Viscount Stair vs Egg (Loan)

[Viscount Stair]

OK - this one has run away with me, so I'm further down the line with this one than I thought I would get quicker than I thought I would get there.

 

I had an Egg Loan, an Egg Card and an Egg Money card. They all have different issues involved, so I'll try to separate the threads for each.

 

This one is about the Loan.

[Viscount Stair]

Having tried to keep the show on the road as long as possible after ill-health and redundancy, I wrote to all of my creditors (of whom there are far too many) explaining the situation and offering a nominal payment pending an improvement in my situation.

 

There has been a pig-headed battle between me and Egg whereby their standard response is to say phone us and I write back explaining that I can't because I get very agitated in stressful situations. (The one time I did try phoning the call ended with me having a panic attack, throwing the phone at the wall and shaking afterwards.)

 

Egg agreed to let me write in with income and expenditure details, which I did and they ignored.

 

I got a Default Notice, which I queried as to the amount. Egg have refused to answer the query.

 

I complained to the CRO, who rejected the complaint (and ignored most of it).

 

Drydens became involved. I wrote to them. I used the National Debtline template referring to the overriding objective and the pre-action protocols PD.

 

Drydens have now told me that they have instructions to press on regardless with court action.

 

There are discrepancies in the figures being bandied about but Egg and Drydens are refusing to provide any details.

 

As matters stand, I am assuming that I will get an N1 for a Christmas Card.

 

I am not trying to evade liability but I am not currently in a position to make more than a nominal payment and I have become willing to clutch at razor blades, let alone straws.

 

I have put them on notice about costs for acting unreasonably. I have threatened a counterclaim under the DDA. I have also told them that I will put them to proof as to the amounts involved.

 

Is my best course of action just to accept a CCJ (which would hamper my ability to get a new practising cert to get back to work to pay these guys, nice one!) and apply for an instalment order?

 

Can I challenge on costs and the DDA and still apply for a time order or an instalment order in the alternative?

 

If so, is that going to just make the size of the eventual CCJ bigger?

 

Thanks to this site and the support of fellow CAGgers, I am feeling quite empowered on Amex and have known how to fend off MBNA but I have got to my wits' end on this one.

 

Mrs VS is also quite cross with me for having tried to deal with all of this on my own for too long and got myself into a bigger mess. She may have a point!!!

 

I need some practical advice on this one. I can find my way around the legislation but the procedure and the practicality are flummoxing me.

 

Thanks in advance.

[Viscount Stair]

Two additional thoughts:

 

The amount of the arrears on one of the new Arrears Notices Egg sent me does not correspond to the amount of arrears that was specified in the Default Notice. I raised this with Drydens and have been told that new notices will be issued. These have not arrived yet, so I don't know if they are just resending a "corrected" Arrears Notice or if they will try to issue a new DN.

 

Also, I had another look at the DN last night and, although this is a personal loan, the DN doesn't specify an early settlement figure for the loan. Is this because the way Egg calculate the interest on the account means that this is not treated as a fixed sum agreement? If so, shouldn't they have been providing statements? If not, does this mean the DN is invalid?

 

Is there anything to any of this or is it just wishful thinking on my part?

[steven4064]

VS

 

Have you posted the agreement anywhere. If not, could you (personal details removed of course)

[rory32]

The amount of the arrears on one of the new Arrears Notices Egg sent me does not correspond to the amount of arrears that was specified in the Default Notice.

An arrears notice and a default notice are not the same thing. An arrears notice would simply inform you that you are in arrears where as a default notice would inform you that if you do not pay the outstanding arrears by a certain date then the agreement will be terminated. The agreement needs to be terminated before legal action can be taken. They can not issue a second default notice where the agreement has already been terminated.

 

Also, I had another look at the DN last night and, although this is a personal loan, the DN doesn't specify an early settlement figure for the loan.

It wouldn't. It would identify the action that you need to perform in order for the agreement not to be terminated i.e. the arrears that are required to be paid and by what date.

 

If not, does this mean the DN is invalid?

 

The default notice may be invalid if it overstates the sum due or does not give the debtor adequate notice to pay the arrears or does not contain the various terms that should be part of a default notice.

[militantconsumer]

Subbing

[Viscount Stair]

Thanks for these responses and for the support. No N1 in time for Christmas but I am not relaxing yet. I am, however, less despondent than I was.

