Is My Egg Cca Enforceable??

[exasperated]

Hi all,

I sent a cca request to Egg some time ago and since then they have been giving me a hard time. I have stalled them saying that I will do nothing until I see the CCA but unfortunately today the CCA turned up. It was in 2 parts as copied below with also around 30 pages which seems has been copied off the website which they are presumably saying was part of the agreement.

Has anyone any comments on its enforeceability

Thanks

Exasp

PART 1

 

 

PART 2

 

[foolishgirl]

I think egg agreements can be very iffy. PT has a great thread on them in the Egg forum. Suggest you ask a mod to move this post there & you may get more specific advice from others who have been there, exasperated.

[exasperated]

Thanks FG,

Have done as you said

Regards

Exasp

[maroondevo52]

Thread moved

[exasperated]

Hello everyone,

Seems I have the same agreement as alot of others here which we are advised is unenforceable.

Therefore I have a letter I intend to send to them with a F&F settlement request.

Please could you have a look and let me know your opinions

Thanks and regards

Exasp

 

[pedross]

Hi Exasp

 

You are learning fast, looks ok to me. Not sure how Egg have responded to a F & F based on the argument and will be interesting to see.

 

Do you mean 'pursue' though rather than 'peruse' in the last but one paragraph.

 

Pedross

[exasperated]

Hello Pedross,

Yes I did mean pursue rather than peruse, thanks for pointing this out

Nice to hear from you again

Exasp

[exasperated]

Hi,

Sent a CCA request to Cabot who send they did not have the CCA and it was now Barclaycard who owned the old 'Goldfish' account. Sent a second CCA request to barclaycard using the 'GoldFish' account number and they returned the £1 PO saying cannot trace the account.

The original CCA request was sent to cabot on 20th August so as they are processing my data and receiving payments via my DMP does this now mean that they have had the 12 + 2 days required?

Also any suggestions on the next step

Thanks

Exasp

[pedross]

The next step is to find out who is receiving the payments from the DMP and if it is Cabot or Barclaycard show them the letter stating that they cannot trace the account and ask them to stop paying and point out that there is no reason to pay as there is no account.

 

If they are paying someone else write to them.

 

Pedross

[exasperated]

Hi Pedross,

Oops I uploaded the wrong thread that was for my cabot account but just to keep you informed I have sent them the letter above which you approved (changing peruse to pursue as you said) so will wait to see what they respond with and report back

Thanks for your help again Pedross

Exasp

[exasperated]

Hi,

Egg have replied to my letter in dispute and I would like to collect thoughts on what I should reply to them

Letter in two parts below

Thanks

Exasp

 

 

[seriously fed up]

Its interesting, I think, that they have replied to you before the High Court case has been determined. This might reflect confidence in their chances of success. Or alternatively they might just be "trying it on".

For one thing, I would write back and ask them where "Approved Limit" is specifically defined (and thus clearly understandable) ? I have just gone through the regs (1983/1553) and"Approved Limit" appears NOWHERE at all (indeed the word "approved is never used in any context). Its ALWAYS - ONLY EVER - Credit Limit.

The argument that "there is no requirement to use a particular phrase to describe the amount of credit" is interesting. On the one hand, it is correct to say that the creditor doesnt have to specify the amount of credit - its enough to set out how this will be determined. BUT it is still the case that the Regulations only refer to "Credit Limit". This seems to me to be little better than sophistry.

It does seem to be confirmed by their subsequent reference to 8(b) which actually reads

(b) a statement that the credit limit will be determined by the creditor from time to time under the agreement and that notice of it will be given by him to the debtor;"

It would seem to me that what they are trying to do is cause confusion by pointing out that they dont have to specify the exact amount of credit - which they dont - but they are also alleging in telling the debtor that their limit will be determined as set out in 8(b) they can use the phrase "Approved Limit" rather than "Credit Limit". So its back to where is "Approved Limit" specifically defined. I suspect that they might say to this that its in their T&Cs (I cant find it in the Regs), but, of course, it has to be in the signature document. Therefore unless they can persuade the High Court that "Approved Limit" is close enough to "Credit Limit", they have a problem.

