Egg loan/CapQuest threats, even when I live and work in China!

[lilly white]

YES I SEE

 

YOU MAY WELL BE INTERESTED IN THIS COURT CASE JUST IN CASE YOU MISS

IT

 

KIND REGARDS

 

 

APPROVED JUDGMENT

__________

APPEARANCES:

For the Claimant: MISS GARDNER

For the Defendant: MR BERKLEY QC

__________

Transcribed from tape by

J L Harpham Limited

Official Court Reporters and Tape Transcribers

55 Queen Street

Sheffield S1 2DX

BANK OF SCOTLAND -v- ROBERT MITCHELL

1st June 2009

APPROVED JUDGMENT

JUDGE LANGAN:

 

1. I have to deal with an issue as to costs which has arisen on the informal discontinuance of an action.

 

2. The action was commenced on 21st May 2008. The claimant bank had, in December 2003, issued a credit card to the defendant, and the claim was for £15,417.23, being the amount said to be due on the defendant's account. Judgment in default, for a total sum of £15,727.23, was obtained on 4th July 2008. The defendant subsequently applied to have the judgment set

aside. That application came before District Judge Jordan on 29th January this year and was successful. The recitals to the District Judge's order say this:

"And upon the defendant's proceedings on the basis of a breach of

Section 61(1)(a) of the Consumer Credit Act, namely that the claimant

failed to comply with the requirements to give copies of all the

documents relevant to the agreement at the time of signing, and upon

the defendant contending that notwithstanding Section 65 of the

Consumer Credit Act 1974, Section 127(3) of the Act preventing the

enforcement".

 

After those recitals it is ordered the court sets judgment aside, and it is ordered that there be, "A determination of the issue set out above". Various procedural directions then follow.

 

3. What has been listed for trial today is, "The determination of issue", referred to in the order which I have just recited.

 

4. The agreement made in relation to the defendant's credit card was a regulated agreement within the Consumer Credit Act 1974. Section 61(1)(a) of that Act provides:

 

"A regulated agreement is not properly executed unless a document in

the prescribed form, itself containing all the prescribed terms and

conforming to regulations under Section 60(1), is signed in the

prescribed manner, both by the debtor or hirer, and by or on behalf of

the creditor or owner".

 

Having regard to the date of the agreement made in this case, which was prior to amendments made to the Act which took effect from 5th April 2007, the result of non compliance with Section 61(1)(a) would be that the credit card agreement would be unenforceable against the defendant, see Consumer Credit Act 1974 Section 127(3).

 

5. This morning I was informed by Miss Gardner, counsel for the bank, that the bank was withdrawing its claim against the defendant. This announcement has been accepted by Mr Berkley QC, who appears for the defendant, as equivalent to the service of a notice of discontinuance under the Civil Procedure Rules Part 38.3. By the Civil Procedure Rules Part 38.6.1:

 

"Unless the court orders otherwise, a claimant who discontinues is

liable for the costs which a defendant against whom the claimant

discontinues incurred, on or before the date on which notice of

discontinuance was served on the defendant".

 

Miss Gardner contends that the court should, "Order otherwise", and make no order for costs as between the parties. Mr Berkley contends that the presumption in CPR 38.1.6 should operate, and further that the order for costs to be made in favour of his client should be an order for assessment on the indemnity basis.

 

6. The thrust of Miss Gardner's submission is that the issue directed by the District Judge, and on which the evidence has been focussed, is whether the bank supplied the defendant at the time of signing the application form for credit with documents which contained all the terms of the agreement between them. I shall elaborate a little further on this. It has been the defendant's case that he was supplied with nothing more than the application form which he signed. It has been the bank's case that in accordance with the usual practice of the bank the defendant would have been, and must have been, supplied with other documents, including a pack which will have contained all the terms and conditions of the agreement made between the parties. Miss Gardner goes on to say that the defendant has at the last moment taken a new and radically different point, namely that the document signed by the defendant did not contain all the prescribed terms of the agreement. I must again elaborate on this. It is common ground that the only document signed by the defendant was the application form. It is also common ground that the application form did not, on its face, set out the prescribed terms of the agreement between the parties. The point which is treated by Miss Gardner as a

new point is dealt with in paragraphs 22 and 23 of Mr Berkley's written argument, and it will, I think, be more economical if I simply quote those two paragraphs in full rather than attempt,in my own words, to expand on them:

 

"The key words in Section 61(1)(a) are the reference to a document

itself containing all the prescribed terms, and conforming to the

regulations under Section 61. This language is clear and specific, and

ensures that mere reference to terms contained in another document

will not suffice. The document must contain the prescribed terms, just

as the signed document referred to in Section 127(3), which might save

the day, must however contain the prescribed terms. The construction

contended for by the defendant is entirely consistent with the language

of Section 61(1), and is also supported by Professor Good in his

encyclopaedic work - see Good & Consumer Credit Law and Practice

volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the

learned author draws a distinction between the language of paragraph

(a) contain and paragraph (b) embody. It is respectfully submitted that

the court should adopt the same reasoning in determining this issue in

favour of the defendant, irrespective of whether or not it finds that the

defendant was supplied with documents other than the credit

agreement itself".

 

7. In my judgment, the point with which I have just been dealing is not properly to be characterised as a new point on which the bank can present itself as being taken by surprise. I refer to four documents. First, on 3rd November 2008, when the defendant was acting as a litigant in person, in the request to have the default judgment set aside he said this:

 

"As the court is aware, in the absence of all the prescribed terms being

embodied, it will render a document unenforceable in court. These

terms must be contained within the agreement, and not in a separate

document headed 'Terms and Conditions', or words to that effect".

Secondly, on 18th February 2009, solicitors, who were by then acting for the defendant, sent to the solicitors acting for the bank a copy of what they called an expert report setting out the reasons why the agreement was in breach of Section 61(1)(a), and they went on:

 

"As you are aware it is our client's position that at the time he entered

into the agreement he was not provided with a copy of the terms and

conditions governing the agreement".

 

If one goes to the so called expert's report, one finds that it is in effect an opinion prepared by another firm of solicitors, and the opinion contains the following:

 

"Based on the information provided, it appears that the prescribed

terms and conditions were not included in the document signed by the

borrower. The agreement would appear to be in breach of the

regulations in that it does not contain within the signed agreement itself

all of the prescribed terms".

 

Thirdly, that point having been taken on behalf of the defendant, it was robustly rejected by the solicitors acting for the bank in their reply of 19th March 2009:

 

"Our client has sought counsel's opinion on this matter and her view is

that the agreement is compliant. We note that your client is arguing

that at the time of signing the agreement, the application for a credit

card, he was not provided with the actual terms and conditions which

were contained in a separate document to the application. Whilst our

client accepts that the application itself does not comply with the

requirements of the Consumer Credit Act 1974, and only becomes

compliant by reference to terms and conditions, there are references in

the agreement to the conditions in which it states that they are provided

in the Halifax credit card application pack".

 

Fourthly, going back in time a little, on 4th March 2009, in the defendant's witness statement made for the purpose of the trial of the issue, at the very beginning of the statement, in paragraph 3, he said this:

 

"It is my position that the agreement is not enforceable by the claimant

as it has failed to comply with its obligations under Section 61 of the

Consumer Credit Act 1974 by failing to include within the document

that I signed all the prescribed terms".

 

8. The absence of further reference to the point in the evidence is hardly surprising, since the point is one of law, on which there was no controversy as to the facts.

 

9. Miss Gardner has given no reason for the withdrawal of the action. She is in no way to be criticised for the omission. She is bound to act in accordance with her instructions, and those instructions were presumably to say no more than she has in fact said. But this does not prevent me from drawing what is in my judgment the only inference which can possibly be drawn from what has happened, which is that the bank realises that if the issue were to be

contested it would either lose on the issue or be at serious risk of losing. There may be hundreds of similar cases and the bank would plainly not wish other defaulting customers to get wind of an adverse decision on the fundamental point which is embodied in the quotation from Mr Berkley's written argument, which I have already set out.

 

10. Accordingly, I conclude, without hesitation, that there is no reason for displacing the presumption as to incidence of costs which is ordinarily applicable in a case of discontinuance. The bank will pay the defendant's costs of the claim, subject only to any existing order for costs in favour of the bank not being disturbed.

 

11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on the indemnity basis is appropriate.

