what they would come up with as a first suggestion maybe if I had the funds I could make a 10 per cent offer - i'm now waiting to see if the agreements are enforceable as that obviously strengthens the hand -

Hello all - just a bit of info here - Ive just returned a call to MBNA about my account - they are wanting to default at the month end and offering a low interest free monthly repayment sum or full and final of some 35 per cent paid over a period of time - claiming they are likely to sell the debt on - they get a low figure maybe 10 to 20 per cent - but sell to reputable firms where can come to an arrangement with them. Strange at no point in any of these dealings with any creditor is bankruptcy ever threatened - don't know whether that is something the DCA's or other companies which buy the debt ever get round to doing ? I guess if someone did its going to result in no one EVER getting anything so suppose the answer is they don't ? any views on this ?

Hi the media and politicians are not lawyers or consumers burdened with these self interested vermin - risky lending for NEW sums is maybe an argument for high rates but to put rates up on existing sums is increasing the risk and de-stabilising other loans the debtor may have such as mortgage repayments - The argument is a legal one and only needs to be used IF the agreements turn out to be enforceable - Get into a debt management plan caused by increasing the rates and where does the argument go from there ? they charge 300 per cent more than originally agreed to then cause you to have to enter a debt man plan where is the logic there ? In any event they have from me at least all had already as much as they are morally and in my view legally entitled to.

Hello there - I assume you mean charges and interest on the charges in which case no there wont be much of a refund. But yes in my own reckoning take for example Egg - at £10k each balance on each of the 2 cards held for 5 and 6 years the interest initially was something like 1.29 per month - their section 12 of the accompanying generic terms relates to interest which will fluctuate with banking practice which as its vague can only really mean base rate. So if base rate was say 6 per cent when I took the agreements on then the monthly rate wants to be now say 0.6/7 per cent when we all know its around 2.5 - at that rate the difference between that is for arguments sake say 2 per cent per month or around 20 or more per cent per annum and on balances which quickly got up to £10k per card when the accounts were open that means the difference between the 2 rates would over 5 years amount to whatever balance were to be owed ! That is before the application of 8 per cent county court rate if that argument held up. However this argument would have to be refined and tuned into when their rates went up so much and when the base rates dropped so much and the gulf between precisely plotted - but it is likely to equate to almost if not as much as the debt itself. Of course Egg like all the others will argue that they can put the rates up as they feel like it. In my as yet untested opinion they cannot do so. When I studied contract law any vague terms would be read against the person making them - esp in mass consumer products where they are imposed on the less dominant party. Even the standard text books on banking law cite 'and for any other reason' as being invalid when referring to a right to alter the rates. In my opinion it can hardly be a valid reason to increase rates when base rates have declined on money already borrowed. Also when signing or agreeing to a contract if those terms stated as they were then have been ignored - then the Misrepresentation Act of 67 may apply - as on reading the terms then how is it reasonable to suppose at some future date money borrowed under that belief or terms would then be subject to unilateral interest rate increases when base rates have declined exponentially ? That is before even the Unfair Contracts Terms Acts have been taken into account. So you can see the argument is 2 fold - one the agreement is probably not enforceable as prescribed terms are not stated correctly and even if they were the body of the remaining contract has been breached by misrepresented and unreasonable terms and the dominant position of the creditor and vagueness of terms would work against them. Capt2

Hi Andrew thanks for those words of caution you sound as though you have been there already ! Ill drop that line - if the agreements are unenforceable then i suppose its largely irrelevant anyway - maybe the debt management plan if we can agree low enough monthly figure with the creditors would be better value and see what happens over the next 6 months or so as the agreements are looked at and if found to be unenforceable they can drop out of any plan altogether - I have managed to locate a no win no fee agreement auditor - but remains to be seen what happens there. Any suggestions from your own experience here ?

Hello again - I wouldnt worry about payplan being on side of creditors they're not its just a tactic on my part to keep control over potentially spiralling situation - Also my letters to Egg and MBNA have indicated to each that until they produce a copy agreement I would be willing to pay token sum and look at full and final at no more than 10 per cent. Thats all they get from selling debt on and they will know which agreements are enforceable so if they know they haven't got one or have a duff one then they will be looking at getting out of it - my argument with them is that they have already had more than the full balance in excessive and unfair interest - so morally and legally I have the high ground - but as you know they don't go away so its just to safeguard my current position and to have some finality over it from my point of view. Your situation sounds surprisingly similar to mine why don't you send me a private message and i will give you my contact details. I'm in N Yorks by the way. I am in the property development and holiday lettings business and others.

Thats a good point that you need agreement first to establish its valid - but my angle was to get a DMP in place as protection while simultaneously getting the agreements legally checked and declared unenforceable.

