Egg CCA received, is it enforceable?

[lunar jim]

I received this CCA in the post today, could someone please tell me if it's enforceable. It does appear to have prescribed terms...

[lunar jim]

[lunar jim]

[Pinky69]

Egg are usually up to scratch with their agreements. In my view it is enforceable. The reasons are it has a reference to a credit limit, an interest rate, a repayment schedule and your signature, which are the prescribed terms for an agreement.

[lunar jim]

My thoughts too, thanks Pinky. Looks like they'll get their payments then.

[toxicdebt]

Mine is the same as yours, and according to other threads on here its unenforceable as it has no Credit Limit. it uses the word "Approved Limit". The term 'Credit Limit' is a prescribed term apparently.

[lollipop73]

It is missing the prescribed term "credit limit", approved limit is not a prescribed term.

[Pinky69]

My view on that is that it wouldn't make any difference to a judge - all he/she would be looking for is that there was a reference as to how the limit would be set.

[lollipop73]

Playing Devil`s advocate here,

 

but what limit-the limit on how much in one purchase, or the limit on where I can use it?

 

 

Forgive my bullheadedness, I do it only to clarify my own mind.

 

Doesn`t a prescribed term mean just that-say it just so-nothing else is acceptable?

[Pinky69]

You know what Approved Limit" means and so will a judge if it goes to court. Remember a judge ruled enforcement where just a cut up credit card was produced. In one case of there not being Terms and Conditions, the creditor's solicitor was told to go and make some up! In my view if you started arguing to a judge that you didn't know what the Approved Limit meant, you might be told not to be so smart. It's one thing arguing a case where there is no reference to a limit to the card, quite another to argue on semantics.

[lunar jim]

Yeah, it seems a bit thin to me; I wouldn't fancy going to court on that alone. Looks like I'll be paying this one. I'd read on here a few times Egg were good with their agreements, so I was prepared for this TBH. Shame, because this is my largest debt lol

[cds]

Taken from another thread:

The agreement you have there does not comply with Schedule 6 para 3 of SI 1983/1553

Quote:

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit

Now the CCA 1974 sets out what "Credit" is at section 9

Quote:

Meaning of credit.9. — (1)

 

In this Act “credit ” includes a cash loan, and any other form of financial accommodation.

Now the act defines credit, the prescribed term required refers to Credit so it stands to reason that in this case the word Limit does not suffice

 

[toxicdebt]

Well there is only one way to find out. I have no option as I cant afford to pay mine anymore due to change in financial status. So Lets see what happens if it gets to court.

[Mistermind]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/105315-my-agreement-enforceable-useful.html

 

Just thought i'd cut and paste this from the brilliant Peterbard....it would seem to be very useful, and I hadn't seen it in the DCA section...

 

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Pescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment
  

A is applicable

 

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreemens executed before that date.

[lollipop73]

I had thought that if it was missing a prescribed term a judge is not allowed to enforce the agreement-regardless as to what he/she thinks I may or may not know.

 

This seems to mean that a prescribed term can be inferred or insinuated.

 

 

Is this actually the case whereby the prescribed terms are open to interpretation and "we know you know, and you know we know you know..........."?

 

Maybe I will have to do some further reading, this point doesn`t sound like semantics-either a prescribed term is a prescribed term or it`s useless.

Edited February 20, 2009 by lollipop73

[BeauBrummie]

Hi all,

 

Just joining into this debate as I have some experience with Egg. I have come home from work today to find an aggreement exactly the same as what has been posted here and would like to try to get a difinitive answer on its enforcability or not.

 

Longish story but if you look at this

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/138599-bryan-carter-what-coincidence.html

 

you will see where I am coming from.

 

During October 2008 this was sold to Lowell Financial who on 29 1 09 sent me a letter saying that the agreement was "not available" but now i get a copy of the agreement in the post.

 

Beau

[Mistermind]

 

Maybe I will have to do some further reading,

 

Click SEARCH in the top blue bar

click ADVANCED SEARCH

set poster to PETERBARD

display returns as POSTS not threads.

[lollipop73]

Opinion does seem to be divided Beau, and I think what we need is a definitive answer to what a prescribed term actually is in practice.