__________

 

Yesterday, 10:36 #44 (permalink

 

PLEASE ENJOY ITS A GOOD READ

[alisindebt]

Hi

 

I am delighted with the help I have got on here.

 

I had 4 debts and have the following outcomes:

 

1. Abbey/MBNA did not keep records of the credit card and could not supply a CCA. They have written off the debt.

 

2. CapQuest sent an unenforceable CCA and sent a letter to me admitting that they cannot enforce it.

 

3. Egg credit card supplied an unenforcebale CCA.

 

4. Egg personal loan supplied an unenforecable CCA.

 

Either way, I work and live abroad and they cannot chase me through the County Courts, even if they tried. I have also received a PPI refund from Egg and a credit card charge refund from Abbey.

 

Total savings around 17 000 pounds.

 

Therefore, I have closed all contact with all of them and will disappear into the sunset.

 

I am so pleased with your help that I have made a donation to your site.

 

Thanks once again.

 

Al

[Bookworm]

 

and

 

[fedup74]

He he don't you just love it:D Well done:)

[saintly_1]

 

Enjoy your debt free life

[dx100uk]

hey

nice of you to post up

 

its rare we get a final result!

 

£17k blimey that was some PPI rip-off!

 

dx

[texanbar]

WELL DONE

 

enjoy the feeling of financial freedom

x:)x

[BlueSquirrel]

To update this thread, it turns out that the agreement is none enforceable and even CapQuest have confirmed that in writing. therefore they cannot legally chase this money, besides which I live abroad and so the County court system does not stretch this far!

 

 

Hello

I picked up on this post because I am abroad and a solicitor for Egg is threatening court action. Someone on another thread said they could maybe used substituted service. What can they do via county court if I am outside EU? This is also for an Egg Loan and they have never sent me a copy of my agreement

[alisindebt]

There has to be a reciprocal service between the UK and the country that you are in for this to happen. I am not aware of many countries that do this, but i believe Canada is one, you would have to do some research.

 

You can always try changing address, after 6 years there is the statute barred legislation.

[alisindebt]

Just to update you, CrapQuest, of course, said the CCA was enforceable. Well, they would say that wouldn't they?

 

So I explained to them that the "alleged debt" had previously been disputed by me and so i could not understand why Egg would pass it to a third party as that is against OFT regulations.

 

I got a letter today from Crapquest saying that they have closed the file.

 

Yippee!

 

Of course, they had to dish up some ***** to "punish" me, by saying that in their view the CCA was enforceable and that they would not refund the 1 pound fee for the CCA (I cheekily asked for that in my letter to them).

 

Many thanks to a friend for her "bemused" letter template which was instrumental in telling CrapQuest that there was a prior dispute with the OC, thereby precipitating the closing of the account.

 

Is it possible to send the "closed account" letter from Crapquest to the credit reference agencies and get the item struck off my file?

 

Also, can I invoice CrapQuest at, say, 20 pounds an hour for time wasted over the last year dealing with them?

__________________

[texanbar]

That's great news... well done al!

 

x:)x

[alisindebt]

Around 4100 pounds written off. The debt had already been set aside by the county court, as I live abroad, but Egg never told CapQuest:

 

[lmd75]

Well done alisindebt. Can you give me some advise as I too will be moving abroad. Just received back a typical uneforecable egg agreement and about to send off an account in dispute letter. Any tips in sorting all this out before my move date? Did you tell your creditors your overseas address? How do you prevent a DCA enforcing CCJ papers at your old address?

[alisindebt]

Different people approach it different ways. Some people "disappear abroad" and the whole account eventually gets written off, although this can take 6 years. Even so, some DCAs have been known to "deposit" small amounts of money, such as 1 pound, in cash, claiming that YOU did it, so the account remains open.

 

Personally, I told Egg and others that I was living abroad but they still tried it on. Yes, the good people at Egg actually took out a CCJ when I was away, at my old address.

 

When I received the correspondence in my 6 monthly batches of post, I contacted the county Court and said that I was not there. So it was set aside. However, the thoughtful people at Egg decided that even so, they would still employ a DCA to chase the debt. Of course, we all know that disputed accounts cannot be transferred lawfully to a DCA, but Egg decided to go ahead anyway.