Hello thats quick reply - DMP = debt management plan - I owe £86k on cards and huge mortgage but as I do holiday lettings the mortgage interest should be covered next year - i have sizeable unsecured and secured business debts too and its really chaotic - BUT my business is beginning to recover so at least I can now see an end or more like a ledge to get on before the next climb ! The DMP would stave off action and not tie me into acknowledging the debts as they are either statutorily unenforceable or not - maybe you should look at this. Payplan is the credit industry's funded charity which seems to have a good arrangement with creditors where they can get agreements in place. The once they've become used to accepting small token sums a low one off full and final may be attractive to them -

Hi Gallahad - I too stopped paying all cards and some bank loans as I didn't have the funds to do so. That was in February and as a result i've managed to keep my small business afloat. I deal with all calls from creditors by keeping my phone on silent and naming the numbers from M&S Egg and MBNA etc so I dont answer those calls when i see the names calling. Fortunately only Egg have my home number and they don't ring that very often. Monument and M&S and by far the worst. I have zero credit rating now but Im not wanting to move house or buy a car etc so its not really affecting me in practice. Im just wondering how long life can go on without them issuing statutory demands or court summonses ? But none of them have valid agreements in any event. I am arranging to go into a DMP and keep them at bay that way while waiting for legal opinions on the agreements. How have you got on with your debts so far ?

Hi a further note - I have already got most of the agreements from creditors - but using a tactic of asking for them again three months after originally getting them - I have sent off again to see what they will send second time round. The responses are as follows - 1. M&S refuse to send one ! conclusion prob because its not enforceable 2. MBNA 2 agreements -still not sent in spite of numerous requests conclusion as above 3.Egg 2 agreements still not sent after ,any requests -conclusion as above 4. Monument just downright thick - haven't got a cat in hells chance of making what they sent stick -in my opinion 5. Capital one almost as inadequate as Monument and like them VERY aggressive but since I've written to the ombudsman about them they've backed right off -and called those equally thick Fredericksons off - 6. Mint a fixed margin over base of 9.41% so rate now should be under 10 % but its over double that - inadequate agreement with accompanying generic terms - not enforceable -lacks some prescribed terms in the signature document 7 HSBC admitted in March their records dont go back to 95 but second request for agreement they are now sending generic ones out with cheeky letters about no need to include a signature - My solicitor friend (not a consumer expert) says that no one can write a letter these days he thinks the 'call centre culture' prevents anyone from being able to read absorb or compose a letter. But the exercise of asking again has drawn interesting results as noted above. We know from here that Egg's use of 'approved limit' is not 'credit limit' as required as a prescribed term without which a court is NOT allowed to enforce. So my letters ready to fire off about misrepresentation and inadequate agreements remain on file unable to send until I get the copy agreements.