 

 

Can they be inferred? Can someone say it doesn`t matter which particular words are used?

[BeauBrummie]

Opinion does seem to be divided Beau, and I think what we need is a definitive answer to what a prescribed term actually is in practice.

 

 

Can they be inferred? Can someone say it doesn`t matter which particular words are used?

 

I need to do some further reading around the forums, there are some good people on here who will give an honest opinion. I think personally that a judge would have grounds to enforce but hey I'm only a layman.

 

Beau

[basa48]

Regardless of peoples opinion regarding 'approved limit' v 'credit limit' , we ARE talking about a CREDIT Card here.

 

The Consumer Credit (Agreements) Regulations 1983 states in Section 2 'Form and Content of Regulated Consumer Credit Agreements'...........documents embodying regulated consumer credit agreements ... shall contain the information set out in column 2 of Schedule 1.

 

Schedule 1 states at Para 8 (Agreements for running-account credit):

 

The credit limit expressed as:-

1. a sum of money

2. a credit limit determined by creditor

or 3. a statement indicating manner in which credit limit will be determined.

 

Now what does the Egg Agreement say??:

 

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.

Note that NOWHERE does it mention a CREDIT limit.

 

What is an Approved limit or even Individual limit. As others have said this term (which is NOT a prescribed term) could mean absolutely anything.

 

Moving on to CCA 1974 section 127(3):

 

The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

Now this is a complicated and apparently conflicting paragraph, but the Lords of Appeal interpreted it as below:

 

Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.

 

If it's good enough for The Lords of Appeal it is good enough for me.

[lollipop73]

I need to do some further reading around the forums, there are some good people on here who will give an honest opinion. I think personally that a judge would have grounds to enforce but hey I'm only a layman.

 

Beau

 

 

As am I Beau-or rather a lay woman but I don`t think we need to add political correctness to an already hard to clarify debate:D!

Edited February 20, 2009 by lollipop73
correcting myself

[Pinky69]

The prescribed term for a credit limit IS there - it uses the word "Approved". the word "Credit" being implied. Look again at Section 127 (3) - it states clearly that as long as the prescribed terms are there WHETHER OR NOT IN THE PRESCRIBED MANNER and the agreement has the creditor's signature, it can be enforced.

[basa48]

The prescribed term for a credit limit IS there - it uses the word "Approved". the word "Credit" being implied. Look again at Section 127 (3) - it states clearly that as long as the prescribed terms are there WHETHER OR NOT IN THE PRESCRIBED MANNER and the agreement has the creditor's signature, it can be enforced.

 

Approved limit does not necessarily mean credit limit, it could apply to any part of the agreement.

 

Also I read the 'prescribed manner' alludes more to the methods of exchanging the agreement, not the 'prescribed terms' which are set out precisely so that a layman cannot misinterpret them.

 

2(2) of the 1983 Regs says:

Where any information about financial and related particulars set out in paragraphs 9 to 11 of Schedule 1 to these Regulations cannot be exactly ascertained by the creditor, estimated information based on the assumptions

referred to in paragraph 10 of that Schedule, where applicable, and otherwise such assumptions as the creditor may reasonably make in all the circumstances of the case and a statement of the assumptions made shall be included in

documents embodying regulated consumer credit agreements.

 

I see no statement of any assumptions as to a Credit Limit.

Edited February 20, 2009 by basa48

[Pinky69]

What other parts of the agreement have a limit? - I don't think a judge would have any difficulty understanding what that prescribed term is supposed to mean. I don't see any reference in Section 127 to the way in which agreements are exchanged?? and there are no assumptions to be made - Approved Limit is clear in its intent.

[BeauBrummie]

What other parts of the agreement have a limit? - I don't think a judge would have any difficulty understanding what that prescribed term is supposed to mean. I don't see any reference in Section 127 to the way in which agreements are exchanged?? and there are no assumptions to be made - Approved Limit is clear in its intent.

 

Fully take on board both sides of this argument. Do we know if there is any legal precedent that has proved that the exact wording Egg have used is enforceable? ---- any case law?, as yet I have not found anything to say that this wording has been tested.

 

I am of a mind at the moment to try and push Lowell all the way and see how far they want to take it.

 

Beau