Egg No Agreement Default Removal

[wednesday1867]

I understand the debt is unenforceable by law for as long as the requisite documents are not produced. The court will not rule out a future attempt as enforcement if or when Egg managed to find a misplaced document, if they ever had it. Steven could clarify if there is a legal outside time limit, beyond which Egg will not be allowed to belatedly produce said document.

 

Thats why i want to force their hand, if they have it, they will produce it and i will start making payments, if they don't have it, do they want to say that in court? If a court says there isn't an enforcable agreement in place, Egg would then need a court order to re instate the account? So rather than stand in front of a Judge and say we haven't got an agreement, they may draw a line under this and close my account, very hopeful i know

 

As for screen print of a cyber application that sounds plausible, that's how I opened an account around year 2000. If anybody did manage to open an account by phone they could comment, but I doubt it. Egg is cyber based and always has been.

 

The loan was to clear my Egg card, hence why i think i did it over the phone. As you say they are cyber based, so that puts more emphasis on the cyber agreement, if its legit, why aren't they enforcing it?

 

I don't think there is any limit on when they might produce it. However, if it takes them longer than 6 years they won't be able to enforce it because of s5 of the Limitations Act 1980. And the 6 years starts one month after you last paid them anything.

 

5 years and counting then.

 

 

I'm just getting to the stage where i want clarification on a number of differing points with different creditors. If Egg have the agreement, prove it and let me pay it off, if they don't, lets bring this matter to a close, just want an answer either way. Its been going on for very nearly a year if not longer.

[wednesday1867]

Well the LBA ran out today with nothing received from Egg.

 

I will be filing a claim with court now, will save the email for there. I will have a go at knocking up come POC's at some point this week, i'll put them up when i've come up with them, if anyone knows any case law or has any tips on the POC's i would very much appreciate it.

 

Thanks

[wednesday1867]

Haven't had chance to crack on with this lately, but i will be sorting it all out soon

[wednesday1867]

Well the LBA seems to have stirred up the hornets nest a little

 

Today i received a letter from HL Legal in association with Sampsons & Co, roughly saying Egg have endeavoured over a period of time to recover the outstanding balance. They have given me 10 days to pay or set up a payment plan, otherwise my account will be liable through the courts.

 

 

The only upside is, it saves me the court filing costs

 

 

So i'm gonna reply to them tonight with the story so far and my stance on the situation.

 

Will the agreement with a tick for a signature stand up in court? Even with the email asking me to send back the signed agreement?

 

I gather best case scenario is, they dont have a signed agreement and thats that.

 

Worst case scenario, we go to court, they bring the signed agreement, the debt is enforced, would i get a CCJ, even though ive said all along ill carry on the replayments when they supply the signed agreement?

 

 

Do i have a case? A good one or a weak one?

[davefirewalker]

Well the LBA seems to have stirred up the hornets nest a little

 

Today i received a letter from HL Legal in association with Sampsons & Co, roughly saying Egg have endeavoured over a period of time to recover the outstanding balance. They have given me 10 days to pay or set up a payment plan, otherwise my account will be liable through the courts.

 

 

The only upside is, it saves me the court filing costs

 

 

So i'm gonna reply to them tonight with the story so far and my stance on the situation.

 

Will the agreement with a tick for a signature stand up in court? Even with the email asking me to send back the signed agreement?

 

I gather best case scenario is, they dont have a signed agreement and thats that.

 

Worst case scenario, we go to court, they bring the signed agreement, the debt is enforced, would i get a CCJ, even though ive said all along ill carry on the replayments when they supply the signed agreement?

 

 

Do i have a case? A good one or a weak one?

 

PASS....it depends a great deal on the judge on the day.....

 

worst case the take you to court and win.....you ask for time to pay and get off with £5 a month (if thats what you can afford)

 

best case the judge says "wheres the signed doc ???"..... and you get off with it

 

and ANY shade in between

 

sorry cant be of any more help.......depends on the judge and how you present your case and how lucky you are on the day

 

Dave

[citizenB]

Subbing with interest. Having received a letter from the same solicitors on behalf of CapQuest/Capital One. The document they sent me doesnt have any prescribed terms and I wasnt aware at first that it didnt comply with all the legal requirements and continued to pay them a reduced sum on a self administered DMP.