[exasperated]

SFU,

Great reply and exactly what I was hoping to get back, thanks. PT has taken egg on and won a number of times apparently and I am hoping that this is not the only issue we are relying on. I will re-read his thread and post any other 'issue's' with the egg agreements

Appreciated!!

Exasp

[exasperated]

Hi,

I am trying to negotiate a F&F with all my creditors but as usual they are playing hardball.

Here is a reply to a letter I sent them informing them that their agreement could be challenged by me personally or a CMC or an employed consumer barrister as unenforceable in a court of law. The idea was to get them to begin negotiations as soon the parents money will dry up and then all the non enforceable agreements of mine will be left in the cold which I don't want to happen.

Anyone any thoughts as to the reply I should send with a view of obtaining a satisfactory F&F

 

 

Thanks

EXASP

[exasperated]

Reading PT's thread 'egg agreements what do i think is wrong with them'

I intend to put these facts to Egg.I fancy that their next move will be based on my reply so anything anyone can add would be appreciated..

 

Dear EGG,

You have asked me to state why I consider your agreement unenforceable at law and the reasons are this...

Firstly, the word Approved Limit is used, which is insuffucient to advise me what the credit limit is or how it will be decided therefore a perscribed term is not correctly stated.

The case i refer to is Central Trust Plc V Spurway [2005] CCLR,where HHJ Overend states:

 

24. In my judgment, the passages of Lord Nicholls’ speech cited by Mr Say persuade me that:

 

(a)The amount of credit must mean credit in its technical sense, and

(b)That although the use of the word “credit” is not prescribed, there should not be any confusion in the mind of the lay reader as to what the amount of credit is

 

Following HHJ Overend’s view, the agreement should make clear to the consumer, who is likely to be a lay man, what the credit limit is or how it will be determined. It is not possible to say with any certainty that the documents EGG have provided are clear, unambiguous or that a consumer would understand that the approved limit would be their credit limit.

 

secondly, the agreements fail to state the rate of interest for cash withdrawals. From what i have seen the agreement only states an APR which is not sufficient for cash purchases as cash purchases includes a 1.25% handling fee which is included in the APR so it cannot be an accurate reflection of the rate of interest. Again a prescribed term is missing

 

Finally you will purport that the missing information is set out within your terms and conditions, for which I have to inform you IT CANNOT BE. The reasons for this is that Regulation 2 (4) Consumer Credit Agreement Regulations 1983 (SI1983/1553) requires that the statutory information set out within Para 3-19 of schedule 1 and 2 SI1983/1553 should be shown as a whole and not interspersed with other information if the agreement is to be properly executed and compliant with section 61 CCA 1974

 

 

Also it is worth noting that, Paragraph 22 of Schedule 1 Consumer Credit Agreement Regulations requires that the agreement details the default charges payable and your Agreements DO NOT

 

We have the details to hand of Mr Bradley Say of Gough Square Chambers London.

Kind Regards

Exasp

[seriously fed up]

I would stand by what I said originally - that they are going to stall till the High Court case is determined. Of course that could change many things as if they lose the agreement is not enforceable, as we have been claiming all along. In that case they can either be annoying (in which case we might pay them to go away) but at the end of the day, they could only recover whatever they could without the backing of the legal system. In this respect, I was interested in the final paragraph of your letter (which pretty much repeats the points I made in a letter to them in September, seeking an F&F - no reply at the time of writing this btw) that you " have the details to hand of Mr Bradley Say of Gough Square Chambers London". What exactly was it you meant by that? Have you had the agreement reviewed by Mr Say who, I know, specialises in consumer credit law?

I hope I am wrong about them stalling, but my own experience suggests that they probably will carry on doing so, as the alternative is perhaps worse (for them)?

[exasperated]

SFU,

I am lead to beleive that Egg have already lost bouts in the legal system with these agreements. I mentioned Bradley Say as I am considering forwarding this agreement to his chambers for review should Egg take me to court. That is subject to certain matters I won't expand on here on this thread.

