Egg Loan CCA - Enforceable?

[thirty-n-fat]

Egg have resoponded with the following, is this enforceable?

 

http://img182.imageshack.us/img182/6144/egg01.jpg

http://img31.imageshack.us/img31/7637/egg02.jpg

http://img31.imageshack.us/img31/6307/egg03.jpg

http://img31.imageshack.us/img31/3824/egg04.jpg

http://img17.imageshack.us/img17/3087/egg05.jpg

 

I am sure that I did receive a copy of an agreement which I physically signed and sent back before funds were released.

 

Are they trying to mug me off with this?

[alisindebt]

This is very similar to the agreement that I have, although yours appears to be of a later date. Unfortuanetly, you removed the date, but my two were around 2002 and 2003. They have added a couple of extra pages to yours. However, the main thing is that the prescribed terms and conditions are missing, as was the case with mine. These T+Cs should either be part of the main body of the agreement which would therefore be much longer, or they have to be in a separate document signed by both parties and this should have been sent as part of the CCA to you. Clearly this has not been done in your case and this was exactly the same in my case. Looking over other other agreements from Egg on the forums, this would seem to be a common mistake by Egg. Without the T+Cs being prented in the way that I have described the CCA is unenforceable. As far as the signature is concerned, you would need to find a copy of your original agreement at home if you think that this one has been doctored. However, a missing signature in an agreement can be remedied in court and would only render the CCA non-compliant, rather than unenforceable.

 

Since you have no T+Cs and, incidentally, no cooling off period mentioned, then your agreement is non-enforceable. If you want, you can send this letter to Egg. Then they cannot add interest to the account or ask for payments, etc:

 

Account In Dispute

 

Dear Sir/Madam

 

Re: my request under s78 of the Consumer Credit Act 1974.

 

Thank you for your recent letter sent to me dated **DATE**, the contents of which are noted. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter, dated **DATE**. Upon receipt of the original request the specified account legally entered into disputed status.

 

My request remains outstanding. The supplied documentation does not constitute a true copy of a credit agreement and that which you sent doesn't even contain all the prescribed terms and is not 'properly executed'. The statements sent do not correspond to the amount stated in your earliest correspondence and therefore they do not satisfy the requirement to supply me with a statement of account.

 

As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

You had until **12 days DATE** to provide me with the true copy I requested. After that date you entered into default of my request. Whilst the account is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agencies (or any third party).

 

To register information with a credit reference agency, you must have written consent from the data subject to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office.

 

The time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 working days of a proper CCA request. If you fail to comply with a legitimate request the account enters a default situation. . You entered into a default on **12 Days DATE**

 

Therefore you have 7 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint, otherwise your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards. Any investigation undertaken by them may affect your ability to hold a consumer credit license in the future.

 

Take further note that continued telephone calls after the receipt of a request not to call may constitute a criminal offence under Section 127 of the Communications Act 2003.

 

Communicate in writing and ONLY in writing, your telephone calls will NOT be answered.

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

 

I would appreciate your due diligence in this matter.

 

I look forward to your reply.

 

Yours faithfully

 

Egg have resoponded with the following, is this enforceable?

 

http://img182.imageshack.us/img182/6144/egg01.jpg

http://img31.imageshack.us/img31/7637/egg02.jpg

http://img31.imageshack.us/img31/6307/egg03.jpg

http://img31.imageshack.us/img31/3824/egg04.jpg

http://img17.imageshack.us/img17/3087/egg05.jpg

 

I am sure that I did receive a copy of an agreement which I physically signed and sent back before funds were released.

 

Are they trying to mug me off with this?

[thirty-n-fat]

Thanks for this alisindebt - I really appreciate your advice on this and this breathing space is just what I need to get myself on my feet.

 

Just for your information, the data of the agreement is Novemebr 2005.

 

Should I continue to make payments at this stage? I ask as they only decided to take this seriously when I delayed payment.

 

Will keep the forum up to date with progress.

Edited July 30, 2009 by thirty-n-fat

[texanbar]

I'm about to send the exact letter to Egg regarding my loan so will be subbing with interest.

 

Good luck, incidentally will be withholding payment from next month (August) and donating it here.

