Egg - County Court Summons - could anyone help please?

[Sunshine54]

hi Magda

 

in my case I was 1 year into a 6 year agreement and then topped up with new PPI for a loan that was only 8% more than the original value. I lost 50% of the original cost even though the policy would have been fine for me with the new agreement or maybe I could have taken a much smaller and cheaper policy for the difference between the two sums.

seems immoral to me

S

[Sunshine54]

hope that made sense!

[Sunshine54]

hello again

 

hypothetical question. the Egg agreement is two main pages (which are signed and dated) plus another 10 - 12 pages of info which contain the terms and conditions. If I found that the T & Cs that they sent under the CPR 31.14 request are not the ones that were with the original agreement - how much of an issue is that, if any?

thanks in advance

S

[MAGDA]

In order to comply with your request under the CCA they should provide the original t&c's and statement of account (plus current t&c's). IMO though, if the agreement has all of the prescribed terms then a court would probably allow them to enforce it. If however they are claiming that the t&c's were part of the agreement document itself (sometimes on the reverse of the agreement or page 2 of 3 for example) and it is here that the prescribed terms are found, then if they have only managed to provide the current t&c's and not those relevant to your account at that time, then it would not be enforceable. Magda

[steven4064]

I've managed to download the program but I've gone cross eyed trying to understand it and the 'help' notes. (it's like a foreign language to me)

I'm afraid Dualcalc is a bit opaque

 

the Insurance was provided by AXA through Egg. will AXA have paid Egg a commission on the business and is that relevant to me in this claim?

They may well have done. If it is not declared on the laon agreement then the loan may well be unenforceable as the pescribed terms will be wrong. That is because the commission will have been included in the loan amount via the PPI premium when it should be under the cost of credit.

If the policy says that it's valid for the term of the loan agreement does that mean that it has to be cancelled when the loan is 'topped up' ?

Not necessarily but you need to know what exactly happened to it.

 

What often happens when a loan with PPI is topped up is that the new loan is for the balance of the existing loan (which includes the PPI premium in the loan amount) but the PPI policy is allowed to lapse. You are still paying for it though as the premium is still included in what you are paying for.

[Sunshine54]

Hi Steven

 

many thanks for the comments.

 

any advice would be much appreciated.

S

Edited November 5, 2009 by Sunshine54

[Sunshine54]

good morning early birds

 

 

S

Edited November 5, 2009 by Sunshine54

[MAGDA]

good morning early birds

 

I have been reading the additional information that came with the copy loan agreement and it's clear from the agreement that the accompanying 'term and conditions' aren't the originals. The agreement has three references to clauses in the terms and conditions, one clause is about a completely different subject and the other two don't exist.

 

At this stage do I refer to this in my defence?

many thanks (got to have this blooming defence completed and delivered tomorrow so I'm spending all day slaving over this keyboard)

S

 

Hi Sunshine, yes, you should definitely refer to the t&c's in your defence stating that the document ('agreement') refers to terms and conditions which have, in any event, not been supplied. Glad you are getting on well with your defence, post it up if you get a chance to be checked over by someone

 

Good luck, Magda:)

[Sunshine54]

hi Magda

thanks for the support

 

I just had a glitch with my laptop and couldn't access the internet for 10 mins - talk about hot sweat!

 

lesson = don't leave things until the last minute.

 

I'm certain that I will be on and off here all day.

S

[Sunshine54]

hi,

 

here's a draft defence for review and I'd really appreciate your feedback. If there are any significant points (or even insignificant ones) that I need to make please let me know. I am struggling with the counterclaim value but will make a best guess unless anyone has a better suggestion.

many thanks in advance.

S

the posting has screwed the format but it looks ok on my laptop

it's the content that I am concerned with

 

thanks again

 

 

Edited September 15, 2009 by Sunshine54
tidy up

[MAGDA]

hi,

 

here's a draft defence for review and I'd really appreciate your feedback. If there are any significant points (or even insignificant ones) that I need to make please let me know. I am struggling with the counterclaim value but will make a best guess unless anyone has a better suggestion.

many thanks in advance.