 

Having been advised by Capital One/Debitas that they had sold the debt on and to wait for the new agency to contact me, I stopped paying them. The letter from HL Legal is the first contact any other company has made. It was my intention at some point to send an LBA to Capital One, but this solicitor's letter seems to be a blessing in disguise as now I wont have to pay any fees.

[wednesday1867]

best case the judge says "wheres the signed doc ???"..... and you get off with it

 

Thanks, i think the wording of the email, could/should have someform of impact on the outcomes, as it states,

 

We recently sent you a Loan Agreement. If you haven't already done so, please sign and return it as soon as you can, to complete your application

 

Also when i log into Eggs website, their is a section for "credit agreements", when i enter this pages it states:

You have no online agreements available for viewing. If you signed a paper Credit Agreement, you will also have received with it a duplicate copy of the Agreement and a copy of the Credit Agreement Conditions.

In the letter to Capquest/Solicitors, ill ask them for the documents they are relying on for court.

[wednesday1867]

I have now received the sar form requesting a tenner and i.d.

 

Im thinking i might be cheeky about the id and send back the accompanying letter they sent me as i.d or should i just send a copy of my driving licence?

[Mistermind]

This is a reasonable enough precaution to guard against identity theft, which nowadays occurs on a scale affecting tens of thousands. There is no question that you are living where you say you do, but ID proof would confirm that the correspondent is not a new tenant moving into your old premises and masquerading as yourself for gain.

 

A new tenant once moved into my old rented flat, and within the first week intercepted a cheque book of mine which arrived by post late from my bank. He deposited one cheque into his own account without even a passable attempt at forging my true signature. Luckily I checked my bank account online and spotted it the same day as it arrived in my account, and I instructed my bank by telephone to stop payment. Had I not seen it within the 24-hour bounce window it would have been a long laborious process to obtain refund from my bank on grounds of failure to verify cheque signature.

[wednesday1867]

I'm starting to think its time to turn the heat up underneath Egg

 

They have passed it to someone, who threatened to start court action, i did receive a reply to my letter to Capquest, saying they would look into it and reply within 28 days, unfortunatley, i cant find that letter.......

 

But i want to get everything sorted once and for all either way, so i think its time to send Egg and LBA and get court action sorted in a fortnight.

 

So im thinking i should send a letter to Egg, along the lines of them passing my account from pillar to post with no success, hence to no agreement and unless, within 14 days they wipe the debt and remove all history of this account including the default my credit file, i will start court proceedings, to include a judgement on lack of agreement and compnesation under the Data Protection Act.

 

Lets see what they say, if they say anything at all.

 

Time for the softly softly approach is over, its been over a year, cmon Egg lets get it on!!!!!!!!!!!!!!!!!!!

[wednesday1867]

Well thats that bit done, the cage is definately rattled

 

Ill be working on the POCS in stages, so if anyone can offer assistance and point if ive done anything wrong, id very much appreciate it.

 

Ill get some sorted in the next week or so.

 

Thanks

[wednesday1867]

Update and POC's.

 

Ive not had a reply as of yet to my LBA, which runs out on Wednesday.

 

I will be filing at court Thursday or Friday, this is the best way to go?

 

These are the POC's ive come up with for starters, would appreciate some idea of if they are ok, or how they could be improved?

 

Particulars Of Claim

 

1. I, XXXXXX hereafter referred to as the Claimant, and litigant in person do hereby make this statement and Particulars of Claim from my own knowledge and experience.

 

 

2. The Claimant submits the following that under The Consumer Credit Act 1974, Amended 2006 that;

 

3. On XX XXXX 2007, he made a request pursuant to section.77 of the Consumer Credit Act 1974, (hereafter referred to as the CCA ) to be provided with a copy of the original executed credit agreement to which the alleged debt referred . The request was sent via Royal Mail with recorded delivery, enclosing a statutory fee of £1.00.

 

Under the Consumer Credit Regulations 1983 (2) (Prescribed Periods for Giving Information) The Defendant had 12 working days from receipt of the request to comply with that request. Failure to comply with a section 78 request by a creditor (The Defendant) by 11th July 2007 would result in default by the creditor.

