basa48 v Egg CC

[basa48]

OK starting own thread>

 

Got my CCA back from Egg and it is the usual format i.e. Approved Limit instead of Credit Limit.

 

Gonna 'dispute' them by letter next week.

 

PS: my account is NOT in default - yet!!

 

Can I PM anyone regarding my 'dispute' letter 'cos I don't want to post it up. You never know who's watching and could link my letter to my posts here!!!

[lollipop73]

I took mine down too, there is no rational reason why, just being cautious_i`ll pm you the one I sent to them though-still no response from them.

[basa48]

I took mine down too, there is no rational reason why, just being cautious_i`ll pm you the one I sent to them though-still no response from them.

 

Replied to PM - thanks for that.

 

How long since you sent?

[lollipop73]

That`s a bit of a story.

 

They got it first with my SAR request which they sent back as it was unsigned-royal mail printout says 4th Feb, they got a second letter stating exactly the same thing except with a few clauses and subsections thrown in about not needing a signature and that they were misrepresenting the law by claiming they NEEDED my signature before sending it out on the 16th Feb (royal mail printout to prove it again), instead of saying they needed it to prove who I am ( which they hardly needed because I sent them two forms of id with my CCA request-what dumbos!!).

[basa48]

A little of topic but got my cca back from Tesco Finance (credit card) today.

 

OMG it's just a signed application. No credit limit, no payment details, no APR, no charges. Even has on the page where to fold and seal the thing as a return envelope - so no chance of anything hidden on the reverse. Actually they did send a 'lash up' (I think) of a standard agreement containing all the prescribed terms, but it is a modern version and has my credit limit on which was only increased last year (the original application was 2000). Need I say more!

 

Just debating whether to hit egg with approved limit, termination letter or both.

[basa48]

Oh well...in for a penny...the letters (Egg & Tesco) go tomorrow SD.

[basa48]

These are my Tesco & Littlewoods Catalogue CCAs.

 

Anyone agree they *might* be unenforceable !!??

 

 

[cds]

why don't I ever get sent anything like that, jammy so and so

 

Lol

 

cds:D

[basa48]

why don't I ever get sent anything like that, jammy so and so

 

Lol

 

cds:D

 

Amazing how lax they were back then (c1999/2000) !! Couldn't wait to get you on credit !!

[basa48]

Well Egg have had my dispute letter for about a fortnight now and still the only response is that they wrote a few days ago and advised me my DD has been cancelled!

[militantconsumer]

As I'm sure you have noticed from all the other threads, they have no idea what to do about this.

 

Your main problem is the threat of a default and the damage that could cause you over the next 6 years.

[basa48]

As I'm sure you have noticed from all the other threads, they have no idea what to do about this.

 

Your main problem is the threat of a default and the damage that could cause you over the next 6 years.

 

I reckon I'll have to take them to court to get a judge to declare the agreement unenforceable and remove the defaults and CRA records.

 

'Tis the only way as I see it !

[lollipop73]

That's basically what it comes down to with myself aswell.

 

However for that I will be seeing a solicitor.

[basa48]

I need some advice.

 

It is possible (dependant upon your advice !) I might take Egg (and others if this is successful) to court over my credit card agreement being unenforceable.

 

I have obtained a copy of the agreement, which I know is the true copy, as I also have my original customer copy from 2002 (so no budding barrister is gonna produce a compliant agreement outta his ass!!). It uses the usual ‘approved’ or ‘individual’ term instead of ‘credit’ plus there is no mention of any ‘charges on default’. It is primarily the former misleading term that I intend to cite in any action, but will mention the latter if you think it would help.

 

I have disputed the account and stopped paying. Until now my account was spotless.

 

My aim is to get the courts to declare the agreement unenforceable plus make an order to remove any defaults from my credit file.

 

At the moment I am unsure on a couple of points.

 

1.Which is the best vehicle for an action to achieve this aim, small claims or Part 8.

 

2.Do I request a declaration under CCA 1974 s142(1) which to my reading allows the court discretion (“the court may if it thinks”) or under 127(3) which reads “The court shall not make an enforcement order”.

 

I have put together a PoC to which I have added a request for special directions (these primarily point the court to the lacking prescribed terms and various case law - Spurway, Wilson, Nicholls et al, plus rectifying the credit file via s14 DPA).

 

My other major concern is if the court asks why I am taking this action. Is it just to avoid paying my debts? How can I avoid the wrath of a hostile judge if I cannot justify my actions other than “I’m a bit hard up so decided to find a way of not paying my debts”..

[cds]

I've been thinking the same thing and I am quickly coming to the conclusion to let sleeping dogs lie. Creditors have stopped pestering me for weeks now.

 

At least if they take me to court I might come across a sympathetic judge who can see my side as defendant rather than a vexatious litigant.

