Egg Credit Card Debt

[blueboy987]

Thread moved as requested

 

Many thanks.

 

No update yet, still waiting to hear the judge's judgement.

 

I was just reading their witness statement again and they're still up to their usual tricks. When they wrote to me notifying me of their change to the POC, in their new POC they made a new mistake - missing one of the digits of the account number. As part of their witness statement they included a copy of their amendment letter and amazingly, the missing digit has now magically appeared!

[blueboy987]

I've received an order from the court stating that I must file a new and fully pleaded defence by 4pm on the 31st August. As far as I am concerned I am still not in a position where I am able to file a new defence due to the ongoing confusion regarding the POC.

 

As I stated above, the original POC contained an error and the claimant sent me a notice of amendment - which I believe is invalid. In their recently submitted statement to the court they included a copy of this amendment, which they had amended again - so there is now 3 different POC's.

 

In my allocation questionnaire I requested that the judge make a ruling on the POC, as to which is valid and which I need to defend but no such ruling has been made.

 

I'm guessing I need to make an N244 application to the court to ask for the judge to rule on this but am not sure how this should be worded. Can someone point me in the right direction, or get me started on it?

[blueboy987]

I filed my application to the court, basically asking for the judge to rule which of the three POC's the claimant has come up with is valid and should be defended. I was expecting an order stating which was valid (most likely the latest one, from their witness statement) or possibly an order for the claimant to submit a proper POC amendment but it was neither.

 

Instead, there is to be an application hearing. Is this good or bad?

[blueboy987]

My application hearing is in the morning, does anyone have any words of wisdom that might help me as I've never done this before.

 

I'm a bit concerned the judge might not view my application favourably and think I'm playing for time or being argumentative. But I still think that when a claimant comes up with 3 different POC's, the defendant is within his rights to get clarification from the judge as to which one is valid.

 

On the other hand, is it possible the judge has taken a dim view of what they've done and things will go 100% in my favour? Any chance he would throw their claim out? Should I make a big thing of them altering the POC in their witness statement?

 

Any advice would be greatly appreciated.

[blueboy987]

I'm back from court and it went well, I think. The judge has given them two weeks to serve a new POC or the original from the claim will stand. I then have four weeks after that to serve a new defence. A few points;

 

- They asked the judge to assign the case to small claims, due to it being based on a consumer credit agreement, which the judge seemed surprised by given the claim is for £1x,xxx. I was asked if I agreed to this, I got the impression it was a good thing from my point of view, so I agreed - was this a good idea? I'm also curious as to why they requested this, is it possible they want to limit their own costs in the event they lose the case?

 

- I tried playing dumb as to my knowledge of the law in cases such as this, which the judge didn't buy for one second based on the way I'd represented myself. I replied I'd just spent a lot of time researching the claim, which is the truth.

 

- The judge didn't view the error in the account number as being an issue, but the original error with whom the agreement was with was an issue. So I was a bit surprised when he ordered a new amended POC to be served.

 

- I got a bad overall feeling from the judge, as he made numerous references to the costs I could incur if I lost the case - especially on fast track, but also potentially under small claims (if it was deemed to have acted unreasonably). I was asked as to what my defence would be, which I tried to avoid and vaguely mentioned the invalidity of the agreement. It kind of came across as the "if you borrowed the money you have to pay it back no matter what" stance that comes up far too often. Their solicitor said the same to me afterwards.

 

- Finally I made a rookie mistake, do not drink coke in court, stick to the water.

 

Time to start work on my defence, is there are good starting points for an Egg 1999 agreement?

[Ron 2015]

Well done Blue.

 

I have read many threads on here where the judge seems to favour the banks and takes little or no interest in the actual case laid out before him.

 

I am far from being an expert but I think if you present the case in small logical steps , proving each one as you go with case law.

 

I have been a juror several times and seen guitly people walk away free from horrendous crimes because the evidence was presented incorrectly by the CPS. The defendants Barristers get hold of a point and will labour on about it , like a dog with a bone or until the judge tells him to move on.

 

Then the jury gets kicked out and then returns and the judge tells us to find not guilty , no choice , all on one small technical point!

 

So I would labour on and on about the approved limit / credit limit error until the judge tells you to move on , just to make sure he knows the agreement must have the words credit limit in it and not approved limit.

 

Unless they challenge one of the points then they have to rule in your favour.

 

All I could find on the Egg 1999 agreement was the Approved Limit error.

 

Did they issue the default notice correctly? This is always worth checking.

 

It is really weird that they wanted to move it to small claims , I cant see why apart from the costs issue. Maybe they are scared!