It is fustrating that you have not received a reply to your F&F request as quite simply you are trying to do the honourable thing as am I.

Do you have any other valid points to add to my letter?

[angry cat]

I believe that you have already laid out your case to Egg.

 

I would just write back and state that your position remains the same and that, your F&F offer was made in an attempt to bring the matter to a mutually satisfactory end, without the need for court action.

This offer remains open for a further 28 days.

 

Why havn't you reclaimed your penalty charges?

[exasperated]

AC,

Thanks for the reply, I have SAR'd them and wil be reclaiming the charges upon receipt of that info.

I will be withdrawing my offer of waiving those charges as part of my F&F when I next write to them

[seriously fed up]

Exasperated, couple of points re your letter, on the basis of a letter I had from Egg just this morning

1. re default charges, if your agreement is like mine, they say that the default charges are in paragraph 17 - havent checked yet - but I think its a less important point relative to the prescribed terms;

2. they will cling to "approved limit" is ok, though for no reason. What do you make of "we have been advised by our solicitors that paragraph 3 of schedule 6 of the Regulations (they mean the 1983 ones, but dont say which 1983 regs as there was more than one set - and what is more i dont think you need to dig as deep as schedule 6) state the Agreement must include a term stating the credit limit or the manner in which it will be determined or that there will be no credit limit". We would respectfully refer you to Condition 3 of the Agreement where it states 'LIMIT - Again we will tell you from time to time the approved limit wehave set and if dfferent the individual limit which you have chosen for the account". This is basically what I said to them, other than my observation that Approved limit does not equate to Credit limit. Put another way they will ignore you and say they have satisfied the Regulations.

You might want to add something about the heading of the agreement (I assume your's is like mine and headed Egg Agreement with ....) - I told them " 1.you aver that this does not have to be prominent and can be interspersed. Re the latter point, I would respectfully draw your attention to the Consumer Credit Act Regulations 1983 (1983/1553) section 2, paragraph 4, which states

“Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain, shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below--

(a) the nature of the agreement as set out in paragraph 1 of Schedule 1 to these Regulations;”

If we look at paragraph 1 of Schedule 1, this makes clear that the order of presentation required by paragraph 4 of section 2 requires the agreement to be headed "Credit Card Agreement regulated by the Consumer Credit Act 1974". The document you have sent to me quite clearly fails to do this. But they will probably ignore this as well.

They conclude by saying that as far as they are concerned everything is just fine and I remain liable for the full balance, and at this stage they wont write off anything. I havent pushed a claim (though I have asked) for return of charges, which at the time of writing stands at £1167. I dont want to kick all this off before Christmas, but if I dont get anywhere with them, I am inclined to put in a small claim on them at my local court - the papers are all prepared. See how they like that. :twisted:

[exasperated]

Thanks sfu,

What I am trying to do here is get a template letter which will counter all their previous arguments and all persons who are at the same stage as us can simply forward that letter erasing the need for further correspondence.

In my instance though I do want to get a F&F with them so it will not be the same, that said, if we get the template letter correct we may be able to push them towards this as you have stated in other threads.

Your reply is very relevant and although I have not got the time today hopefully I will be able to update my letter and post here for your perusal very soon

Thanks again

[seriously fed up]

Ok, I am subscribed to the thread (obviously) - so happy to contribute what I can.

My reservation is that I really despair of ever being able to conduct a rational conversation with these people. I had one lender take me to court over the summer, then they decided to drop the case. Now this wouldnt be out of charity on their part, but because they knew they werent going to win and didnt fancy the precedent - which I suppose IS rational to be fair. But even then they didnt admit that I was right and they were wrong. It was on a "commercial basis and without admisssion of liability". They are NEVER wrong and while I agree getting an F&F would be a neat line underneath all this, allowing us to move on, I wonder if their view is "100% or nothing at all".

