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Egg credit card agreement terminated


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Why so doubtful?

It is not a matter of me "being right". I am simply repeating what the text of the 2006 Explanatory Notes clearly explains, with regard to S87 of CCA 1974, which is that if a creditor wishes to terminate an agreement under the provisions of S87, then the creditor is required to give the debtor a default notice in the prescribed form.

 

If anyone thinks it means something different, I would be very grateful to know what they think it means.

 

Maybe I am naive, but to me it is very clear, very easy to understand.

If Egg wished to terminate my agreement under S87 of CCA, then Egg were required to,

1. Give me a default notice (they didn't)

2.It had to be in the prescribed form (that requirement was not relevant, as they didn't give me a default notice).

 

IMO 'Default Notice' is just another way of saying 'Notice of Default'.

 

Now, as none of us were in default, there was no need for a 'notice' advising us of that - ergo s87 is not applicable.

 

The law cannot tell you what to do, it only tells you what you should not do. As there is nothing in the CCA to cover this situation there is no law to break.

 

Now whether Egg's clause 15 (as I said before) breaks the law of unfair terms or unfair relationship is another matter.

 

From what I am reading lately in various new cases, the judiciary is pretty keen to work around rather than in the CCA.

 

AFAIK any credit agreement is based on the creditor providing credit that the debtor then pays back (with interest). The debtor benefits from being able to draw down cash sums he would not otherwise have access to and pay it back in conveniently small increments over time.

 

The creditor benefits by receiving regular payments which, with the interest added, and over time, add up to far more than he has paid out.

 

Now to my mind what Egg have done is to completely upset this symbiotic relationship whereby the debtor no longer has any benefit at all but the creditor loses no benefit at all.

 

IMO that cannot be considered fair.

 

Consequently either the clause 15 of Egg's T&Cs is an unfair term or the action by Egg in invoking this term has created an unfair relationship.

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IMO

as none of us were in default, there was no need for a 'notice' advising us of that - ergo s87 is not applicable.

I find your interpretation of the 2006 Explanatory Notes to CCA very odd.

For example, it is irrelevant that the reason that Egg did not send a default notice was because the Egg agreements were not in default. That does not in some way override the requirement for Egg to comply with S87, as explained in the 2006 Explanatory Notes, specifically the requirement to send a default notice if they wish to terminate the agreement.

In any case, consider the situation if a creditor really was permitted to terminate a credit card agreement at any time. CCA is there to protect the debtor. Can you not see that if a creditor could legally terminate an agreement at any time, without complying with S87 it would render CCA totally pointless, - and with no protection whatsoever for the debtor.

S87 of CCA is alway applicable to termination of credit card agreements.

[quote=basa48;3184600

The law cannot tell you what to do, it only tells you what you should not do. As there is nothing in the CCA to cover this situation there is no law to break.

Again, a very odd view in my opinion. The law certainly does tell you what to do.

For example, the requirement to give a default notice to a debtor is something that the law states is required to be done.

 

 

 

 

 

 

 

Consequently either the clause 15 of Egg's T&Cs is an unfair term or the action by Egg in invoking this term has created an unfair relationship.

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toymaker1 - trust me I know what you are saying. Egg couldn't issue a DN because there was no default, but still terminated without one. It is very odd that this situation does not appear to covered in the CCA, but that is the situation as I see it.

 

To me there are only two ways to look at it - Egg cannot legally terminate because there is no mechanism in the CCA by which they can, or they stepped outside of the CCA into contract/common law.

 

The fact is they HAVE terminated the agreement. Now does that contravene s87 ? I can't say I follow this argument since there is no default and no need or possibility of a DN. Or have they contravened s140 (Unfair relationship)?

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have they contravened s140 (Unfair relationship)?

The only person who can decide if Egg have contravened S140 is the judge. It is for the judge to decide if, in his opinion, they have been unfair within the meaning of S140. - you and I can only speculate on that point.

The situation with regard to terminating without giving a default notice is totally different. It it can be proved that Egg terminated an Egg card agreement without giving a default notice, then it would not be matter of opinion, it would be the case that Egg breached the provisions of S87 of CCA, and would have to take the consequences as decided by the court.