 

Section 78. states—(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of 15 new pence ( now £1), shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

4. The claimant claims that the documents received in accoradance with the S77 request are not copes of an executed agreement as they are un signed. As per Section 61 of the CCA

 

61.—(1) A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms

and conforming to regulations under section 60(1) is signed in the prescribed

manner both by the debtor or hirer and by or on behalf of the creditor or owner.

 

5. The claimant claims that the defendant would need a court order to enforce the alleged agreement as per S65 of the CCA

 

6.The claimant claims that a court would be unable to issue a court order to enforce the agreement, as per S127(3) CCA

 

127.—(3) The court shall not make an enforcement order under section 65(1)

61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

7. The claimant claims as of XX XXX 2007, the alleged account entered legal default and is unable to enforce the agreement and as it stands there is no agreement. S78(6)(a)

78-(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement

8.The defendant pursued the disputed account and in XXXXX 2008, issued a Default Notice with the three main Credit Reference Agencies.

9.The claimant claims that the defendants rights to discuss the claimants private data with any third parties ended on XXX XXXX 2007, up until such time they provide a document that complies with S78 CCA.

10.The claimant claims that as there is no enforceable agreement, all history, adverse markers and the Default Notice related to the alleged debt should be removed and deleted from all third parties including Credit Reference Agencies, in accordance with the Data Protection Act 1998 Section 14.

11. The claimant claims the wrongful addition of the Default Notice to the claimants credit file, has had an adverse effect on there ability to gain credit, so claims compensation under S13 of the Data Protection Act 1998, up to, but not to exceed £300

 

Any help as ive said would be very much apreciated

 

 

Thanks

[steven4064]

THis is a bit of a muddle wednesday. Firstly, I think the s77 in the first line of paragraph 3 should be s78 - if it is a fixed loan it is s77, credit card is s78.

 

More importantly, they don't have to send a signed agreement to comply with s78 (or 77) - the 1983 regulations specifically say they can send a doncument with all personal details (including signature) removed. Paragraph 4 is correct (except for the s77 - should be s78?) but the logic, ending with paragraph 7 is not correct.

 

s78(1) (77(1) for fixed loan) says they must supply certain information in response to a request under that section by you. If they don't comply, then s78(6) (s77(4) for fixed loan) comes into play and they must not enforce the loan. In your case, however, it looks like they have complied with your CCA request.

 

However, that is only part of the story. As it is not signed (and probably there are other things wrong with it), it is not properly executed as defined in s61.

 

That means that it can only be enforced by a court - that's what s65 says.

 

Section 127 limits the court's authority to enforce agreements under s65 to documents 'signed by the debtor and containing with in itself the prescribed terms'. In your case, the document is not signed by you. Therefore, it is not properly executed and it cannot be enforced under s65 because it does not fall within the limits set out in s127.

 

Does that make things clearer?

[wednesday1867]

 

Does that make things clearer?

 

Not really

 

It is for a loan, not a credit card, i changed my Egg CC to an Egg Loan, to get some headway into it. I have a screen print from Egg showing my online application, but they seem to have sent me an online agreement, i have evidence disagreeing with the fact that its an online agreement, so i don't know where that came, or even if they just made it up

 

All i want is removal of the default notice, is court the only or best option?

 

When i get a bit more time, ill have another go......

[steven4064]

They will not willingly remove the default - you will have to force them. AFAIK court is the only way to do that, normally linked to something else (eg unlawful charges) but I think it can be done otherwise.

 

The argument is as above:

 

As it is not signed it is not properly executed as defined in s61 of the CCA 1974.

 

Section 65 says, because it is not properly executed, it can only be enforced by a court.

 

However, section 127 limits the court's authority to enforce agreements under s65 to documents 'signed by the debtor and containing with in itself the prescribed terms'. In your case, the document is not signed by you. Therefore, it is not properly executed and it cannot be enforced under s65 because it does not fall within the limits set out in s127.

 

But, you say it's an online application. If it was entered into after April 2004 then it doesn't have to be signed to be properly executed. If they have sent you a copy with a box ticked that says you agree to the terms, then that counts as properly executed and the above argument does not apply.