Hi they have to produce a copy not a generic copy - there are several authorities for this on here - Here's a copy of one of my letters to them - Dear Sirs I am in receipt of your letter of xxxxx wherein you express sympathy that this account has been of concern to me. You indicated a full response in about 10 days. There is a postal strike and backlog so that’s maybe why the delay has occurred. However your staff are calling my number several times each day and I have repeatedly explained to them that I am waiting for your reply. They are rude aggressive and harassing. I am also mindful from what they have said that they are obviously acting on company orders to make these harassing calls. This is potentially a criminal offence. Please see why below. That you have a good reputation and that I spend a lot of money in your stores and on your financial services with life cover etc. should really deter you from acting in this way as it is going to ruin what reputation you may have. It is clear to me there has been potentially mis-sold life cover with this account and massive over payments of interest over the years for which I require full a refund and compensation plus interest at 8%. I will however also inform you of this – Sections 77 and 78 of the CCA 1974 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided. Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement. To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice. The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor. Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs). Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs. It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it. Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement). In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs. Please read the above information and consider the position. In providing me a legible copy of what I have signed I cannot agree that any debt exists namely due to the none specification of interest rate alterations and other prescribed terms potentially absent as I assume the text which is illegible in the signed and executed copy contains this but that due to its illegibility I cannot check this. In my opinion I have already paid you considerably more than the original margin advertised and as the rate increase terms and conditions are effectively not stated in the agreement it has prevented me from finding this out and thus assessing the situation. Regarding the interest charged - the following is an extract from the Office of Fair Trading web site - One of the main themes of the Consumer Credit Act 1974 is that there should be ‘truth in lending’, particularly in advertisements for credit and written agreements or other documentation. The Total Charge for Credit Regulations, made under section 20 of the Act, define a total charge for credit (TCC) which includes interest and other charges which affect the real cost of borrowing – even if they are not payable under the credit agreement itself. Simply knowing the amount of the credit charges is not usually enough for a borrower to compare one credit deal with another. The time at which the credit and charges have to be repaid affects the rate of the charges being made and how valuable or costly the deal is to the borrower. Lenders use a number of different ways of charging interest and these can treat the time of payment in different ways. So, in addition to leaving out other charges, lenders’ interest rates will not generally provide a useful comparison. The Total Charge for Credit Regulations also set down how to calculate an annual percentage rate of charge (APR), which expresses the TCC as a standard measure borrowers can use to compare the credit charges under one deal with another, whatever rate or method of charging is used. It is important to understand that APR is not the only thing the borrower needs to consider when choosing credit. For example, the deal with a lower APR might require monthly payments the borrower cannot afford, or run for much longer than the borrower wants or than the goods bought with the credit are likely to last, or the goods might be cheaper from another store, making that a better deal even though the credit charges are higher. However, APR is the only standard measure which allows the borrower to compare the charges being made for the credit provided. In addition to helping borrowers shop around for credit, the TCC and APR have other uses under the Act. The TCC is used in the calculation of rebates on early settlement (details of these provisions are given in the Office’s booklet Matters arising during the lifetime of an agreement) and to determine the charges which a credit broker cannot make, or must return, if he does not obtain a loan for a Office of……etc etc’ Thus section 20 of the CCA1974 defines TCC and this includes APR as a stated requirement and one of the prescribed terms of the Act where a court has no power to enforce if not stated correctly. In the case of your alleged ‘agreement’ interest and APR but not TCC is stated and the payment details are omitted. The amount of credit and credit limit are also omitted. Thus the single sided ‘copy’ ‘agreement’ cannot be considered adequate under the Act as some of the prescribed terms are missing and the agreement is illegible. That there is no properly executed agreement contradicts your claim that you are reporting factual information regarding none payment and defaults as there is no proper basis for so doing furthermore under the banking code defaults are not allowed while an account is in dispute. Nor is not allowed under the Data Protection Act and is something I will write to the Commissioner of Information concerning wrongful dissemination of such information. Under the Banking Code which applies to Credit Card companies there is a fairness commitment and to provide clear information on products, how they work, terms and commitments – detailed information before you commit to a contract – The code specifically states - 4.3 ‘we will give you a full explanation of how we work out interest.’ The Banking Code also reiterates your commitment Under the Data Protection Act of my right to see the records you hold about me which includes copy signed agreements. Furthermore under the banking code you may only contact credit reference agencies if the account is not in dispute. Section 13.6. I will also further add - 'I am repeatedly having to say the same things to your representatives who call my telephone number continually until I stopped taking your calls but still make dozens of calls each week. Please note that under the Data Protection Act I am formally demanding that you remove my telephone number from your records. If you fail to do so I shall take this matter to the relevant authorities for their investigation. Due to the seriousness of this matter and any legal action, which may arise, I will only correspond in writing and will not accept phone calls or personal visits. Should you either visit or phone I shall consider this as harassment and either take legal action and/or make complaints to the Office of Fair Trading under section 40 of the Administration of Justice Act 1970. Section 40 of the Act provides that a person commits an offence if, with the object of coercing another person to pay money from the other as a debt due under contract, he or she: • harasses the other with demands for payment which by their frequency, or the manner or the occasion of their making, or any accompanying threat or publicity are calculated to subject him or his family or household to alarm, distress or humiliation.' Please take particular note of the above as I find your company tactics unreasonable harassment. I must advise you that you must cease all calls to me and that in any event all dealings MUST be in writing. Should you not take notice of this you will be in breach of the Banking Code your consumer Credit Licence and S.40 of the Administration of Justice Act. Should you not cease this forthwith I shall complain to the Office of Banking Code Commissioners and the Trading Standards Department. yours etc....

Get the agreement first then ask the questions once you know whats in the agreement.....

Hello - I too have a personal reserve account and the original copy sent to me is dark, grainy and almost totally illegible the only thing I can make out is the interest rate which is considerably less than it is now and ticked box for PPI - I have had it since 96. I have therefore asked for a further copy and despite sending numerous letters and at least one cheque for £1 have still not got it. I have also asked for PPI details. Their staff when I have taken the odd call are rude and aggressive. I could easily pay it but i'm not on principle. They call 10 times every day. Why they cant comply with a legal and reasonable request is strange to say the least. Its one I'm thinking of issuing proceedings against in small claims court as its only £800 odd and they will owe me more than that in mis-sold PPI and unfair interest charged. A solicitor friend tells me, which you can see in the CCA is a requirement that agreements have to be legible - but a claims solicitor I spoke to said they only have to produce a legible one for comparision for a court to enforce it ! Sounds bit against the CCA to me to be able to enforce. Actually they are worse than MBNA and almost as bad as Monument for harrassment. Surprising given their good image. Let me know how you get on please !