 

An arrears notice and a default notice are not the same thing. An arrears notice would simply inform you that you are in arrears where as a default notice would inform you that if you do not pay the outstanding arrears by a certain date then the agreement will be terminated. The agreement needs to be terminated before legal action can be taken. They can not issue a second default notice where the agreement has already been terminated.

 

I am aware that there is a difference between the two sorts of notice but it occurs to me that the amount on the arrears notice really should ought to tally with the amount of arrears stated on the default notice.

 

It wouldn't. It would identify the action that you need to perform in order for the agreement not to be terminated i.e. the arrears that are required to be paid and by what date.

 

The summary of what should be in a DN on the Payplan website indicates that the early settlement figure should be there for a fixed sum agreement. The information was on the First Direct DNs I received (or rather it was on one of them and there was an empty space for the information on the two others - clever!).

 

What I still need to know is whether it is possible to challenge the amount owed and/or counterclaim under the DDA but still apply for a time order or instalments as to any remaining balance?

 

In the meantime, I have submitted an SAR and s78 requests.

[Viscount Stair]

I have done a bit of prodding and I think this is the provision that Payplan are referring to (paragraph 8 of Schedule 2 to the Notices Regs):

 

Requiring earlier payment of any sum

 

8

Where a sum of money is required to be paid under the notice,

(a) the amount of the sum before deducting the amount of any rebate on early settlement;

(b) where any rebate on early settlement is allowable under the agreement or by virtue of section 95 of the Act--

(i) the amount of the rebate allowable calculated on the assumption that early settlement takes place on the date

specified in the notice for earlier payment of the sum; and

(ii) the total amount to be paid after taking into account the amount of any rebate on early settlement, namely the

difference between the amount shown in paragraph (a) above and the amount shown in sub-paragraph (i).

 

I suppose the question is whether the earlier payment is due under the DN itself - the Egg DN is worded in a very weaselly way allowing them to demand earlier payment at a later date.

[Mistermind]

Originally Posted by rory32

An arrears notice and a default notice are not the same thing. An arrears notice would simply inform you that you are in arrears where as a default notice would inform you that if you do not pay the outstanding arrears by a certain date then the agreement will be terminated. The agreement needs to be terminated before legal action can be taken. They can not issue a second default notice where the agreement has already been terminated.

 

 

I am aware that there is a difference between the two sorts of notice but it occurs to me that the amount on the arrears notice really should ought to tally with the amount of arrears stated on the default notice.

 

The DN is a legal requirement and the defaulted amount is subject to legal challenge and overturning if the amount alleged to be owed in arrears is not truly owed, but doubtful if a judge will overturn it over a small amount discrepancy.

 

Arrears demands sent out in bulk on different dates for varying amounts, being no more than commercial letters would carry a lower expectation of accuracy. Hard to see sloppy Egg correspondence being sufficient grounds for overturning a DN. If a DN and an arrears letter with the same date show different amounts it would merely confirm what the judge already knows, that Egg's left hand does not talk to their right hand. If the DN's amount is seriously wrong then that's another matter.

 

Good luck.

[Viscount Stair]

The thing is that the Arrears Notice is now itself a legal requirement and a statutory document, albeit one that is not yet tested in status (having only come into existence last October).

 

I don't know what the relationship between the two documents is but I suspect that no-one does yet, which is why I think it might be worth teasing out the issue.

 

It may well be a blind alley that leads nowhere but I think it's worth going down in the safety of this environment.

[Viscount Stair]

The more I prod into this the more I think that the introduction of the Arrears Notice in the 2006 Act has created a whole new set of mistakes for creditors to make and opened a whole new line of attack.

 

The relevant legislation is to be found in sections 86B-86D (inserted by sections 9-11 of the 2006 Act) and The Consumer Credit (Information Requirements and Duration of Licences and Charges) Regulations 2007 (No. 1167).

 

The penalty under section 86D for non-compliance with section 86B (fixed-sum) or 86C (running account) is even more stringent than the older non-enforcement provisions. Not only does s86D(3) preclude enforcement during the period of non-compliance but s86D(4) removes any liability for interest or default sums incurred during the period of non-compliance, even if there is compliance at a later date.

 

Schedule 3 of the Information Requirements Regs (Schedule 3) specifies the various permutations of what information must be included in an Arrears Notice. For example, in the case of the first AN served in relation to a fixed sum agreement, the prescribed information includes the balance of the account and the amount of the shortfall in payments.