 

To be quite honest the last thing on my mind is my credit file and I definately wont be looking for credit in the near future if ever.

 

best of luck though

 

cds

[militantconsumer]

As a general comment - what is the point of going to court to ask a judge to rubber stamp what is already happening? (i.e. the credit cannot enforce the debt, and you both know it)

 

plus rectifying the credit file via s14 DPA).

 

What makes you think that your credit file would be amended? In what way is a default "inaccurate data"?

 

I can understand how you might get your file sorted if they have lost the agreement, because then they have presumably also lost their evidence that you consented to any data sharing at all.

 

But if the agreement is simply unenforceable, surely there is a powerful argument that it could still be accurate to describe your actions as a default on a credit agreement?

 

By the way, I am not making a moral judgment here, I am just playing devils advocate and imagining how this situation could be interpreted. I am interested in the issue because it affects my friend's case.

 

Actually it could affect me personally as well. I have a £5k credit limit with a probably unenforceable Egg Card agreement from about 2000. Can I now just go and max it out, with no fear of any repercussions, not even a default?

 

To be quite honest the last thing on my mind is my credit file and I definately wont be looking for credit in the near future if ever.

 

A poor credit rating doesn't just prevent you from obtaining loans and credit cards you can't afford to pay back. It can prevent you from getting a competitive bank account, even if you never intend to use the overdraft facility. There is also the issue of not being able to get any joint financial products with a current or future partner without bringing their rating down as well.

[basa48]

What makes you think that your credit file would be amended? In what way is a default "inaccurate data"?

 

I can understand how you might get your file sorted if they have lost the agreement, because then they have presumably also lost their evidence that you consented to any data sharing at all.

 

But if the agreement is simply unenforceable, surely there is a powerful argument that it could still be accurate to describe your actions as a default on a credit agreement?

 

My interpretation was that if the agreement is unenforceable, the creditor has no right to demand payments. Without a right to demand payment how can non payment be in default of the agreement.

 

s142 CCA 1974 - (1) Where under any provision of this Act a thing can be done by a creditor or owner on an enforcement order only, and either— (b) where no such application has been made or such an application has been dismissed on technical grounds only, an interested party applies to the court for a declaration under this subsection, - the court may if it thinks just make a declaration that the creditor or owner is not entitled to do that thing, and thereafter no application for an enforcement order in respect of it shall be entertained i.e. enforce the agreement.

 

Without the DPA permissions granted by the executed agreement:

 

Plus s10 DPA - "...an individual is entitled at any time by notice in writing to a data controller to require the data controller ......... to cease ...... processing, ......any personal data"

 

s14 DPA - "If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data."

Edited March 23, 2009 by basa48

[millymollymoo]

Hi hope you don't mind me subbing. Similar circs:)

 

Milly XX

[joneseyblod]

Interesting thread, have interest in Egg and issue of defaults.

[A+]

Subbed also, very similar circumstances

[basa48]

Interesting thread, have interest in Egg and issue of defaults.

 

Thing is, IMO, if the Egg agreement is not enforceable, this equates to never was enforceable from day one.

 

In that event there was never any agreement where Egg could request payment, nor I offer payment. As per the Lords various judgements and opinions the creditor is seen to have gifted any monies I have drawn in "circumstances in which it was never entitled to have them repaid".

 

So how can I be in default for failing to pay ?

 

The whole thing hinges on enforceable / unenforceable.

 

Lord Nicholls: "True, the Consumer Credit Act does not expressly negative any other remedy available to the lender, nor does it render an improperly executed agreement unlawful. But when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.”

 

Francis Bennion (draftsman of CCA 1974): "......I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.”

[joneseyblod]

Thats a good argument there. And as you say if the agreement is irredemingly unenforcable then the likes of default notices should not be applied, and maybe even any payment information on credit files for that account!?

[basa48]

Thats a good argument there. And as you say if the agreement is irredemingly unenforcable then the likes of default notices should not be applied, and maybe even any payment information on credit files for that account!?

 

Well that is certainly my take on it .. I hope a DJ agrees

 

I am still debating whether I should take Egg (et al) to court or just defend against them

 

TBH apart from a letter telling me my DD is cancelled (no sh*t Sherlock !) and that they have added £16 to my account as a penalty for late payment, not much else from them despite my 'disputing' the account.

 

Taking them to court at this early stage seems a bit aggressive as an 'innocent' LIP. :grin:

[joneseyblod]

Perhaps to wait a while on it see what happens. As you say they havnt really done much, and a good paper trail of correspondence back and forth shows the judge you have tried to resolve the problem.

[lollipop73]

I agree, but I also feel the frustration of having a DN issued when the account has been disputed.

 

Also, my SAR is now overdue ( surprised? No not really).