Moobelle vs Egg

[moobelle]

Right I was one of the people who Egg chose to summarily terminate their legally bonding agreement with earlier this year. I've been mulling it over and have finally taken action (many thanks for all advice I have received on here which has helped crystalise my thoughts...)

 

So SAR 'd egg two weeks ago - received all statements on 6th and replied as below

 

Dear Sir/Madam,

 

ACCOUNT NUMBER: XXXX XXXX XXXX XXXX

 

I am writing to ask you to refund to me bank charges and related interest which you have levied from my account over the last three years.

 

The High Court has recently decided that your charges are subject to the Unfair Terms in Consumer Contracts Regulations 1999. I consider that the regime of bank charges you operate is unfair within the meaning of these Regulations as they are not individually negotiated, they operate in much the same way as charges operated by other High street banks and therefore there is little alternative to myself but to agree to the charges. Furthermore the charges are contrary to the requirement of good faith and fair dealing as they lack basic standards of commercial moral practice and take an unfair advantage of the weak bargaining power of the consumer. They impose a significant imbalance in the rights and obligations between the contracting parties which is to my detriment. I also consider that the charges may be unlawful at common law.

 

Your responsibilities

 

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law. Furthermore you are bound by the Banking Code to treat your customers fairly and it is evident that you do not so.

 

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise.

 

I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them.

Your concealment of the true nature of your charges has prevented me from asserting my right until now.

 

What I require

 

I calculate that you have taken £456 plus a further £56.29 which you have charged me in overdraft interest for the sum which you have taken. Total £512.29.

I enclose a schedule of the charges which I am claiming with this letter.

 

My targets to resolve this matter

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets.

 

I am fully aware of the waiver which you are presently relying upon and which was granted to you by the FSA. However, this is an internal industry matter and has nothing to do with me. It is one-sided and I note that you continue to levy charges and to enforce them despite the weight of judicial and popular opinion against you.

 

I will give you 14 days to reply to me accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment. Furthermore as you have chosen to terminate my contract with you despite no default on my account, I will not accept the refund of these penalty charges plus interest to my terminated EGG account – the refund is only acceptable via BACS to my bank account or by Cheque posted to me at the address above.

 

If you dispute that I am entitled to a refund of these charges, then please let me know within the above timescale the basis upon which you dispute together with the reasons why you consider your charges to be fair.

 

If you do not respond, or you do not respond positively, within this time period, I shall send you a letter before action giving you a further 14 days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

 

After that, there will be no further communication from me and I shall issue a claim at the expiry of the second deadline.

 

 

Yours faithfully,

 

 

Moobelle

 

Sent copies via egg stupid unsecure system and hard copy by post. Also sent the below again by stupid egg sysytem and by post.

 

Dear Customer Details Team

 

Account: XXXX XXXX XXXX XXXX

 

I am in receipt of the documents that you have supplied in response to my Data Protection Act information request. The disclosure of personal data is incomplete in that at least the following documents are missing.

 

1) There is no copy of my original credit agreement with you.

2) There is no signed copy of an application form for repayment protector.

 

This is not an exhaustive list by any means, it is just an example of some of the information I am missing.

 

Accordingly, I have to tell you that you have not yet complied with your obligations under the Data Protection Act 1998.

 

I did not write asking for copies of my statements as your letter dated 4th June would imply ? I asked for full disclosure of all documents relating to my account with you.

 

Yours faithfully,

 

 

Moobelle

 

Have recieved following via stupid egg system re SAR non-compliance

 

Dear Moobelle

 

I've forwarded your message onto Customer Details Team they'll get back to you with an answer shortly.

 

In the meantime, please make sure that your contact details are up to date so we can get in touch with you straight away. To do this log in to New Egg Home and then:

 

* Go to 'Personal details' tab on the 'Your money' page.

* Select the relevant option for the details you'd like to change.

 

If your details are up to date, you needn't do anything and they'll contact you shortly.

 

If you have any further questions, please contact me and I'll be happy to help.

 

Thanks for your message.

 

Regards

 

Sonia Webb

Internet Customer Services

 

 

and this re prelim letter

 

Dear Moobelle

 

The agreed confines of your Egg Card must always be maintained. Any point your Egg Card account goes over it's agreed credit limit an overlimit charge will be applied to the statement following the transgression.

 

Interest is a valid charge to your Egg Card account and if this takes the account over the limit then this also means that you'll incur an overlimit charge.

 

If you wish to check the Egg Card terms and conditions, just follow the link I've provided below;

 

new.egg.com/visitor/0,,3_33970--View_1070,00.html

 

Thanks for your message.

 

Regards

 

so so so so my cunning plan is

 

1) wait for sensible response to prelim and do the normal and yes of course I will get it back - will follow the route taken by good threads on here

 

2) Bank money

 

3) Cancel direct debit presuming CCA doesn't turn up.....

 

4) Ignore their letters and make F + F offer to them as debt will be unenforcable

 

 

is this a good plan?

 

Any better suggestions anyone?

[Mistermind]

The Test Case verdict now referred to appeal refers to bank charges, whereas you are reclaiming credit card penalty charges, an entirely different case based on the entirely different legal precedent of Dunlop-v-Garage. Your letters contained so many legal errors and inaccuracies it would be surprising if Egg was not emboldened to resist your reclaim whereas other claimants sending a simple straightforward template letter proven to be a winner have achieved full refund plus interest within the week. See several recent examples in V-E thread in Egg Stickies section at the top of the Egg Forum. If you choose to file a court claim along the lines of your letter Egg barristers would be more than likely rubbing their hands to face you in court.

 

Egg took penalty charges plus interest accrued on them out of your Egg Card account, so it is hard to see why they should not be allowed to refund back into the same place if they so choose.

