MandM vs Egg Loan ***Won with Strike Out***

[MAGDA]

ok thanks. I think I would do the amended defence, but you can obviously refer to their WS and their calculation of the figures (do you think it is correct?)

 

Magda

[MandM]

ok thanks. I think I would do the amended defence, but you can obviously refer to their WS and their calculation of the figures (do you think it is correct?)

 

Magda

 

They,ve done a written summary of how they've got to the figure. Going to sit down this evening (with a calculator!!) and see if I agree. It contains interest and court charges and the way they've written it it jumps about a bit but will see later if i come to the same amount.

 

M

[MAGDA]

They,ve done a written summary of how they've got to the figure. Going to sit down this evening (with a calculator!!) and see if I agree. It contains interest and court charges and the way they've written it it jumps about a bit but will see later if i come to the same amount.

 

M

 

Yes, think a lot of the time they just pluck these figures out of thin air.

 

Magda

[MandM]

Yes, think a lot of the time they just pluck these figures out of thin air.

 

Magda

 

OK, well this one seems to be along those lines. I spent 2 and a half hours with Mrs M tonight going through their WS and every piece of paper we have received from them and Egg and cannot work out where the figure on the POC has come from but still can't work it out.

 

It appears to be interest from when I reduced payments back in Feb up until they terminated the account in June. The DN in May says under further action "We shall require payment of the outstanding balance shown below together with any further accrued interest and charges (less any sums paid to your account in the meantime) £XX,XXX.xx ". However, would this figure not be calculable from my statement received from Egg in September?

 

M

[MandM]

Futhermore, their yearly statement gives the interest due for the whole year and paid for the whole year thus making it possible to calculate the difference. This figure is considerably different to the random amount that Egg are now using on their 'reconstructed' statement sent with their AQ to make their POC figure correct!.

Edited November 9, 2009 by MandM
amended

[MAGDA]

All in your favour then - they will have to prove that you owe what they are claiming, and if the figures don't add up, they will have great difficulty doing so. More ammunition for your defence.

 

Magda

[MandM]

All in your favour then - they will have to prove that you owe what they are claiming, and if the figures don't add up, they will have great difficulty doing so. More ammunition for your defence.

 

Magda

 

My feeling too. Their own paperwork seems to prove the point quite nicely. Will add this into the defence.

 

M

[MandM]

Currently getting my defence prepared.

 

Are there any cases that I can refer to in my defence where the DN issued by the Claimant had some of the prescribed wording missing? I'm not arguing on the basis of dates and the definition of "14 days", I'm arguing purely on the strength that some very important prescribed wording was missing!! I have the bits and pieces from the various acts that cover this - just wanted to back it up with some previous cases.

 

Thanks,

M

[diddydicky]

if you are referring to the bit which refers to getting advice- it is clearly stated as an IMPORTANT part of the document therefore it would be very difficult for it to be argued that it was de minimus

 

so the answer to the question is that yes it should be sufficient on its own to render the DN not to be as prescribed.

 

will the court accept this- you pays yer money and yer takes your choice

[MandM]

if you are referring to the bit which refers to getting advice- it is clearly stated as an IMPORTANT part of the document therefore it would be very difficult for it to be argued that it was de minimus

 

so the answer to the question is that yes it should be sufficient on its own to render the DN not to be as prescribed.

 

will the court accept this- you pays yer money and yer takes your choice

 

Not refering to that bit. Reffering to the very 1st bit that says it is issued in accordance with the CCA 1974. I'll post the bit up that I mean.

 

M

[MandM]

Here's the DN;

 

http://i983.photobucket.com/albums/ae316/slinkymary50/Top2.jpg

 

Taken from Consumer Credit(Enforcement, Default and Termination Notices) 1983 otherwise known as the rules Egg dont see to want to abide by......

 

 

Quote:

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section

87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section

88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

 

They forgot to put that statement in!!!! It's item (a).....the first requirement.....hence my argument! On all other DNs i've seen it usually appears under the words "Default Notice" (just like the reconstructed one they issued with their AQ ).

