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    • Thank you for this. The first thing to be say is that this means that you are winning. It is pretty well unheard of in my experience for the bank to give way and finally return the money. The fact that they have done this under the threat of a judgement for breach of statutory duty indicates even more that they are worried about their position. Nowhere have they indicated that they have complied with the requirements of the Proceeds of Crime Act and inform the National crime agency. I don't believe they have and this is a very serious breach of statutory duty. Not only that it is a very serious breach of the FCA BCOBS regulations in that they are required to treat you fairly. Treating you fairly in this case means that they must comply with the rest of their statutory duties. It appears that they really haven't done this at all and that they have acted in an arbitrary way in disregard of the law and that they are hoping to get away with it. I find myself wondering how many other hundreds of people have been treated in exactly the same way – and you are probably the first ever to have stood up to them and to get them worried. I think I've already indicated that a press contact of mine in the Sunday Times would be very interested in this story. He has already run stories about the very poor standards applied by banks when deciding that their customers are involved in some fraudulent behaviour. The first thing to say about the letter which you have received is that they are trying to apply conditions to releasing your own money. It's your money and there should be no conditions and my suggestion is that you object to this. Secondly, not only are they threatening to continue to withhold your own money – but also they are saying that if they release it to you you will simply have the net figure without any kind of interest or compensation. It's clear that while they have had your money, they have invested it and earn money on it. They have probably been lending it out at between 16% and 20% and although the usual rate of interest is 8%, it seems to me that justice can only be served by repaying you your money plus the commercial rate of interest – at a compound rate. Normally the 8% is calculated at simple. Thirdly, they are not offering to pay you any compensation and clearly they are hoping to get away with it without any kind of sanction or not even a slap on the wrist.   Fourthly, they had the nerve to impose a seven day deadline. Don't worry about their deadline. It's a load of huff and puff. This is all part of their bluff game designed to intimidate you. At the end of seven days – what? Are they then going to insist on going to court? You can be certain that these people do not want to go to court. In fact they probably wish they had never started. Finally, they want the matter to be kept confidential – and I can't say I blame them. I would be ashamed if people knew that I had treated somebody else in this way and I'm sure they are worried about reputational damage. I'm also sure that there are extremely worried about what will happen if you get a judgement against them for breach of statutory duty. It will have to be reported to the FCA. It will have to be reported to the NCA. And of course it should be reported to the newspapers because people need to know what is going on. If you want, you can simply accept their proposal – get your money back, given confidentiality – and that's the end of the matter. However, you have no idea how this will impact on your record in the future. I imagine that they will bar you from ever opening an account with them again. – But at least you will have your money and you can get on with your life. However, if you want you can stand your ground and make it clear to them that you are going to be mucked around and treated like this and that you are prepared to go to court if they won't make a proper offer. I understand that you need to pay a court fee of about £350 in the next seven days. I expect that the bank is making this offer now hoping to dissuade you from spending any more money and hoping that you will back down. If you have the money to proceed then I would suggest very strongly that it will be a very serious sign of strength that you tell the bank that you're not interested in that you are paying the fee for the next stage of the court process. If the bank knows that you've called their bluff on this and that you have been prepared to invest further money in moving this legal action forward, then they will start to reflect and I can perfectly well imagine that they will make you another more interesting offer – once again on conditions of confidentiality. Without seeing the offer, I'm suggesting already that you will probably be best off turning it down. In any event, I would remind you going back several months that I already predicted that the bank would make you confidential offer – and that has happened. I'm not saying that I'm always going to be right here – but I think that now basically the bank have pretty well admitted that they need to pay you your money, there is no chance of you losing it. You will get your money and it really is just a question of how much else you will get in addition. If you'd like to continue then let me know and I will suggest a draft response to them.
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Final stages of Egg CC reclaim – won't send cheque


bornrich
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I'm at the final stages of securing a refund for charges on my Egg credit card over 6 years. I'm presently in discussion by email with Rosling King Llp solicitors over terms of acceptance of what appears to be no more than a gagging order.

 

A case has been filed at County Court and we are at a stage where time is running out for Egg. Egg are wanting to agree out of court for commercial sensitivity reasons but are dragging their heels. First they wanted another 14 days – I've given then 7. Now we are in a tangle over payment of the refund. Egg wants to pay it into my account. I want a cheque.

 

The issue I have with paying it into my old Egg account is:

a) The account was closed months ago

b) Egg instructed DLC and presumably the account was passed over to them.

c) The penalties I paid over the years were paid with real, hard-earned cash. Now I want payback.

 

My question is: Do I have a right to demand the method of payment?

In anyone's experience, will Egg back down? And what happens if they agree to a cheque, I sign the agreement and then the account is credited instead?

 

And the worst: Should I just accept happy in the knowledge that I won but Egg just reduced the balance on a non-enforceable agreement account?