 

Good luck Ron

[egg-sterminator]

I'm back from court and it went well, I think. The judge has given them two weeks to serve a new POC or the original from the claim will stand. I then have four weeks after that to serve a new defence. A few points;

 

- They asked the judge to assign the case to small claims, due to it being based on a consumer credit agreement, which the judge seemed surprised by given the claim is for £1x,xxx. I was asked if I agreed to this, I got the impression it was a good thing from my point of view, so I agreed - was this a good idea? I'm also curious as to why they requested this, is it possible they want to limit their own costs in the event they lose the case?

 

- I tried playing dumb as to my knowledge of the law in cases such as this, which the judge didn't buy for one second based on the way I'd represented myself. I replied I'd just spent a lot of time researching the claim, which is the truth.

 

- The judge didn't view the error in the account number as being an issue, but the original error with whom the agreement was with was an issue. So I was a bit surprised when he ordered a new amended POC to be served.

 

- I got a bad overall feeling from the judge, as he made numerous references to the costs I could incur if I lost the case - especially on fast track, but also potentially under small claims (if it was deemed to have acted unreasonably). I was asked as to what my defence would be, which I tried to avoid and vaguely mentioned the invalidity of the agreement. It kind of came across as the "if you borrowed the money you have to pay it back no matter what" stance that comes up far too often. Their solicitor said the same to me afterwards.

 

- Finally I made a rookie mistake, do not drink coke in court, stick to the water.

 

Time to start work on my defence, is there are good starting points for an Egg 1999 agreement?

Blue boy you have not hade much help on this . Will try to steer some big guns your way . Your argument needs to be is there a signed CCA not agreement and the other points about egg eg approved limit/limit . There is a case in cardif crown court in march which may set a precedent . PT has won 5 cases on the limit/approved lmit issue and is your man if you can get hold of him . You say you had a termination letter and DN could you post them up as this is another way you may be able to win ie a faulty termination and a termination are a possible way they could have shot themselves in the foot .

[blueboy987]

I thought I had a default and termination notice, but I can't find them at present - they're most likely in a box of paperwork as things got a bit of a mess for me at one point. But I sent a SAR to Egg and I can't see any trace of these notices being issued in the transaction logs that they supplied, which along with the notices not being submitted to the court will hopefully give me one strong line of defence.

 

I'm aware of the Egg approved limit test case, which I'll obviously be following keenly. Only slight problem is that it is scheduled for the same month as my case but I'll worry about that closer to the time. I'd be very happy if it just gives me a reason to get my case stayed pending the outcome.

 

I've got a few other lines of defence that I've picked up from other threads. I'll sit down soon and knock up a defence and post it for feedback, along with copies of all the relevant documents I have.

 

First thing though is they've got to serve an updated and correct POC and given their track record it won't surprise me if they miss the deadline. If they do, their original and totally incorrect POC will stand along with my original defence and then it will be a straight forward win for me.

 

Another issue I need to look in to is whether Egg have breached the data protection act, as they have in effect continued to process my data after selling the account to CL Finance. It might not directly help me with the case, but anything to cause as much trouble for them as I can will be a bonus.

[egg-sterminator]

I thought I had a default and termination notice, but I can't find them at present - they're most likely in a box of paperwork as things got a bit of a mess for me at one point. But I sent a SAR to Egg and I can't see any trace of these notices being issued in the transaction logs that they supplied, which along with the notices not being submitted to the court will hopefully give me one strong line of defence.

 

I'm aware of the Egg approved limit test case, which I'll obviously be following keenly. Only slight problem is that it is scheduled for the same month as my case but I'll worry about that closer to the time. I'd be very happy if it just gives me a reason to get my case stayed pending the outcome.

 

I've got a few other lines of defence that I've picked up from other threads. I'll sit down soon and knock up a defence and post it for feedback, along with copies of all the relevant documents I have.

 

First thing though is they've got to serve an updated and correct POC and given their track record it won't surprise me if they miss the deadline. If they do, their original and totally incorrect POC will stand along with my original defence and then it will be a straight forward win for me.

 

Another issue I need to look in to is whether Egg have breached the data protection act, as they have in effect continued to process my data after selling the account to CL Finance. It might not directly help me with the case, but anything to cause as much trouble for them as I can will be a bonus.

was it a DCA that issued a DN ? it wouldnt be in SAR from egg if a DCA issued it . On data protection Vint1954 is the man look for his thread cra's and oc's -credit ref reporting-discussion . The DN and termination could be very important .

[blueboy987]

I managed to get my dates confused and have only just realised I need to get a defence filed on Monday. Can anyone point me to some threads that have got defences that I could use as a starting point?

 

My card is with Egg and the agreement dates from 1999, I'll post the CCA and witness statement up later this evening. Its one of the "approved limit" agreements so I've got that argument, they also haven't come up with the default notice and the Egg transaction logs suggest it was never issued.

 

I'm wondering whether I should be arguing the amount they are claiming, as it doesn't match up with the statements plus they haven't submitted a complete set of statements. Is this something worth arguing?