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Spot on Peter. You are absolutely correct that a creditor cannot enforce a T&C which contravenes statute. In this case the relevant statute is CCA 1974. As S173 of CCA 1974 puts it "A term term contained in a regulated agreement is void if it is inconsistent with a provision contained in this Act or in any regulation made under this Act"

 

Yes if it contravines aprovision of the act, So where is the provision that says that a contractural trmination cannot apply

 

Peter

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Termination under contract

This is usually a section contained in the contract which states the creditor may terminate at any time and on termination all sums due under the agreement become payable.

 

The common reaction to this is, ”They cant do that can they” well has we have previously established they can, the reason is that there is nothing in the statute that says they cannot.

 

The fact is that if there is a term in the contract that says the creditor can terminate at any time and on that termination the amount under the contract becomes due and payable it is perfectly within the creditors rights for him to put it there..

 

The banks would say that they would also have aright to recover under a demand via the court. ,

They say that the only reason they do not is because they are required by the lending code to behave sympathetically with the customer.

Personally I think the present Legislation contained within the CCA 2006 would make it very difficult for them to do so.

 

The liabilities under the contract are still there and common law would still expect them to be replayed In the manor originally required by the contract.

 

However having said that the agreement has been terminated, on a consumer credit agreement there is no real difference between a contractual termination and a termination under common law, because there are no issues of damages just recovery of liabilities currently under the contract.

 

 

Termination on breach of contract

 

The other cause for termination is breach by the debtor of one of the core terms of the agreement, the repayment schedule.

The act of not repaying the loan would be a repudiatory breach of the agreement and actionable under common law. If it where not for the act this repudiation would be accepted, the agreement discharged and procedures commenced to recover the liabilities due under the contract.

However as part of its function of consumer protection the act ensures that we have a chance to remedy before the agreement is discharged. (section 87)

In this respect the default notice could be considered as the acceptance of the repudiation.

As a consequence of this analysis it is plain that the associated termination /discharge of the agreement cannot take place unless the repudiation is confirmed (a correctly executed default is issued)therefore there can be no termination.

This conclusion is further compounded by the wording of section 87

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default

notice”) is necessary before the creditor or owner can become entitled, by reason of any

breach by the debtor or hirer of a regulated agreement

Notice it says “breach of an agreement” not, “ breach of a term of the agreement”

Also it says,” can be come entitled to “ this means that if there is no breach no repudiation there is no entitlement to terminate under this statute.

 

So the issue of whether a termination issued after a incorrectly executed notice is unlawful is solved because the contract cannot be terminated in that instance.

 

Defaulting a Terminated account

So what happens if an account is terminated and then sometime down the line the debtor stops paying the instalments.

Surely the requirement for the debtor to repay disappears when the contract is terminated.

No I am afraid it does not.

Common law says that all liabilities under a contract must be repaid, so whilst the terms of the contract no longer apply the liabilities are still there.

It is still quite acceptable to issue a default notice on a terminated account contra to common belief.

Section 87 just says “of a regulated agreement” it does not say under a regulated agreement.

In other words the agreement does not have to be current it just has to have liabilities still due on it.

We know this is true because DCAs with a total assignment do it everyday.

So what about the remedy of a breach under section 89

Section 89 of the act says:

If before the date specified for that purpose in the default notice the debtor or hirer takes the

action specified under section 88(1)(b) or © the breach shall be treated as not having

Occurred

The misconnection about this is that it means they agreement should be put into the same position as before any breach was committed.

Lets examine what that would mean.

The creditor would be compelled to ignore maybe years of missed payments and re start the account, the CRA would have to remove any defaults or missed payments off their records as if they never happened .

Firstly common sense does anyone really believe this could happen?

The act of course says no such thing. The reference to the breach having not occurred refers to section 87 where it says,” by reason of a breach”, its function is to remove the entitlement of section 87 to enforce the agreement.

The statement mealy closes the loop in the same way that a none compliant DN under section 88 does.

This is why a DCA can issue a default it does not have to return the account to its functioning state just to its condition before the default was issued.

 

Source material for this post are to be found in

 

Barclays Bank

Goodes Consumer law

CAB information leaflets

Stocksnya Gdynia SA V Geaarbrook Holdings Ltd 2009

Consumer Credit Act 1974 Assoc SI

 

Best regards

Peter

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A consumer credit agree it still a contract. Contract law still applies to the agreement in the same way it always has.

It is up to the creditor to say what terms appear on the agreement and the debtor to agree or not just as it always was.

All statute does is place parameters on those terms in the intent of protecting consumers.

This is important to understand as it is not for the statute to initiate actions under the contract.