 

They employed some company called CapQuest to chase the debt. In turn, they wrote to my old address, despite the previous dispute and also threatened CCJ actiion.

 

A lovely lady at CapQuest, let's call her "Ann MacDonald" (a completely false name for example purposes) offered to help by saying that I could pay small monthly amounts. Unfortunately, after a year or so, I discovered that the CCA was unenforceable and that it was illegal for Egg to sell a disputed debt to a DCA.

 

CapQuest wrote to close the account , although I did call the lovely Ann MacDonald to ask for my payments back.

 

Well, would you believe, she changed from being my helper to being my unhelper. All I did was ask for my payments back and got a torrent of abuse from her. I even offered to call her at home if that would be more convenient.

 

I suggest get all of your CCA and SARS done ASAP and notify them that you are going abroad. Try and go for a write off or a small settlement.

[lmd75]

Thanks alisindebt. I have CCA'd all my Credit card companies and have received responses. One is an old Egg agreement which is definetely unenforceable and the other three are missing signatures (but are relatively new 2007/2008 so I am not sure on these. I am going to start-up seperate threads for them.

 

Dispute Letters will be sent out this weekend. Did you let the creditors know your new address overseas?

Edited September 12, 2009 by lmd75

[alisindebt]

Eventually, yes, because I managed from abroad to write off the idiots at CapQuest (4900 pounds) who were illegally trying to chase an Egg loan, also the idiots at Lowell's (10500 pounds) who were trying to chase an Abbey credit card until I forced them to admit that they did not have the original CCA, they did not keep records back that far.

 

I am left with a second Egg loan, also unenforceable and have given them an opportunity to write it off. Finally, an Egg credit card, where they have repeatedly refused to give me card statements showing unlawful charges over the last 6 years (this would write off the card, so no wonder they don't want to give me this info!).

 

Why? Because I prefer to get the whole lot settled without leaving a mess behind, but it's up to those jokers now. They have messed around since 2005, so it's up to them.

[lmd75]

How do you handle receiving your mail from the UK? Is it best to have it sent to a PO Box and redirected? Is it possible for it all to be returned to sender automatically?

[alisindebt]

A friend was sending mine, but more recently I wrote to everyone and said, if you want me, here is my new address.

 

I am sure that the new person in your old address will soon send it back if they see DCA letters, etc.

 

Once you have notified then banks of your new address, you've done your job, but keep copies of notifying them otherwise they say they never received the letters.

[lmd75]

Thanks for your help.

[HE WHO DARES WINS :-)]

Hi Alisindebt

 

Sorry for contacting you without any sort of introduction however i came across your thread out of desperation really.

 

It looks as though my egg loan is very similar to yours, therefore could you please tell me what i need to look out for to see if it is unenforcable - i have no idea what to look for.

 

Cabot are such a nightmare and they are now pestering me. I waited for months (over 6) for them to send me this, had almost given up but it turned up in the mail the other day

Any help is hugely appreciated!

[alisindebt]

Hi Alisindebt

 

Sorry for contacting you without any sort of introduction however i came across your thread out of desperation really.

 

It looks as though my egg loan is very similar to yours, therefore could you please tell me what i need to look out for to see if it is unenforcable - i have no idea what to look for.

 

Cabot are such a nightmare and they are now pestering me. I waited for months (over 6) for them to send me this, had almost given up but it turned up in the mail the other day

Any help is hugely appreciated!

 

Glad to be of help, no problem. My story is posted on here already for you, including scans of my CCA and why it was not enforceable. There are various threads, including a success thread. Go to the top of page and click search. Put it my name and serach for either trheads or posts and you will find all the details there, inclduing the reasosn why the CCA was unenforeceable.

[HE WHO DARES WINS :-)]

Hi A

 

thats fantastic. My loan was in Arpil 2002 - is very simialr to yours aside from the fact that they made me pay PPI!

 

Aside from that though, and as it is missing the other signed terms and conditions i am guessing it is also unenforcable. I would imagine just based on the time i took it out, (i.e. it be so close to the date of yours) it will be the same kind of contract anyway and therefore unenforcable.

 

I am going to send the letter off that you have in one of your threads.

 

The info you have on here has been so helpful so thankyou so so much.