 

x:)x

[thirty-n-fat]

I'm about to send the exact letter to Egg regarding my loan so will be subbing with interest.

 

Good luck, incidentally will be withholding payment from next month (August) and donating it here.

 

x:)x

 

Good to know Im not the only one - its very daunting! Is the lack of cooling off period enough to make it unenforceable?

 

I was thinking of saving the money just in case it turns out that I have to pay it back with fines if this all goes wrong.

 

They are calling a lot and I have told them to write to me. Also they have sent me an emial asking me to sign in to the website to see a message, is it best to deal with them by letter only or is the website safe so long as I record what is on screen?

[texanbar]

Well I'm no expert on the unenforceability of the loan and like you, am still increasing my knowledge around the whole consumer acts. I did the same on my credit card so who knows.

 

As long as you can keep a copy of any message, it is always best to communicate in writing. Good luck.

x:)x

[gh2008]

However, the main thing is that the prescribed terms and conditions are missing, as was the case with mine.

 

 

Out of interest (groan) - which prescribed term(s) are missing?

[alisindebt]

Originally Posted by 8.1 What are ‘prescribed terms’?

 

S61(1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60(1) – see Q1.14.

 

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and s127(3) – see Q8.2.

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* (s77) amount of credit – see Q8

 

* (s78) credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

 

 

Also check out Peter Bard's excellent thread on the subject: Agreement Enforceability - The Consumer Forums

Yes I know it's an OTR link, but Peter Bard has done some outstanding work with CCA.

 

 

So how does all this help us and our debt ?

 

Well without the correct paperwork, that complies fully with CCA, the DCA's are basically (insert word of choice) stuck.

 

Now you may notice that there is no mention of signatures here.

Yes without both, yours and theirs, the agreement isn't properly executed.

This can be rectified by court action, assuming the terms are all present.

 

Of course an agreement that doesn't contain your signature AND personal details is unenforceable anyway. Many DCA's hide behind SI 1983/1557 concerning omitted information, but this DOESN'T apply to a CCA request, I'll explain why later.

 

The Consumer Credit (Cancellation Notices and copies of Documents) regulations 1983 (SI 1983/1557) is only applicable in conjunction with The Consumer Credit (Prescribed Periods for Giving Information) Regulations) 1983 (SI 1983/1569) and are only applicable to the Consumer Credit Act 1974 sections 58,62,63,63 and 64. The CCA request is a statutory request made under the Consumer Credit Act 1974 section 77-79 and therefore the copy of the credit agreement requested must be a true copy of the fully executed agreement.

 

Yes its anal, but that's CCA for you

[gh2008]

Being a post 2005 agreement I thought that electronic signatures (tick boxes) were ok?

 

I still don't see which prescribed terms are missing in the agreement though, the amount of credit, repayments and interest rate are all there.

[thirty-n-fat]

alisindebt - I bow down to your knowledge!

 

But this can only be a stalemate with us throwing ourselves to the mercy of a judge?

[alisindebt]

in all probability it won't go to court. Firstly it's up to the creditor to prove the debt, so you don't necessarily have to go to court. You just stick to the fact that they have not provided you with a true copy of the original CCA, so cannot enforce it through court. it is highly unlikely that they will go to court to try and enforce it, as the judge is likely to find against them. So, as you say, a king of stalemate, but a good one in the sense that they cannot lawfully add charges and interest, nor can they ask for payments, nor do you have to make any.

[alisindebt]

The agreement refers to standard terms and conditions. These should either be part of the body of the CCA, which would then be a few pages longer. Alternatively, they could be in a separate documents, however, that would have to be signed by both parties. Egg never did that in any case that I have seen on here. So some prescribed terms and conditions are missing and it is an unenforceable CCA.

[hammered]

hows this going ?

[alisindebt]

hows this going ?

 

I always wait quite a long time, especially as I live abroad-they always end up shooting themselves in the foot.

 

At last, they at least write to my address abroad and have twice attempted to use external DCAs to try and collect threat of CCJ. I always send a "bemused" template letter back, saying that i am surprised I have to point out thsat with a prior dispute, they cannot give the debt to a third party and threatneing CCJ is vexacious and harassing when they know I am abroad and therefore the CCJ does not apply.

 

Slowly letting them no they will never collect.....