 

I would suggest that, if the prescribed information is incorrectly specified in an Arrears Notice, then the Notice is a nullity and section 86D kicks in.

 

This is a relatively new requirement - it came into force on 1 October 2008 - but the Regulations have been in place since April 2007 and there appears to have been fairly extensive consultation, so the industry had ample opportunity to avoid teething troubles and that should not be an excuse.

 

In my case, at least one of the DN and the AN is wrong (and both might well be wrong). At least one therefore must be a nullity, I would submit.

 

They are both statutory documents, so - to my mind, at least - it is not a trivial discrepancy.

 

As I say, I think a whole new line of attack has been opened up.

Edited January 6, 2009 by Viscount Stair
errant sunglasses

[Viscount Stair]

It appears that Egg are having "technical difficulties" with their Arrears Notices. Well, they only had 18 months advance warning, so a few teething troubles are inevitable, aren't they?

[rory32]

Well as it took most companies at least 25 years to come to grips with the consumer credit act 1974 and the regs surrounding keeping documents it's not really of any great suprise

[steven4064]

35 for some of them

[rory32]

I was generalising Steven ;)

 

But you're quite right. Some of them still haven't got it together.

 

Cap One can I have an enforceable agreement please

[joneseyblod]

subbing with interest

[Viscount Stair]

At least Egg remembered to include the OFT Information Sheet with their Arrears Notices, First Direct didn't and then still didn't send them when it was pointed out to them!

 

The Arrears Notice may be the least of Egg's worries.

 

I am still waiting for my SAR but my CCAs arrived yesterday. According to the letter, it was with pleasure that the documents were enclosed. It is with schadenfreude that I will be replying.

 

The loan CCA consists of a screen printout for an online application (post Electronic Comms Regs) and a set of Ts&Cs. The cross reference in the screen printout to the personal information clause in the Ts&Cs is wrong (the clause numbers do not match).

 

The Egg Card CCA consists (I kid you not) of a copy of a fax copy of a fax copy of what looks like a microfiche printout of a document that has been reduced from A4 to about A5, is only just about readable and refers to a Limit, an Approved Limit and an Individual Limit but not a Credit Limit and a set of Ts&Cs that are not the current Ts&Cs but contain different interest rates to those on the other document.

 

The Egg Money CCA consists of a copy (number of generations unknown) reduced from A4 to about A5 and printed on modern Egg letterhead of a document that refers to a Limit, an Approved Limit and an Individual Limit but not a Credit Limit. No Ts&Cs have been provided at all for this account.

 

That is all I am prepared to say about the CCAs for the time being but I will update in due course.

[web2dude]

Subbing with interest....

[the main man]

Hi VS,

 

I have today received a Revised Notice of Arrears from Egg which replaces an earlier incorrect one sent in November, they have refunded all interest and charges added within this period.

 

Funny, they have not sent a breakdown or statement to highlight what has been refunded, SAR going off today to find out more info

 

MM

[Livis]

Hello, subbing as your thread is interesting to me too.

I've today received my response to my egg loan cca and sure enoughmy signature is there (damn) but like you the t&c's they have sent are just current T&C screen prints as you rightly point out the clause numbers don't match.

I really don't know if this is enough to contest it though?

Livis xx

[Viscount Stair]

Livis: If you have not done so already, than SAR.

[Livis]

Hello VS,

Yeah i have sent a SAR too, and today i had a reply re that aswell saying that they have recieved my request and that are gathering docs that will be with me by the 3rd March.

I have looked throuh my filing and have found the original agreements for both egg card and loan ( can't belive i actually kept them!) and all looks ok really apart from the clearly not sending the correct terms and conditions.

I'm not sure how much water this would hold in a court of law really?

What do you think ?

[militantconsumer]

Upload a copy of the agreement Livis, preferably start a new thread of your own so it doesn't get confused with VS's.

 

Use photobucket.com - free and easy.

 

If you don't have scanner then you might be able to take a decent digital photo of the agreement if you can get it in focus.

 

Then go into Paint and hide all the personal details.

[Livis]

Hi Millitant,

Gonna upload it now, let me know what you think xx

[Viscount Stair]

It had all gone quiet over there ... (take it up as a chant, if you wish )

 

... and then a little light reading arrived.

 

Yup, my SAR is finally here - very late indeed.