S

the posting has screwed the format but it looks ok on my laptop

it's the content that I am concerned with

 

thanks again

 

 

IN THE COUNTY COURT CLAIM NO.:

 

B E T W E E N:

 

Egg Banking plc

 

Claimant

 

 

 

and

 

 

 

 

 

 

 

Defendant

 

 

 

____________________________________

 

 

 

 

DEFENCE AND COUNTERCLAIM

 

 

 

____________________________________

 

 

 

 

 

 

Amended DEFENCE pursuant to the Order of District Judge made the

 

 

 

2009

 

 

 

 

 

 

DEFENCE

 

 

 

 

Save as is specifically dealt with hereafter, the Defendant joins issue with the Claimant on every aspect of the Claim and puts the Claimant to strict proof of the matters alleged.

 

 

1.Claimants Pre-Action Protocol Failure

 

 

 

The Claimant gave notice of proceedings on xxx January 2009 and issued proceedings on xxxx January 2009. The Defendant had written to the claimant on January 2009, but neither the Claimant nor their solicitor responded to the correspondence, preferring to limit their approach to telephone calls during the day whilst the Defendant was at her place of employment and unable to discuss personal matters. There was no attempt by the claimant to address the issues that are before the Court today.

 

 

 

 

 

2.Claimants CPR 31. 14 Failure

 

On the xxxx February 2009, the Defendant made a request of the Claimant, under CPR 31.14, to supply a true copy of the agreement they were to rely on in this matter.

The Defendant received an acknowledgement from xxxxxx dated xxxxMarch 2009, advising that they had passed the request for the relevant documents to their Client and they would let her know when the information was available.

The Defendant wrote to the Court highlighting the lack of response and the Court subsequently stayed this case on two occasions pending the Claimants production of the said agreement.

The Claimant says they sent a copy of the agreement to the Defendant on xxxx 2009. The Defendant did not receive this correspondence. The Defendant is given to understand that a copy of the letter dated xxxx 2009 was supplied to the Court but there was no supporting documentation with the letter.

It is averred that even if it was accepted that the Claimant had supplied the agreement on this date, they had exceeded the required period of 7 days in which to respond. In actual fact the Defendant received the copy ‘agreement’ on xxx 2009 and this document refers to ‘terms and conditions’ which have, in any event, not been supplied.

 

3.Claimants Data Protection Failure

 

The Claimant made a Subject Access request of the Claimant under Section 7 (1) of the Data Protection Act on xxFebruary 2009. After repeated requests from the Defendant, documentation was received on xxxx 2009. However this was not a complete response as it had a number of omissions, specifically there were no tape and/or transcriptions of conversations between Egg and the Defendant.. There were no Egg internal communications or notes nor details of how and when Payment Protection Insurance had been arranged together with commission earnings and how the calculation on PPI premium was arrived at. Despite repeated requests this required information to date has not been supplied.

 

 

4.Claimants Failure to Prove Debt or Produce Evidence

 

A request for further and better particulars was made of the Claimant on xxx x 2009. Please find attached letters marked ‘A’ and ‘B’, which are self explanatory in the failure of the Claimant to prove their claim. To date the Claimant has failed to provide a full breakdown of the alleged debt and as a result it is not possible for the Defendant to determine the extent to which the amount claimed has been misstated. Also it is unclear how the Claimant has calculated the amount claimed without this information.

 

5.Claimants Contract Failures

 

It is averred that if any agreement existed that the aforesaid agreement was a regulated agreement within the terms of the Consumer Credit Act 1974. It is denied that the Agreement is enforceable within the terms of the Act in that theDefendant avers that the aforesaid alleged agreement does not contain reference to the Statutory Particulars required

 

The Claimant supplied documents, under CPR31.14, in support of their claim.

