Capquest and old Egg Banking CCJ from 2007

[Dwayne Dibbley]

Hi, i have received a letter from capquest to which i promptly sent back a CCA letter.

 

Here is there response:

 

http://x-centric.net/capquest1.jpg capquest letter

http://x-centric.net/capquest2.jpg egg card agreement front

 

back of egg card agreement shows my signature and date correct ( forgot to scan back )

 

what would be my next step? should i now send a Subject Access Request along with £10?

 

Many Thanks for all your help

 

Nigel

[Guest forgottenone]

Only learning so do be patient with me. But I can't see the credit limit in the agreement itself? Isn't that one of the prescribed terms?

[Dwayne Dibbley]

i see what you mean as they state:

 

3. Limit We will tell you from time to time the Approved Limit we have set and, if different, the Individual Limit which you have chosen for the Account

 

but no actual figure as you mentioned

[pelham9]

They either have to show the credit limit or tell you how they will tell you what is. So this is OK.

 

 

What about all those APRs in bold. They seem to be very keen on showing these. Perhaps they think the APR is a presribed term. It is not.

The prescribed term is the interest rate to be charged and this cannot be the APR which is an approximation or contains compulsory charges e.g. cash advance fees.

 

If you take out th APRs do you have a rate to be charged for each category. I think not. If not the agreement is not enforceable.

 

I think there is also a very real problem with accepting monthly rates as a prescribed term. The 1983 Regs require the interest rate to be charged to be shown

as an annual rate and I think it reasonable to argue that this applies to the prescribed terms as well.

 

As far as I can see in the post tranfer period you have three categorie of interest rates.

 

1)Purchases 1.019% monthly APR12.9%.

 

2) Cash APR15.2% only

 

3) Cheques APR15.2% only

 

The prescribed term interest rate to be charged is missing in 2) & 3). Is a monthly rate as shown in 1) sufficient as a prescibed term.

 

In 1) the actual rate charged is 12.937p.a. which is an APR of 12.9% so you see how they are using the allowed rounding of the APR to get a little

more out of you and why they do not wish to use the annual rate charged- this would give away their game. Curious that the APR for cheques is the

same as for cash despite the difference in the fee rate.

Edited August 4, 2008 by pelham9
Poated before finish by mistake

[Dwayne Dibbley]

SO are you saying this aggreement is not enforceable? if so what should i send to Capquest?

 

Thanks

[rippedoffagain]

I was of the opinion that APR was acceptable as the interest rate, for the prescribed term. I hope I am wrong, as I have just received the same from Egg.

[rippedoffagain]

I think this may make it improperly executed.

[pelham9]

Ok I will put the argument as I see it. I will deal with running account credit only.

 

Schedule 1 and Schedule 6 if the CCA Regs (1983)

 

Schedule 1 lays down a framework of how a CCA should be writtten. I have not seen an agreement yet which contains all the requirenents as in Schedule 1.

For instance the interest rate to be charged should be a per annum rate and the way this rate is applied should be shown. All credit cards have to have a monthly rate

as otherwise they could not calculate interest to be applied monthly. In order to calculate the monthly rate there must be a formula to do this from the annual rate

They never show this formula. Often they do not show an annual rate at all but only a monthly rate.

 

So if every agreement I have seen is improperly executed is it unenforceable? Judges are the ones who decide and it would seem

that the are unlikely to make an agreement unenforceable

on a 'technical' matter. So unless you can persuade a judge that errors in the agreement according to Schedule 1 are vital he will most probably side with the banks.

So although the requirements of Schedule 1 should be in agreements in practice the the banks are likely to get away with almost anything.

( I might add that judges are rarely mathematically adept and they do not understtand all the implicaions of what banks are doing).

 

 

Schedule 6.

 

This shows the prescribed terms. These are terms in an agreement which must be accurately shown.

If they are not there or inaccurate the agreement is not only improperly executed but judges are not allowed to make it enforceable.

Parliament has put a complete bar on making an agreement enforceable if the prescibed terms are missing or inaccurate.

 

It is vital to understand this difference between the two Schedules.

 

1) If Shedule 1 terms are inacccurate or missing though the agreement is improperly executed you will have to persuade a judge in a lomg

and difficult debate that he should make it unenforceable. You are not very likely to succeed.