[exasperated]

Exasperated, couple of points re your letter, on the basis of a letter I had from Egg just this morning

1. re default charges, if your agreement is like mine, they say that the default charges are in paragraph 17 - havent checked yet - but I think its a less important point relative to the prescribed terms;

2. they will cling to "approved limit" is ok, though for no reason. What do you make of "we have been advised by our solicitors that paragraph 3 of schedule 6 of the Regulations (they mean the 1983 ones, but dont say which 1983 regs as there was more than one set - and what is more i dont think you need to dig as deep as schedule 6) state the Agreement must include a term stating the credit limit or the manner in which it will be determined or that there will be no credit limit". We would respectfully refer you to Condition 3 of the Agreement where it states 'LIMIT - Again we will tell you from time to time the approved limit wehave set and if dfferent the individual limit which you have chosen for the account". This is basically what I said to them, other than my observation that Approved limit does not equate to Credit limit. Put another way they will ignore you and say they have satisfied the Regulations.

You might want to add something about the heading of the agreement (I assume your's is like mine and headed Egg Agreement with ....) - I told them " 1.you aver that this does not have to be prominent and can be interspersed. Re the latter point, I would respectfully draw your attention to the Consumer Credit Act Regulations 1983 (1983/1553) section 2, paragraph 4, which states

“Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain, shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below--

(a) the nature of the agreement as set out in paragraph 1 of Schedule 1 to these Regulations;”

If we look at paragraph 1 of Schedule 1, this makes clear that the order of presentation required by paragraph 4 of section 2 requires the agreement to be headed "Credit Card Agreement regulated by the Consumer Credit Act 1974". The document you have sent to me quite clearly fails to do this. But they will probably ignore this as well.

They conclude by saying that as far as they are concerned everything is just fine and I remain liable for the full balance, and at this stage they wont write off anything. I havent pushed a claim (though I have asked) for return of charges, which at the time of writing stands at £1167. I dont want to kick all this off before Christmas, but if I dont get anywhere with them, I am inclined to put in a small claim on them at my local court - the papers are all prepared. See how they like that. :twisted:

 

The explanation for the term 'approved limit' is smoke amd screens, evidentally as PT has taken them to court on this and apparently not lost(in addition to other points in my letter).

The point re 'the heading' will be included in my revised letter, why not, it is as valid as the approved limit argument in my eyes, so thanks for that one.

May I ask, the charges that stand at £1167 what do they consist of?

Lastly re your claim I would be very interested in your thread if you decide to post it on here.

[exasperated]

Hello,

Here is the letter I intend to send EGG with the inclusion of SFU's heading discrepancy..

If anyone has any other suggestions please feel free to post

 

Dear EGG,

You have asked me to state why I consider your agreement unenforceable at law and the reasons are this...

 

• The word Approved Limit is used, which is insuffucient to advise me what the credit limit is or how it will be decided therefore a perscribed term is not correctly stated.
  The case i refer to is Central Trust Plc V Spurway [2005] CCLR,where HHJ Overend states:
  24. In my judgment, the passages of Lord Nicholls’ speech cited by Mr Say persuade me that:
  (a)The amount of credit must mean credit in its technical sense, and
  (b)That although the use of the word “credit” is not prescribed, there should not be any confusion in the mind of the lay reader as to what the amount of credit is.
   
  Following HHJ Overend’s view, the agreement should make clear to the consumer, who is likely to be a lay man, what the credit limit is or how it will be determined. It is not possible to say with any certainty that the documents EGG have provided are clear, unambiguous or that a consumer would understand that the approved limit would be their credit limit. You may also wish to consider other elevant case law to running credit agreements in particular:
  1. Wilson v Hurstanger, where LJ Tuckey makes clear that the prescribed terms MUST be there;
     
  2. Wilson v First County Trust where Sir Andrew Morrit says that if the creditor got it wrong the money must be a gift.
     
  3. Wilson v Secy of State for Trade and Industry where it is stated: Wilson and others v Secretary of State for Trade and Industry [2003] UKHL 40 paras 4 & 71confirms that errors in the prescribed terms preclude a court from making an enforcement order and that Parliament expressly intended that such errors should render credit agreements unenforceable. At para 49 Lord Nicholls of Birkenhead stated
     “The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan… 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"
     