 

Any other pointers or suggestions would be greatly appreciated.

[blueboy987]

Scans of the CCA;

 

[blueboy987]

The particulars of claim;

 

[blueboy987]

Their witness statement:

 

 

**EDIT** I've removed the second page as it contained some personal information that I missed. Not important though as there was nothing of relevance on the page.

Edited December 21, 2009 by blueboy987

[blueboy987]

I'm getting desperate for some help with the defence. Some links to other threads with defences for Egg card would be greatly appreciated, I've found one which is a start but it doesn't cover all the points I need to.

 

I could especially do with some help with the approved limit issue, not found anything on how to argue this in the defence.

[blueboy987]

I've just finished my defence and would appreciate any comments as I'm still a bit unsure about the whole thing. I've deliberately kept it simpler than others I've seen with the aim of broadly covering my arguments, with the intent of going in to detail on the witness statement.

 

This amended defence is submitted following the order of District Judge XXXX dated XXXX November 2009.

 

I XXXX am the Defendant in this action and make the following statement as my amended defence to the claim made by CL Finance Limited (“Claimant”).

 

Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimants Particulars of Claim and put the Claimant to strict proof thereof.

 

In order to prove its claim the Claimant must establish a number of matters;

- That there was a credit agreement between myself and Egg Banking Plc and that such an agreement complied with the requirements of the Consumer Credit Act 1974 (“The Act”) (and all consequential regulations made there under) both at the date of inception and all times thereafter.

- It must establish that Egg Banking Plc complied with the provisions of The Act in that it must show that it served a proper default notice upon myself prior to terminating the agreement and prior to commencing proceedings.

- As the Claimant is not Egg Banking Plc they must establish that there was an “absolute assignment by writing under the hand of the assignor” (S139(1) Law Of Property Act 1925) and that proper notice of any such assignment was given to the defendant (S196 Law Of Property Act 1925).

- That the sums claimed are correct and lawfully owing both at the date of the alleged assignment and at all other times.

 

It is submitted that it is the obligation of the Claimant to prove all of the above matters.

 

It is submitted that the credit agreement falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement and / or are in a separate document entitled Egg Card Conditions. The prescribed terms must be within the agreement for it to be compliant with Section 60(1) The Act. The Court’s attention is drawn to the authority of the House of Lords in Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40 and Dimond v Lovell [2000] UKHL 27; [2000] 2 All ER 897. Both of which confirm that where an agreement does not contain the required prescribed terms under The Act and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) it cannot be enforced.

 

For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must first serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 and, in accordance with section 88(1), it must be in the prescribed form. The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the prescribed form for such a Default Notice. The particulars of claim refer to a Default Notice served pursuant to section 87(1) though no copy of this was included with their claim or witness statement and the Claimant is put to strict proof that such a notice in the prescribed form was served and is valid. See Woodchester v Swayne [1998] EWCA Civ 1209.

 

It is denied that any notice of assignment was served by either the Claimant or the original creditor and I put the Claimant to strict proof thereof. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956]. The defendant requires sight of the deed of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the Claimant a legitimate right of action in their own name since it appears this is an assigned debt. The reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents, the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169.

 

The claimant has failed to substantiate the sum of money being claimed. The amount claimed differs from the sum shown on the final statement they have supplied as part of their witness statement and there is a substantial difference between the sum being claimed and the transactions listed on the supplied statements. There are also a number of charges on the statements not covered by the credit agreement and changes to the interest rate charged not covered in the credit agreement or not notified in accordance with the credit agreement.

 

It is denied (if it be alleged) that the Defendant is seeking to find “technical loopholes” to avoid alleged liability to the Claimant. On the contrary, in the cases and authority quoted within this defence, it has been confirmed that a lender who wishes to enforce a term of it’s contract before the court should first make sure that the contract strictly complies with the requirements of the law – in this case the The Act and associated Regulations.

 

In light of the above, it is not admitted that I am indebted to the Claimant as alleged or at all.

[blueboy987]

I submitted the defence as per my previous post. I could still do with some advice as to whether I made any glaring mistakes and if so, what I can do to correct the situation.

 

Next step is the witness statement which I'm going to start work on now, to save any last minute panics (again). One problem I've got is a lack of copies of documents from CL Finance, I've posted everything there is bar the statement and assignment notice (which was from CL Finance rather than Egg).

 

So I don't have the default, termination or assignment notices. I'm not sure if there is any way I can go about getting them prior to having to submit my witness statement as the case has been allocated to small claims - so the normal CPR disclosure rules do not apply.

 

I'm guessing its possible I won't see them, or find out if they have them, until the court hearing or if they submit a new witness statement. Either way, it will obviously put me at a disadvantage and will make things a lot more complicated.

 

Is it worth making an application to the court for disclosure, in the interests of streamlining the court hearing and to prevent adjournments?