 

As for the contingency IF Egg cannot produce your CCA, this debt is not legally invalidated or wiped out. It simply remains unenforceable at law for as long as a valid CCA is not produced by Egg. However the debt will become legally enforceable again together with interest accrued during the wait, if at any time Egg manages to find your CCA -- assuming Egg have at present misplaced or lost it at all. A Mod will no doubt advise you on a template letter to send, where an explicit CCA requrest has not been complied with within the legal deadline.

 

Not paying but relying on an awol CCA is like sitting under the sword of damocles hung overhead by a thread. A thread which could break at any time.

 

Good luck with your charges reclaim.

Edited June 9, 2008 by Mistermind
typos

[dpick]

Hi just to add to mistermind's post if they cannot produce an enforceable agreement and you have written to them to say you do not acknowledge the debt then they have six years from the date of your letter to produce an enforceable agreement before the debt is statute barred.

 

dpick:)

[moobelle]

Thanks dpick.

Mistermind - my letters were taken from winning claims and cut and pasted - so am unsure why these are have so many legal inaccuracies - have I dropped a clanger? Should I re-write just using basic template? Oh god .......

 

Moobelle

[moobelle]

Have just re-read and yes I've ballsed up using wrong letter - should I await response or re-write now???

[Mistermind]

If you have merely written to Egg then no matter, write again starting from the correct credit card template letter as if you never sent the first wrong letter. If Egg have not labeled your claim as a weak adversary picked out for special attention, they will refund with minimum resistance the way they have done 95 times.

 

Legal documents are precise in order to be meticulously fair to both sides, and no judge is under any obligation to help correct elementary mistakes made by an underprepared litigant. Credit card reclaimants have been known to have their cases stayed pending the Bank Charges Test Case verdict, simply because the CC N1 form erroneously contained the phrase "bank charges" instead of "credit card penalty charges". An unintentional clerical mistake -- but how do you overturn the fait accompli of a judgment passed? Some amateur litigants have been known to appear before a judge, and if unlucky have been told sharply, "If you want to play lawyers, then first learn the ABC of law."

[moobelle]

Very fair point - I'm been trying to do too many claims at same time and think need to slow down and use less haste!!!

 

Will re-write using CREDIT card template letter.

 

On CCA note - got home to two copies of my signed agreement last night so will try and figure out how to put it on here to get some advice.

 

Many thanks for your help - am not normally such a dimwit - just in throes of panicking re shall I go bankrupt or not which doesn't lead to a clear head for doing this type of thing......

[moobelle]

After batting back and forth (and using correct template letters) Egg have come back to me this am offering full refund of all charges plus interest.

 

However as my egg card account has been terminated I don't want this money put into my egg card account as I really need the money in my hands as it were.

 

Eggs reply re this is as follows.

 

'Please note - I have read your secure message and note your request for payment either by cheque or BACS. These methods are not an option where a credit to an account is concerned with a debt outstanding. Yes, your agreement has been terminated but as you still have an outstanding balance then you will not have been made out of pocket by these charges. The charges are still on the account within the balance so any credit will be made to the Egg card account.'

 

I know other people have successfully got Egg to pay the refund back to them rather than the credit account but I can't find specific letters or arguments relating to this. Can anyone point me in the right direction so I can prepare a good argument as to why the money should come to me rather than the Egg account?

 

Many thanks in anticipation....oh and also they are saying this offer is only open for 14 days so I do need to get onto this very quickly!

 

Moobelle

[Mistermind]

moobelle, I take it your card was one of 161,000 terminated? Egg caused terrible ambiguities and arguments with their injudicious use of words. I understand they keep the account open to receive monthly minimum payment and even to accrue debit interest by computer, but have withdrawn credit card facilities. Their T&C in black and white described this situation and they believe they are legally entitled to debt repayment, and legally entitled to terminate purchases and cash advances facilities.

 

If you accept that, then the account is remaining open, only the traffic is one way now -- cardholder pays Egg. As the penalty charges are still lying in your account unrepaid by yourself, it seems hard to argue against Egg's position that if the debit was levied on the account, then their refunding credit is entitled to be repaid into the same account, effectively cancelling out the previous levy. If you could find Egg T&C saying that all monthly payments go to repay penalty charges and debit interest first, and only then purchases and cash advances, then you could try the argument that you already have repaid the penalty charges and accrued debit interest, and that your present debit balance is due to subsequent purchases. Still not sure that would be a convincing argument.

 

I believe the minority of cases where Egg refunded direct to the cardholder were cases where the account was closed then legally sold to a third party DCA, and no further monthly payments could be credited to the Egg account which was no longer accessible as a functional account on computer. In this scenario Egg could not be sure of avoiding legal complications if they paid the DCA direct (in any case what does Egg care about the DCA's finances?), since their liability remained towards the cardholder. If this were not the case, hopefully someone will read this post and comment.

 

Or you could click SEARCH, ADVANCED SEARCH, search for say "direct" or "cheque" in the text of any thread, and specify EGG FORUM only. Hopefully this will return a small number of postings containing phrases like "direct into my bank account", or "refund with a cheque to me".

 

Good luck.

Edited July 19, 2008 by Mistermind
typo

[moobelle]

OK I have read every successful EGG thread and there seems to be no convincing argument re them paying the refund back to me rather than the terminated egg account.

 

So I shall accept the offered refund (in full and with interest) and move on to the next battle ...... I will of course donate when I win the next one but as can't reach the egg refund I can't at the moment - will do double after next successful claim.

 

Please can thread be moved to WON - god nice feeling!!!!!

[Mistermind]

Well done winner number 96,

a fair wind for your other reclaims.