These documents include :

A document headed ‘Personal Loan Agreement for xxxxxxxxx’

A document headed ‘Legal information you need to be aware of’ sub-heading ‘Personal Loan Agreement Terms and Conditions’

A document headed ‘Legal information you need to be aware of’ sub-heading ‘Policy Document – Egg Loan Repayment Protection’

 

The ‘Personal Loan Agreement for xxxxx’ makes reference to ‘Personal Loan Agreement Terms and Conditions but these Terms and Conditions have not been supplied. The Document, which purports to be the relevant ‘Personal Loan Agreement Terms and Conditions, does not relate to the ‘Personal Loan Agreement’ provided by the Claimant.

 

The ‘agreement’ makes reference to Payment Protection Insurance (PPI) being included. It is averred that the agreement falls within s18, as defined in s18 (2) Consumer Credit Act 1974 that the document is to be treated as 2 separate agreements and each agreement must have its own Prescribed Terms for each part. Therefore each piece of credit must have its own term stating the amount of credit, repayments and all other statutory information. In addition it is averred that the PPI 'agreement' would need to have a term stating the Cash Price of the policy, due to it being a restricted use Debtor/Creditor/Supplier agreement. The Defendant avers that the ‘agreement’ does not confirm to the form and content requirements of section 60 Consumer Credit Act 1974

.

The ‘Agreement’ does not include Cancellation Rights as required by section 64 Consumer Credit Act 1974

 

The actual date of the ‘loan’ is not stated therefore the first payment date cannot be determined and the related interest calculations cannot be validated.

The ‘agreement’ states: "the first instalment to be 3rd of month following one in which the loan is made, or if that date is less than 30 days from the date that the loan is made, on the 3rd of the following month. If the first instalment is paid 30 days ormore after the date that the loan is made, there will be additional interest to pay on the loan calculated at the interest rate in respect of the additional number of days for which the loan is outstanding as a result" This is unclear and confusing for a consumer inexperienced in these matters, especially where the date of Agreement is not specified.

 

 

 

 

COUNTERCLAIM

 

 

 

 

1.The Defendant repeats its defence and counterclaims losses of {£???? or not exceeding £????} together with interest at 8% per annum pursuant to Section 69 of the County Courts Act 1984.

STATEMENT OF TRUTH

 

I believe that the facts stated in this Defence and Counterclaim are true.

 

Signed ……………………………………………

 

xxxxxxxxxx Defendant

Dated the day of 2009

 

 

That looks ok Summer, you have made the points that you wanted to, so that is fine, have changed a couple of minor things. I take it the first ref was to cpr 31.14, the deadline to respond to that is 7 days not 40, so have changed that. With a specific cca request it used to be a criminal offence if the creditor did not respond within 12+2 + 30 days, but that is no longer the case, and you actually made a request for specific disclosure by sending the cpr 31.14 which is a different thing. Good luck with this, if you need any more help, let me know.

 

Magda

Edited September 17, 2009 by MAGDA

[Sunshine54]

hi Magda

many thanks for your feedback. I've made the improvements you suggested.

 

I have a niggling feeling that I've forgotten something but when I read it - nothing leaps out (but then it wouldn't if I've forgotten it doh)

 

I'm going to stop and get a quick dinner then back to the drawing board re the PPI counterclaim. As I'm not altogether certain what I'd be 'allowed' to claim for, I'll just have to go for the lot!

 

thanks again

S

ps I quite like being Summer. Summer Sunshine = makes everyone happy (except EGG lol)

[Sunshine54]

and I don't think I'd heard the word 'averred' before Magda and looked it up in the dictionary.

 

I like it

[Sunshine54]

Ah just putting some papers away and found notes that I printed out a few days ago

Even though I believe that the DN is ok Magda you suggested that I put some comments in my defence relating to that. I'd like to do that so where would you suggest that I add them?

thanks

S

[Sunshine54]

oh dear I should think before I post ....

 

the other thing that I was thinking about - can I claim that the multiple agreement 'rules' apply to the loan because a tiny amount of cash was provided then the rest of the advance paid an existing loan balance, PPI, and Egg Card balance ?