  [*]

  [*]

  The agreements fail to state the rate of

  interest for cash withdrawals. From what i have seen the agreement only states an APR which is not sufficient for cash purchases as cash purchases includes a 1.25% handling fee which is included in the APR so it cannot be an accurate reflection of the rate of interest. Again a prescribed term is missing

  [*]

  The heading of you credit agreements is worded in contravention of the Consumer Credit Act Regulations 1983 (1983/1553) section 2, paragraph 4, which states:

   

  “Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain, shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below--

  (a) the nature of the agreement as set out in paragraph 1 of Schedule 1 to these Regulations;”

  If we look at paragraph 1 of Schedule 1, this makes clear that the order of presentation required by paragraph 4 of section 2 requires the agreement to be headed "Credit Card Agreement regulated by the Consumer Credit Act 1974". The document you have sent to me quite clearly fails to do this.

  [*]

  Also it is worth noting that, Paragraph 22 of Schedule 1 Consumer Credit Agreement Regulations requires that the agreement details the default charges payable and your Agreements DO NOT

   

   

   

   

Finally you will purport that the missing information is set out within your terms and conditions, for which I have to inform you IT CANNOT BE. The reasons for this is that Regulation 2 (4) Consumer Credit Agreement Regulations 1983 (SI1983/1553) requires that the statutory information set out within Para 3-19 of schedule 1 and 2 SI1983/1553 should be shown as a whole and not interspersed with other information if the agreement is to be properly executed and compliant with section 61 CCA 1974

 

We have the details to hand of Mr Bradley Say of Gough Square Chambers London.

Kind Regards

Exasp

Edited November 23, 2009 by exasperated

[seriously fed up]

That looks not bad, though I would still be doubtful that you will ever get them to admit that you are right (even - or particularly - if they know you are - but we can only try).

Couple of points

First they may try to tell you that the Central Trust case isnt about credit cards (which is true I think - quite unusual "lender tells truth"? ). On the other hand, it is a case heard under the powers of the Consumer Credit Act, so one would imagine the logic would be the same no matter what kind of lending. However, you might also want to try some other cases -

 

1. Wilson v Hurstanger, where LJ Tuckey makes clear that the prescribed terms MUST be there;
   
2. Wilson v First County Trust where Sir Andrew Morrit says that if the creditor got it wrong the money must be a gift (dontcha just love that one ) - btw these are separate cases, despite both being Wilson v ...
   
3. Wilson v Secy of State for Trade and Industry where it is stated (and this is a quote) "Wilson and others v Secretary of State for Trade and Industry [2003] UKHL 40 paras 4 & 71confirms that errors in the prescribed terms preclude a court from making an enforcement order and that Parliament expressly intended that such errors should render credit agreements unenforceable. At para 49 Lord Nicholls of Birkenhead stated
   “The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan… 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"
   

I have taken the liberty of lifting this from a defence that was posted yesterday - you can find this at http://www.consumeractiongroup.co.uk/forum/legal-issues/210972-summons-reastons-claim-form-7.html - you can find it about 1/3 of the way down. But the point is that if there is an error in stating the prescribed terms (even if they are stated) then the lender is stuffed. Egg will continue to contend forever that approved limit is not an error - there is a letter somewhere on here where they say that the use of approved limit is ok as a well established point of law. The recipient has been advised to ask them "which law is that?". But to the best of my knowledge he hasnt had a reply - he may not get one ever imo. Other than to reassert that Approved limit is ok.

In short, I think it might be an idea to vary your supporting cases - there are another three for you.

Secondly, the only other observation that I would make is that, referring to Bradley Say is a decent idea, as he is clearly a good source, BUT

• he isnt the only source, and for a decent fee a good lawyer will concoct whatever line of defence the client wants
  
• its maybe a wee bit "my dad's bigger than your dad" kind of thing
  

But, for sure, your shout.

Good luck with what you send - but as with my opening, dont hold your breath, or have great expectations - that way you wont be disappointed. But you might fight them off, which is, after all, the name of the game.

SFU