 

The act may require the creditor to take certain actions, provide copies , default notices, bit these are requirements of statute not of the contract.

 

So when someone says,” where does it say in the act that you can do such a thing ?” , the answer is, “it doesn’t” the act does not work like that.

The question should be,” where is the statute that limits the creditor ,s contractual right to do a thing?”

 

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A consumer credit agree it still a contract. Contract law still applies to the agreement in the same way it always has.

Well, yes, but I think that you have put the point in a rather unclear way.

For example, I think it would be clearer if one said that contract law applies to the (consumer credit) agreements, subject to the provisions of CCA 1974.

A

It is up to the creditor to say what terms appear on the agreement

Again, I suggest that you have put the point in a rather unclear way.

For example, I think it would be clearer if one said that it is up to the creditor to say what terms appear on the agreement, subject to there not being any terms in the agreement which are inconsistent with any provision of CCA 1974.

 

A

The act may require the creditor to take certain actions, provide copies , default notices, bit these are requirements of statute not of the contract.

 

Yes, but again, I think it could be put more clearly.

For example, one could say that although the requirement to give a default notice is a requirement of statute and not of the contract, it nevertheless is a requirement, and therefore the creditor is required to comply with that statutory requirement.- i.e to give the creditor a default notice.

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A consumer credit agree it still a contract. Contract law still applies to the agreement in the same way it always has.

It is up to the creditor to say what terms appear on the agreement and the debtor to agree or not just as it always was.

All statute does is place parameters on those terms in the intent of protecting consumers.

This is important to understand as it is not for the statute to initiate actions under the contract.

 

The act may require the creditor to take certain actions, provide copies , default notices, bit these are requirements of statute not of the contract.

 

So when someone says,” where does it say in the act that you can do such a thing ?” , the answer is, “it doesn’t” the act does not work like that.

The question should be,” where is the statute that limits the creditor ,s contractual right to do a thing?”

 

 

Peter,

 

Am I just being a bit fuzzy here, or is it not part of statute that a debtor must be given a default notice before the creditor can terminate the contract?

 

As you state above 'The act may require the creditor to take certain actions, provide copies , default notices, bit these are requirements of statute not of the contract.'

 

This surely 'limits the creditors contractual right to do a thing'.

 

Regards,

 

Bosun.

Please note: I have no formal qualifications in this area and any advice offered is given in good faith. :)

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Termination on breach of contract

 

So the issue of whether a termination issued after a incorrectly executed notice is unlawful is solved because the contract cannot be terminated in that instance.

 

I think you should have written "the contract cannot be legally terminated in that instance".

 

The fact is the agreement and the account in most cases are irretrievably terminated by the creditor and nothing is going to make them re-instate it. This on top of an invalid DN which was in itself prejudicial to the debtor, makes a good case for breach of contract.

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I think you should have written "the contract cannot be legally terminated in that instance".

 

The fact is the agreement and the account in most cases are irretrievably terminated by the creditor and nothing is going to make them re-instate it. This on top of an invalid DN which was in itself prejudicial to the debtor, makes a good case for breach of contract.

 

Hi Bassa

No the agerment cannot be terminated at all under a defective 87 thre is no entitlement for the creditor to do so.

 

the section does not say must not it says he cannot ( or conversely he can) ther is therfore no entotlement for him to terminate at all.

 

Peter

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Peter,

 

Am I just being a bit fuzzy here, or is it not part of statute that a debtor must be given a default notice before the creditor can terminate the contract?

 

As you state above 'The act may require the creditor to take certain actions, provide copies , default notices, bit these are requirements of statute not of the contract.'

 

This surely 'limits the creditors contractual right to do a thing'.

 

Regards,

 

Bosun.

 

Hi

 

Yes exactly right . Statute limits the contractural rights , it does not instigate terms of a contract.

 

A creditor can put whatever he likes in a contract and of the statute says nothing about it and you sign it then you are contracted to that term.

 

Sending notices or even the whole section 87 thing is not mentioned in any contract it is a facility of statute.

Peter

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Hi Bassa

No the agerment cannot be terminated at all under a defective 87 thre is no entitlement for the creditor to do so.

 

the section does not say must not it says he cannot ( or conversely he can) ther is therfore no entotlement for him to terminate at all.

 

Peter

 

There is also a law that says I am not entitled to exceed 70 mph on a motorway, But, guess what, I and many others do - and break the law in the process. Of course there are sanctions for it, but no one says go back to that motorway and drive through it at the correct speed.