 

Egg has until 1st September before the court requires a response. I've already taken Lloyds to court over unfair charges and have managed to freeze the account pending the test case resolution. So if I have to go to court I'm not that fazed.

 

Advice much appreciated.

 

Bornrich

 

P.S. I've been a lurker for some time but am taking the fight to the banks and now need specific advice.

 

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Stick to your guns and go for max. Why only 6 years? You could claim for everything back to 1995 as unfair charges are money paid under a mistake.

 

If you have the upper hand then you can insist upon payment in any form you want.

 

If you want to frighten the other side then tell them thqt you will be amending your claim so that you ask the court for restitutionary damages - with the 8% interest in the alternative. That may concentrate their minds.

 

However, don't forget that at the end, it is your case and your risk.

 

However, if Egg are already trying to negotiate a settlement then you have probably got them where you want them.

 

If you have charges going back further than 6 years then tell Egg that you are amending your claim to include the missing charges and that you will be seeking restitutionary damages.

 

Frankly, don't bother to bluff them. Carry out your threat exactly.

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Thank you BankFodder. Will keep the forum posted as to the outcome.

 

Once I've done with Egg my next target for reclaiming is MBNA, then RBS and finally my good friends Lloyds TSB...

 

Bornrich

 

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This is an update.

 

Egg have emailed today with this:

 

Dear [bornrich]

 

Following our telephone conversation yesterday I write to update you regarding your claim against Egg Banking Plc.

 

Our client has credited your account with the sum of £498.68, comprising the total amount claimed in the sum of £453.66 together with the Court Fee paid on the issue of proceedings in the sum of £45. We have informed the Court of this position and we now consider this to be an end to the matter.

 

---END---

 

Obviously this is great news as it's a WIN from Egg BUT I'm not going to see a penny as the (unenforceable) account in question is in arrears by many thousands and will simply be swallowed up.

 

Question: Can Egg do this? Can I do anything more to get a cheque off Egg?

 

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The issue I have with paying it into my old Egg account is:

a) The account was closed months ago

 

b) Egg instructed DLC and presumably the account was passed over to them.

 

c) The penalties I paid over the years were paid with real, hard-earned cash. Now I want payback.

 

My question is: Do I have a right to demand the method of payment?

In anyone's experience, will Egg back down? And what happens if they agree to a cheque, I sign the agreement and then the account is credited instead?

 

And the worst: Should I just accept happy in the knowledge that I won but Egg just reduced the balance on a non-enforceable agreement account?

 

 

It sounds like you have been dealing with Egg not DLC, and Roslin King solicitors have been acting for Egg not DLC. If so, it sounds like that they have cancelled your card privileges but retained your account on their IT system. Do you still get monthly statements? If your debt has not been sold to a third party, then Egg remains the owner of same. The balance has not been "Charged Off" to zero and sold for a fraction.

 

If so, then I would think it difficult to convince a judge why charges imposed upon the account cannot be wiped from an account still in Egg ownership, and that in refunding the account they are refunding your good self.

 

When a cardholder pays in, the T&C will stipulate that payments will wipe out different categories of outstanding balance in a preset order, because they attract different rates of debit interest. I know for sure that cash advances will be reduced before purchases. Not sure where penalty charges come in this sequence. Your only possible argument could be that your payments demonstrated from past statements to have wiped out your penalty charges, and so no charges remain left on your account available for refund cancellation by Egg.

 

If Egg remains the legal owner it would seem a long shot to try split hairs with the judge. In the past where Egg wanted to "reduce the balance outstanding at the DCA" they were quite upfront about it, and when challenged they caved in, because they realise that no longer having legal ownership of the balance outstanding and with the account dead and sold, Egg will have no way to discharge the legal obligation to refund except by BACS or cheque.

 

Asking for £45 legal expenses refund straight into your hand sounds much more reasonable. Egg never debited your account with £45, so they cannot refund same into the account. This £45 could be an amount you borrowed from elsewhere due to Egg's intransigence. If they do not fancy a court appearance over £45 they can refund you direct.

 

As for the debt unenforceable angle, that opens up another question. If the account agreement is alleged to be null and void from the beginning and the court is urged not to get involved enforcing said agreement, then why is the court asked to get involved in a refund of charges based on a null and void agreement?

 

 

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As for the debt unenforceable angle, that opens up another question. If the account agreement is alleged to be null and void from the beginning and the court is urged not to get involved enforcing said agreement, then why is the court asked to get involved in a refund of charges based on a null and void agreement?

 

MisterMind,

 

Interesting reasoning but if Egg pursued this line then, surely, they would be admitting that the account is indeed unenforceable.