 

2) If Schedule 6 terms are inaccuraate or missing the judge has no alternative to making the agreement unenforceaable.

 

In a running account agreement one of the prescribed terms is the interest rate to be charged.

There is no requirement in Schedule 6 that this should be an annual rate or that the method of application should be shown though of course Schedule 1 requires ths information.

 

APR - is this the rate to be charged?

 

No it is not because

 

1) It is an approximation. If the rate to be charged is say 16.949% p.a. the APR ia allowed to be shown as 16.9%

i.e. rounded to one decimal place This figure is not an accurate expression of a rate of 16.949%.

 

2) the APR is an expression to represent the total cost of borrowing. So if the rate to be charged is 16.949 and a fee of £100 p.a.

is also charged the APR will be very much higher than 16.949% so it cannot express the rate to be charged. This applies to cash advances and cheque use for he Egg agreement.

 

Though in most intances Shcedule 1 requires the APR to be shown the fact that the APR is not in the prescribed terms list in Scedule 6

means that if it is missing or inaccurate it is unlikely to matter.

 

The APR cannot by definition be the rate to be charged so if it is the only rate shown in any section of your agreement ( as it is)

a prescribed term is missing and the agreement is not only improperly exacuted but it is automaticlly unenforceable.

 

If I were you I would not immediately a challenge the enforceabiliy of this agreement with Egg/Capquest. I would simply ask the followig questions.

 

a) For purchases What is the rate to be charged expressed as a rate per annum?

 

b) for cash advances what is the rate to be charged expressed a

 

i) a rate per month

ii) a rate per year

 

c) for cheques , The same questions as in b)

 

Post up their answers which will almost certainly be evasive or incorrect.

[rippedoffagain]

This is of great interest pelham9, and I will look further into this aspect, also of note is the lack of Cancellation Notice, even though Egg are always internet based agreements,

and are electronically signed.

 

I know peterbard did a lot of research on this last year, but it is practically impossible to find the posts amongst the thousands on the CCA thread.

 

A further slight technical issue is the disclaimer at the foot of the agreement;

 

This agreement will only be binding on us when we have completed and are satisfied with our final checks and other searches

 

I believe this may fall down on section 59 CCA.

 

59 Agreement to enter future agreement void

 

(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

 

Edited August 5, 2008 by rippedoffagain

[Dwayne Dibbley]

So i should SAR egg to see what i get back and if no default has been served then capquest cant chase me?

 

Thanks

[rippedoffagain]

I should hold fire for a while, more input needed on this thread I feel. pelham9 has some good points, and there are a couple of technicalities I would like opinion on.

 

I think you will find that a DN has been issued.

[pelham9]

I would agree with ROF that you need to go slowly but still ask the questions of EGG.

 

I personally would like to see their answers and I would expect them to tie themselves in knots trying to answer. No need at present to say you think the agreement is unenforceable - just a friendly enquiry!!

[pelham9]

Rippedoffagain.

 

You will let us know you get from your consultations?

 

My posts above do contain points that are not very current in these forums. This may be a small break through which may be significant. Rather like the much bigger point that CCA agreements are unenforceable if there is no agreement or prescribed terms.

[BlueSquirrel]

Rippedoffagain - where are your quotes from in post 7 and 9? They are really useful and easy to understand. Thanks:)

[rippedoffagain]

1983 regs!

[BlueSquirrel]

Doh! Thanks for pointing a newbie in the right direction!

 

I had a Co op Visa card, first of all they reduced the credit limit for no reason, then when the card expired they did not issue a new one. When I queried this they said they had closed my account and each month the credit limit would reduce to the outstanding balance. I had no letter advising me of this and when I phoned, the snotty moo at the other end said it had been done because of the poor conduct of my account. Five late payments in 10 years!?! Incidentally the statement still shows the previous credit limit but I have no card!

 

Anyway, I am rambling now, but all I wanted to say was I had not thought of the point of the variation of agreement/new agreement/ reduced interest scenario so I will bring this up with them I think. Not that I expect any joy as whenever I write to Co-op I just get a letter saying they are looking into it nd will get back to me and after several like that, it all goes quiet!

[Dwayne Dibbley]

I would agree with ROF that you need to go slowly but still ask the questions of EGG.