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It depends what you mean by a "contractual termination"

 

Imean temination by means of a contractural right as oppsed to breach.

Peter

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There is also a law that says I am not entitled to exceed 70 mph on a motorway, But, guess what, I and many others do - and break the law in the process. Of course there are sanctions for it, but no one says go back to that motorway and drive through it at the correct speed.

 

If the law fixed your car so you could not go 70 MPH then they would not be able to give you a ticcket . You would not be able to.

 

Peter

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In the event one had defaulted on the account prior to egg's letter, one would now have pond life chasing the amount outstanding upon default?

However Egg take effectively the same action, ie termination, but reserve the right to charge around 30% interest having hiked it just prior to their termination letter???????

Seems to me it would cost far less to immediately default

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A creditor can put whatever he likes in a contract and of the statute says nothing about it and you sign it then you are contracted to that term.

 

In my opinion, that is not correct.

My understanding is that a creditor can put whatever he likes in a contract, provided that no term of the contract is inconsistent with any provision contained in CCA 1974. This is clearly stated in S173 of CCA.

In light of that, it seems clear to me that you are not contracted to any term of a credit card contract which is inconsistent with any provision of CCA.

Consequently, it seems to me that it is not correct to say that the statute says nothing about what terms can be put into a contract. The statute (at S173) says a lot about what can be put in the contract.

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  • 3 weeks later...

Guys and Gals ,

 

I've been watching this thread with great interest , as i am 1 of the chosen 160'000 ( give or take a few ) . I've seen arguments for , and against with quotes from various legislation to support and negate caggers opinions or beliefs !!

 

I'm still non the wiser , with no apparent resolution on the horizon we appear to be in a state of limbo ??

 

I would like to state the obvious point though for everyone out there who feel Egg have done no wrong -

 

Why after almost 3 years do EGG appear to have resigned themselves to the fact that these monies are unretrievable ????

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Excellent point, Williewonker. If Egg are so sure of their position, then all they have to do is go t the County Courts to get a judgement against people who dispute unusually worded CCAs. As you say, after almost three years of procrastination, they have not done so and are now being sold. Some observers say that "toxic" debt will be hived off in the process of the sale e.g. written off or sold at pennies in the pounds to DCAs.

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I have a firm of solicitors fightinh Egg (also I am one of the 161,000). They have written to me recently and I quote "In respect of the merits of the Claims (that's our claim against Egg) this firm has never progressed claims on the same basis as the cases that have been widely reported in the press and particularly on the internet. These types of claims would not have, even if they had been successful have obtained an adequate rmeedy for clients. However unfortunately as a consequence of the conduct of many Claims Management Companies and indeed the manner in which some claims were progressed the landers have taken the decision to be uncooperative and not to comply with the rules of Court in the hope that their customers will not progress their claims. It has therefore been necessary for this Firm to instruct a team of Barristers to consider the merits of clients' claims and to prepare thec necessary Court documents to enable proceedings to be issued."

 

They are also acting for me against another credit card company and their latest missive states the same.

 

Any other Caggers on this path ?

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Interesting post. Pleas keep us informed of the barristers and lawyers end up managing to achieve!

 

Personally, I live abroad and Egg cannot touch me. They only managed to send a very dodgey reconstituted CCA and as mentioned above, if they are so cock sure of themselves about these sorts of documents, why aren't they taking people left, right and centre to the County Courts? More likely a few people not in the know get frightened and pay up.

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...............this firm has never progressed claims on the same basis as the cases that have been widely reported in the press and particularly on the internet. These types of claims would not have, even if they had been successful have obtained an adequate remedy for clients. However unfortunately as a consequence of the conduct of many Claims Management Companies and indeed the manner in which some claims were progressed the landers have taken the decision to be uncooperative and not to comply with the rules of Court in the hope that their customers will not progress their claims. It has therefore been necessary for this Firm to instruct a team of Barristers to consider the merits of clients' claims and to prepare the necessary Court documents to enable proceedings to be issued."

 

I know of no other caggers pursuing Egg regarding the termination letter.

 

I wonder if your sols are referring to pursuing Egg on the unenforceablity route being unsuccessful rather that the termination argument?

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I will ask them and let you know if you let me know how best to let you know !

 

Via the forum or if you think it may reveal some gambit, via pm.

 

The reason I query the comment is that I don't know of any 'widely reported' cases citing the termination letter. I'm sure it would be headline news either way!

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