I'd rather over-egg the defence (pun absolutely intended)

what do you think?

thanks

and now I'm definitely going to get something to eat.

[N.P]

Sunshine, are you saying the Loan also included cash to yourself as well as paying off other debts?

 

Now, did you receive ALL of the Loan amount, or only the spare cash part?

[Sunshine54]

hi N.P.

according to the spreadsheet provided and the screen shots that I got from Egg under SAR I received a couple of hundred pounds via Chaps to my bank account, then £xxk was used to pay off the existing Egg loan, £xk for PPI and £xk for existing Egg CC. (I do have the exact numbers and they add up to just under £30k

regards

to answer your question fully - I only got my grubby mitts on the couple of hundred pounds

S

Edited November 5, 2009 by Sunshine54

[MAGDA]

hi Magda

many thanks for your feedback. I've made the improvements you suggested.

 

I have a niggling feeling that I've forgotten something but when I read it - nothing leaps out (but then it wouldn't if I've forgotten it doh)

 

I'm going to stop and get a quick dinner then back to the drawing board re the PPI counterclaim. As I'm not altogether certain what I'd be 'allowed' to claim for, I'll just have to go for the lot!

 

thanks again

 

S

ps I quite like being Summer. Summer Sunshine = makes everyone happy (except EGG lol)

 

Hi there sunshine/summer, don't know why I called you that, must be a word association thing:)

 

Ah just putting some papers away and found notes that I printed out a few days ago

Even though I believe that the DN is ok Magda you suggested that I put some comments in my defence relating to that. I'd like to do that so where would you suggest that I add them?

thanks

S

 

I would put the bit about the DN in after the part about CPR 31.14, it's as well to include it as you may want to use it later on for some reason.

 

oh dear I should think before I post ....

 

the other thing that I was thinking about - can I claim that the multiple agreement 'rules' apply to the loan because a tiny amount of cash was provided then the rest of the advance paid an existing loan balance, PPI, and Egg Card balance ?

I'd rather over-egg the defence (pun absolutely intended)

what do you think?

thanks

and now I'm definitely going to get something to eat.

 

 

In that case it would be a restricted and unrestricted use agreement, so you could say that section 18 would apply. Francis Bennion seemed to imply this was the case I think where a top up loan is concerned I believe, so worth a shot.

 

Enjoy your dinner by the way.

 

Magda

[MAGDA]

Might be worth having a look at this:

 

http://www.francisbennion.com/pdfs/fb/1999/1999-004-multiple-agreements.pdf

 

Think page 9 of the above refers to top-up loans.

Edited September 13, 2009 by MAGDA

[Sunshine54]

Thanks Magda

that spells it out nicely

 

I've also estimated my counterclaim at £xk plus interest plus the 8% interest and will firm up the figures when I get the detailed info from them.

 

I do know that when this is submitted, I've got even more work to do!

 

what on earth did I do with my time before my debt became unaffordable?

Edited November 5, 2009 by Sunshine54

[MAGDA]

Thanks Magda

that spells it out nicely

 

I've also estimated my counterclaim at £10k plus interest plus the 8% interest and will firm up the figures when I get the detailed info from them.

 

I do know that when this is submitted, I've got even more work to do!

 

what on earth did I do with my time before my debt became unaffordable?

 

 

Yes, it's full time job, as I have found, shame we don't get paid anything though:mad:

 

Magda

[Sunshine54]

haha we can get £9.25 per hour when we win!

[Sunshine54]

good evening

one last question prior to printing my Defence - do I send a copy to the Solicitors as well as the Court?

thanks

S

[MAGDA]

good evening

one last question prior to printing my Defence - do I send a copy to the Solicitors as well as the Court?

thanks

S

 

Yes, you should send them a copy as well as filing it with the court.

 

Magda

[Sunshine54]

evening Magda

 

 

 

thanks again for your help Magda.

Sunshine

Edited November 5, 2009 by Sunshine54