 

I personally would like to see their answers and I would expect them to tie themselves in knots trying to answer. No need at present to say you think the agreement is unenforceable - just a friendly enquiry!!

 

What would i ask egg in a friendly enquiry?

[pelham9]

Yes a poor choice of words! - perhapse I should have said an 'innocent' enquiry.

 

Just write to them and ask for the various interest rates as I indicate in my post. I think it would be best if you do not say that you dispute the CCA at the moment.

 

Get their answers first - they are very likely to did the hole deeper.

[BlueSquirrel]

3.59 Do I have to state the APR?

Sch 1 paras 15 and 16 require that all credit agreements (other than those under which the total amount payable (TAP) does not exceed the total cash price) must state the APR in relation to the agreement. This must appear as part of ‘Key Financial Information’.

Quote:

8.13 Do I have to state the APR?

The APR is not included in the list of prescribed terms in Sch 6. This means that if the APR is missing or incorrect, the court is not precluded by s127(3) from making an enforcement order, provided that the rate of interest is stated if required (see Q8.6).

However, the agreement would be improperly executed (see Q1.19), and so would be enforceable against the debtor only with a court order. S127(1) requires the court to dismiss an application for an enforcement order if it considers it just to do so, having regard to prejudice caused to any person by the contravention in question and the degree of culpability

Quote:

8.8 How must the rate of interest be expressed?

The interest rate must be expressed in the manner required by Sch 1 para 10, as amended, if the agreement is to be properly executed. Under Sch 1 para 10(2) if there is more than one rate of interest on the credit to be provided, the agreement must indicate all the rates applicable together with details of when each rate applies – see Q3.34. All rates must be quoted on a per annum basis – see Q3.39.

However, Sch 6 was not itself amended by the 2004 Regulations, and in the OFT’s view there was therefore no extension of the categories of absolute unenforceability. As such, agreements may satisfy the ‘prescribed terms’ requirements of Sch 6 even if they do not also meet the new standards imposed by Sch 1 para 10(2). Failure to meet those standards will render the agreement improperly executed, and so enforceable against the debtor only with a court order, but will not in the OFT’s view make it wholly unenforceable.

 

Sorry to be a thicky, but where are these bits actually quoted from, I couldn't seem them on the link you sent me, that seemed to be the actual act rather than the plain English version. Thanks

Edited August 7, 2008 by BlueSquirrel

[rippedoffagain]

Consumer Credit (Agreements) Regulations 1983 as amended by the 2004 Amendment Regulations

Prescribed terms.pdf

[BlueSquirrel]

Thank you

[pelham9]

Rippedoffagain.

 

Surely some of the quotations you give in your posts are not from 1983 regs but from OFT's interpreation of it? The oft is by no means infallible.

[BlueSquirrel]

DD, have you asked Egg if they hold the original agreement. I did and they said they DID NOT as they had scanned the information for easier access. Also the FSA did not require them to keep the original. ( Not sure what that has to do with anything.)

[rippedoffagain]

Its the OFT that draft the regulations as far as I know. The quotes are from Consumer Credit (Agreements) Regulations 1983 as amended by the 2004 Amendment Regulations, question and answers. I understand these to be an in depth explanation of the regulations designed for use by the industry.

[pelham9]

No OFT are regulators -they do not draft the regulations which come via the Secretaryy of State and Parliament.

 

a) In advertising the APR can be shown 0.1% below or 1% above the calculated APR - the correct APR. This is the 'extended' APR and must be designated %APR . So in adverts if the APR is calculated as 15% it is permissable to use APR 15% but %APR 14.9 or %APR 16 if an advertiser so wishes. (why would he though?). The OFT documents make no mention of %APR.

 

b)In agreements however the APR must be shown correctly if it has to be shown. Schedule 1 Of 1983 Regs say that the APR must be shown in all types of agreements. However Schedule 7 1A says

 

For the purposes of these Regulations, it shall be sufficient compliance with the requirement to show the APR if there is

included in the document--

(1) a rate which exceed the APR by not more than one; or

(2) a rate which falls short of the APR by not more than 0.1;

 

so the APR does not have to be shown if one either (1) or (2) are true. The other rate cannot be the APR . These tolerances do not affect the value of the APR but whether or not it has to be shown.

 

OFT have got it wrong again.

Edited August 10, 2008 by pelham9
Posted in error before finished