 

I've decided to pursue the £45 and will donate it to CAG when I win.;)

 

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Unenforceable Agreement cases in the pipeline, variously estimated at 15,000 to 100,000 are being non-uniformly stayed pending verdicts on carefully selected Test Cases routed for the Commercial Court, and on appeal to the High Court and beyond.

 

The truly future-facing lawyers on both sides will be alive to the question, that in pursuing refund of penalty charges based on the terms of a signed legal agreement, might a claimant be declaring his position de facto that he recognises the agreement to be valid and enforceable?

 

Can an agreement be accepted for being valid in one part,

and a minute later be rejected for being invalid in another part?

 

Can a debt towards a cardholder be enforceable,

but a debt towards the card company be unenforceable?

It remains to be seen.

 

 

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Mastermind,

 

Okay, this is interesting. Let's assume that the agreement is unenforceable from inception not just from the moment the claimant discovers that it is through an often long and protracted process of extracting a 'true copy' from the card company. We would therefore have the two scenarios:

 

1) If the claimant makes it known that she/he is aware of the unenforceability of the agreement and then proceeds to claim charges back she/he could do so on the grounds that the agreement was null and void and that all monies – after deduction of sums borrowed from the card company minus the interest the card company applied – should be paid back. The calculations for doing all this would probably tax Einstein for a full ten minutes.

 

2) If the claimant is unaware of the fact that the account is unenforceable then she/he will pursue the claim for refund of charges and the card company will eventually return the charges not because they think it fair but because they wish to continue the status quo of charging the general public over the odds for a simple automated (in most cases) process.

 

There is another scenario.

 

The card company will also be aware of which agreements are enforceable and which aren't. I wouldn't be surprised if all the card companies had done an extensive audit on this. So, if a claimant then pursues a reclaim of charges through the courts, shouldn't the card company inform her/him that they are aware that the agreement is unenforceable and that the claimant could, in fact, go with scenario 1 above.

 

As for this exchange with Rosling King and Egg, I've requested proof that Egg is indeed the owner of the account as I've been communication with DLC for at least 6 months. I've also requested a cheque for the £45 court fees as per your suggestion. And if I'm not satisfied that Egg is still the owner of the account? Let's see what happens first...

 

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:D Please, you misaddressed my cousin, I am merely Mister Mind.

 

Reclaim of penalty charges has been retrospective, as is reclaim of debt owing, so I cannot see how the timing of a cardholder's opinion and intention with or without knowledge comes into it. Whether a linkage and precedent will be accepted by the judge between the two categories of reclaims remains to be seen. I would surmise it would be very unlikely that card companies would ever dream of retrospectively reverse-reclaiming the previously reclaimed and refunded penalty charges, should card agreements ever be ruled as null and void in total, so that the contract-breach penalty charge precedent of Dunlop-v-Garage becomes irrelevant.

 

Conceivably future reclaims of unlawful charges based on an agreement ruled as legally null and void might be impacted -- if the card company cannot reclaim their lendings, can the cardholder reclaim their charges?

 

As I understand it, "unenforceable agreement" denotes a passive insufficiency, not an active exclusion. An "unenforceable agreement" defective in itself can be enforced after a judge in court so rules. A Test Case ruling will bring uniformity and consistency to verdicts.

 

"Unenforceable" is not a condition precluding the opposite for all time, nor would it help to tackle it like a scientic query by poring over the text with magnifying glass and measuring rod. Parliament does not dictate verdicts in court. Nor does the executive branch, not even the Prime Minister. The judges pass the verdicts in court and decide what the courts will enforce.

 

The latest court ruling on OFT-v-banks is that the OFT should be given a say on the level of bank charges, but until the issue is settled in the court of ultimate appeal, there is basically no answer maybe for another two years.

 

Different card agreements are allged to be "unenforceable" for being short of specific express terms. If a Test Case materialised as Cardholder-v-Egg and the verdict came out as legally enforceable then it looks doubtful if Cardholder will have the funds or expertise to appeal all the way. It looks unlikely the OFT will take up the "unenforceable" cudgels for consumers.

 

If Egg with 2 million cards loses the Test Case then with hundreds of £millions if not £billions at stake you would think it extremely improbable for Egg not to appeal all the way to the summit taking years.

 

The OFT-v-banks Test Case have stayed all bank charges reclaim lawsuits since August 2007, possibly until 2011. If a similar 4-year court stay stops debt collection lawsuits, that could bankrupt some credit cards.

Edited by Mistermind
typo

 

 

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Good luck with £45 claim. :)

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/198059-unenforceability-cases-hold-until-33.html#post2405682

 

As far as we know, the Chester test cases are due to be heard in the Commercial Court in London w/c 30 September and the Manchester test cases (which apparently affects some cases from Liverpool County Court) are due to be heard in the Adminstrative Court sitting in Manchester w/c 8 October.

 

 

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