[wednesday1867]

But, you say it's an online application. If it was entered into after April 2004 then it doesn't have to be signed to be properly executed. If they have sent you a copy with a box ticked that says you agree to the terms, then that counts as properly executed and the above argument does not apply.

 

 

I dont say its an online agreement, the third document they sent looks like an online agreement. I believe i did it over the phone and I have an email from Egg asking me to send back the signed agreement so they can complete my application, also when i go onto Eggs secure site, its says i do not have any on lne agreements. So i think its something they are trying to pass off as my agreement, why else ask for my signed agreement back?

 

The screenprints i have, are of their system, they could of filled them in while i was on the phone, i only have them from a previous complaint about PPI. It does say application method of internet, but then why do they need a my signed agreement to be sent back to complete the application?

 

I was trying to show in the pocs, that if they counter claim to enforce the agreement, that they cant cos of the sections ive pointed out.

[wednesday1867]

Also if the online agreement they sent me is legit, surely it would of been rolled out everytime i asked each dca for my agreement and the last one would of started the court action against me? Seeing is ats been at least a year since my last payment to them

[steven4064]

Just checking.

 

Although it was done over the phone, it looks like it is effectively a 'paper' agreement and so they should be able to provide a proper copy.

 

Have you posted what they sent or could you if you haven't?

[wednesday1867]

Have you posted what they sent or could you if you haven't?

 

 

Yep, ive posted them in the order i received them on page 2 of this thread, posts 27,28 and 29

[steven4064]

The loan agreement in posts #29 and #30 looks properly executed to me as it is after April 2004 and conforms to the Consumer Credit (Electronic Communications) Regulations 2004.

[wednesday1867]

Thats what i dont understand, if thats the case, why did i get this email

 

Thank you for applying for an Egg Loan. We recently sent you a Loan Agreement. If you haven't already done so, please sign and return it as soon as you can, to complete your application.

 

Returning your Egg Loan Agreement

There's no time like the present, so why not sign and return your Loan Agreement now? Alternatively, if you've lost your Agreement and want a new one or you need any help with anything, then just give us a call on 08456

 

Also a DCA replied to me after several months saying Egg havent been able to supply the document. Also on Eggs secure site, there is an option to check any online agreements, i go on there and it says i have no on line agreements.

 

Its not uncommon for creditors to manufacture documents is it?

 

Ere dear just dont know which way to go with this..............

 

Steven, also if you dont mind, ive got some pocs for Cap One, its on Cap One forum, could do with an expert eye checking them over.

 

Thanks

[steven4064]

I don't know why they sent that e-mail or why there are no nlione docs. However, they claimed (post #23 ish) that the agreement was started on the phone and continued on the internet. The agreement in posts #29 an d#30 certainly supports that. If that is what was sent in response to a s77 request than I would say that they have provided an enforceable agreement and are within their rights to collect and issue a default.

[wednesday1867]

The email just shows to me and hopefully a judge that there should be a signed agreement somewhere.

 

I think the third document they sent me, is something they knocked up, to get me to start paying, i think if it was legitimate, The DCA would of got a hold of it and persued the debt.

 

Maybe i should just leave it for now and see what happens if anything.............

[Mistermind]

Thats what i dont understand, if thats the case, why did i get this email

 

Thank you for applying for an Egg Loan. We recently sent you a Loan Agreement. If you haven't already done so, please sign and return it as soon as you can, to complete your application.

 

Egg is a company with over 2 million cards. Postings in this forum are full of stories of non sequiturs from Eggployees, mis-triggered wrongly-selected Egg template letters, and replies sent without reading the questions, etc.

 

There were also overkill template letters, asking for documents just in case they were needed by Egg, without checking the permutations and combinations for the specific account in question. Going through the motions.

[wednesday1867]

Well i guess i will leave it upto Egg for now, the solicitors havent been back in touch since i asked them for a copy of the agreement, they were going to rely on in court.

 

Ive Cap One to have a go nad one last thing with MBNA, so i will leave it and see what if anything Egg come up with in the future.

 

Thanks for the advice.