Hi All - Im posting this on here - my new line of argument is if the creditors cannot reply to reasonable requests and in performing a statutory obligation how can their financial statement be relied upon ? Hence my request today to MBNA and EGG to nominate at their expense an independent auditor. Of course they will not reply but Im wanting to build my file up to show I am making every effort and to show they are not so if a Court hearing ever arises I have some ammunition. Also I am stating I may consider making a Full and Final off at no more than 10 per cent as that is what they will get if they sell the debt and without a signed and enforceable agreement they may not even get that but it may be worth that to get rid of the debt and start to rebuild my credit file over the next few years. - '' It is my legal right to have a copy of the agreements. It is also reasonable for me to request them and for you to send them. Until you can establish the validity of the balance you claim is due I cannot realistically be expected to come to any arrangement. I would be willing to come to some arrangement in the sum of £20 per month across both cards until the situation resolves itself or to consider a one off full and final settlement at no more than10 per cent. I am now very concerned that the sum you are claiming is likely to be incorrect. That you have demonstrated such lack of ability to answer the simplest of requests leads me to believe there could be mistakes in your statements. I believe these should now be audited by an independent accountant at your expense to prove they are correct.'' Any views would be welcome. This letter has been written after several requests for copy agreements which they seem unable to send despite me having had them a few months ago ! The ones I have seem to be unenforceable anyway.

Hi thats a good idea ! then once we've got a few together friends and family can maybe swell the numbers or with a little advance press publicity may get an avalanche ! One of the things I feel strongly about is borrowers like me who have had hard core debt which has never moved in over 6 years resulting with hikes in interest rates doubling and even trebling the creditors have already had their money back even allowing for the usual none discounted rate of interest when first opening the account . Furthermore while the banks get bailed why should hapless consumers have to suffer adverse credit reports for 6 years there should be some sort of track or system that allows adverse credit to be put into a special section for those where payments have been met for many years but due to business failure or near failure payments have defaulted through lack of funds - these issues need highlighting so the wider public can understand it is not everyone trying to avoid paying debts.

Well thats 6 or 7 within an hour -not sure of how we go about posting here to get more but we need a plan to convene on a certain date maybe after the unfair bank charges case gets looked at this month ? to pick up on heightened media awareness - not sure the site is supportive of this type of activity anyone want to suggest date and method etc ?

What about a friendly picket demonstration outside their offices we only need a dozen or so with placard to grab some TV headlines ! They want showing up they are too big to be bothered by the regulatory bodies. Or t least thats what they think and the regulatory bodies are too slothful to do anything. It would only need a simple rendevouz point, date,time and small number with a few placards Im happy to attend specially and travel -----if successful can then stage others outside Derby Egg, Chester MBNA, Southend Mint etc.

me too -

Hi that sounds like a good thread starting......

Online signatures I think were post 04. According to site team member approved limit is not credit limit - and been upheld in a county court but off to high court in March re that definition. So tread water till then maybe......

Hi there - its going no where fast for either side - I'm waiting to drop my 'depth charge' so to speak and they wont put me in the position of being able to use it as they just will not reply to letters ! Still no copy agreement sent despite several reminders - i have copy agreements already but im just wanting to see what they send again ! Same with MBNA except they are pleading for me to make a full and final offer - which i'm looking at doing at 12 per cent paid over 3 months in 'without prejudice' format. Then if they accept I will tackle them about the mis-sold insurance ticked box at that point - if they don't accept i will be off the trading standards dept. How are you doing ?

Hi All ! This may be better in a separate thread. But it may have relevance to a lot of arguments here - e.g. my Capital One card 'agreement/application' form has '11.9 % long term interest rate' but no terms and conditions and thus not compliant with CCA1974 - but also under Misrepresentation Act 67 its also a misrepresentation which would allow recission as the interest rate is now over 20 per cent. Has anyone tried using the Misrepresentation Act in their arguments ? The argument would be 6 years of interest at say 20% as opposed to say 10 per cent plus county court 8 per cent would equal the sum of any balance - Thoughts /opinions would be welcomed.

Hi yes I agree they are unbelievably arrogant - after having promised long term interest rate of 11.9 apr in '99 in their copy 'application form'. They have almost doubled that rate since and i reckon I have paid the balance now owed of some £6500 in excess interest over just 6 years ! In spite of not getting an explanation of their rates and how they can put them up and an agreement containing some terms (which could not possibly be enforceable) they then referred the account to Frederickson's who postured and threatened and who now have been instructed to close their file by Cap One. Then a letter from Cap One saying they were going to carry on enforcing the debt and they would strongly defend any court action I may bring !!! Not sure yet what to make of this !

hi thanks - that sounds detailed and informative - if APR not stated for purchases but is for cash advances what do you think is the case there ?