 

Any advice appreciated.

[blueboy987]

I need to get my witness statement filed early next week, I've set aside the weekend and Monday to work on it. I'm at a bit of a loss as to what should go in to my witness statement - Is it refuting their witness statement? Does it need to go in to detailed case law? Do I bring my own arguments in to it? Do I have to file other papers with it?

 

So I could really do with some help. Some links to other witness statements would be a help, suggestions as to what to search the forums for, anything like that. As I said, I've got the time set aside to do it (and don't need anyone to do it all for me) but I don't really even know where to start at present.

 

It's been 10 weeks since anyone else posted on the thread and it feels like I'm talking to myself. I appreciate everyone is busy with their own stuff, but I really, really need some help.

[supasnooper]

Have look here for tips on Witness Statement construction -

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1903956.html

 

WS link - http://www.consumeractiongroup.co.uk...t-2739720.html

 

Exhibit cover link - http://www.consumeractiongroup.co.uk...t-2639218.html

 

 

I'd also have a peek at this thread as I notice that you have an "Approved Limit" - http://www.consumeractiongroup.co.uk/forum/legal-issues/188093-egg-credit-agreements-what.html

[blueboy987]

Many thanks, a few questions:

 

I notice the links you posted refer to opposing a summary judgement, rather than for an actual court hearing (which I need). Does this matter, or would they both be similar in form and content?

 

The defence I submitted was somewhat short and didn't include all the points I want to raise specifically, nor did it reference all the law / case law I'll need to refer to. Is this a problem? Should I bring them all in to the witness statement? Or can I raise them at the court hearing?

 

Do I need to submit full copies of all the law / case law that I refer to in the witness with it in the bundle?

 

Will the judge bear in mind that I'm an LIP and am out of my depth?

[supasnooper]

Your Witness Statement is unique to your case which you will know far better than anyone else.

 

The links I have posted are to be used as a guideline for you to follow as they are relevant - please re-read the pt2537 guide to WS's.

 

You only need a copy of the relevant part of the law but a complete copy of the case law.

 

Judges should be aware that you are a LIP but how they apply this is down to their individual character.

[blueboy987]

Due to my incompetence I never got the WS filed but the court hearing went ahead without it (and it being missing wasn't even mentioned) and despite even more incompetence on my part in preparing for the hearing (it took a lot longer than I thought it would and I didn't have time to fully prepare) I won.

 

I repeat, I WON!!!!

 

The judge dismissed all of my arguments except for one, the default notice, but even then it was a very close call and I believe I won in on one single technical point. I'll post up more details in a few days as there were a number of interesting points worth sharing which others will find of use.

 

One thing I will say now is that when summing up and ruling in my favour the judge made a somewhat scathing attack on me, saying he was extremely displeased at having to rule in my favour and that having to allow me to get out of a debt I had incurred on a somewhat minor technicality left a bitter taste in his mouth. Or words to that effect - it was pretty strong stuff.

 

Part of me wanted to explain to the judge what a low life bunch of **** Howard Cohen, CL Finance and Lewis Debt Recovery are and the means they use in recovering debt and that he should do some research in to them before attacking someone that was strong enough to stand up to them. But obviously I thought better of it, took the verbal, and left.

 

Unfortunately it's unlikely to be the end of it as their solicitor said they'll just serve a new default notice and the whole process will start all over again. Though to be honest, I'm kind of looking forward to another battle with them.

[MadScouser]

Keep a copy of their witness statement, which states they terminated the agreement, a default notice can only be issued against a live agreement

[blueboy987]

Keep a copy of their witness statement, which states they terminated the agreement, a default notice can only be issued against a live agreement

 

I'll be keeping my copy of their witness statement safe, plus it has all been scanned so I've got a backup copy, but I can do better than that as I've still got the original letter terminating the agreement.

 

Not sure how strong a defence that is to another default notice being issued, I've seen a number of other threads on the subject and haven't seen anything definite - though I haven't read them thoroughly yet.

[MadScouser]

I'll be keeping my copy of their witness statement safe, plus it has all been scanned so I've got a backup copy, but I can do better than that as I've still got the original letter terminating the agreement.

 

Not sure how strong a defence that is to another default notice being issued, I've seen a number of other threads on the subject and haven't seen anything definite - though I haven't read them thoroughly yet.

 

 

Pretty sure some of the big guns will confirm my thoughts, that the wording of a default notice relates to a live agreement. They admit they have terminated, you have accepted termination by defending court action, unless you agree to a reinstatement of the original agreement there is nothing to default you against.

They could potentially, I believe , chase you for the default amounts outstanding at the time of the original default, but you could also chase them for illegal termination of the agreement.

[Series3]

congrats, I would not have been able to hold my tounge if I were verbally attacked even by a judge..

I do hope you claim costs for your time researching and writing.

can't wait to see the details.

 

series3