 

And then they promptly terminated. Hence my wish/need to be able to quote case history on cases won due to missing wording. Happy days I hope!

 

M

Edited November 15, 2009 by MandM
typo

[diddydicky]

look forward to seeing it but if it is not headed that it is a default notice unders s 87(1) then it aint a valid DN its just another "letter"

[MandM]

look forward to seeing it but if it is not headed that it is a default notice unders s 87(1) then it aint a valid DN its just another "letter"

In post above

M

[diddydicky]

In post above

M

 

congratulations,

 

that is no more a default notice issued under the consumer credit act than this posting ?

 

you can rightly claim that they have not served a valid or effective DN so if they have terminated (or demanded full payment of outstanding balance) then IMO you are "home and dry"

 

they do not have a cause of action

[diddydicky]

i would not tell them anything about the actual failings in the DN but simply write a generic letter (you could adapt the one below), so that if they do try to take it to court they were forewarned and that should take care of any costs applications

 

if you receive a summons then i would immediately apply for a strike out on the grounds that no cause of action has been shown

 

Dear Sirs,

 

Your Ref:- xxxxxxxxxxx

 

Thank you for your letter of xxxx received today.

 

I note that you have been instructed to take legal action by your clients to recover the sum shown above.

 

Whilst we have received in response to a s78 request, poor quality copies of what are undoubtedly microfiche records ,I do not believe that your client is in possession of an original executed credit card agreement.

 

In the event that your client is in possession of such an agreement , it has unlawfully rescinded it.

 

The figure mentioned in your letter appears to me to include “sums not yet due” under the alleged agreement,

 

In order for your client to be entitled to claim the benefits of s87, which includes “sums not yet due” he must first serve a valid and effective default notice giving 14 clear days from the date of service of such a notice for the other party to seek advice and/or remedy any alleged default mentioned in the default notice.

 

Being a statutory instrument your client is also bound by any statement made within or with respect to that document.

 

Your client (who will be put to strict proof) has, to date not served a valid or effective default notice and is therefore not entitled to claim “sums not yet due” under the agreement.

 

- 2 -

 

 

 

It follows therefore that your client does not have a cause of action in which to claim the above amount and to commence proceedings would I suggest, be an abuse of process.

 

Further, your client cannot now, or ever serve such a default notice since to do so would perpetuate the fiction that the agreement, which your client has unlawfully terminated, still endures.

 

I am prepared , either in open correspondence or without prejudice as your client may wish, to discuss ways to resolve this matter without need of the court process. failing which we will defend and counterclaim any action

 

 

Yours sincerely

__________________

[MandM]

i would not tell them anything about the actual failings in the DN but simply write a generic letter (you could adapt the one below), so that if they do try to take it to court they were forewarned and that should take care of any costs applications

 

if you receive a summons then i would immediately apply for a strike out on the grounds that no cause of action has been shown

 

Dear Sirs,

 

Your Ref:- xxxxxxxxxxx

 

Thank you for your letter of xxxx received today.

 

I note that you have been instructed to take legal action by your clients to recover the sum shown above.

 

Whilst we have received in response to a s78 request, poor quality copies of what are undoubtedly microfiche records ,I do not believe that your client is in possession of an original executed credit card agreement.

 

In the event that your client is in possession of such an agreement , it has unlawfully rescinded it.

 

The figure mentioned in your letter appears to me to include “sums not yet due” under the alleged agreement,

 

In order for your client to be entitled to claim the benefits of s87, which includes “sums not yet due” he must first serve a valid and effective default notice giving 14 clear days from the date of service of such a notice for the other party to seek advice and/or remedy any alleged default mentioned in the default notice.

 

Being a statutory instrument your client is also bound by any statement made within or with respect to that document.

 

Your client (who will be put to strict proof) has, to date not served a valid or effective default notice and is therefore not entitled to claim “sums not yet due” under the agreement.

 

- 2 -

 

 

 

It follows therefore that your client does not have a cause of action in which to claim the above amount and to commence proceedings would I suggest, be an abuse of process.

 

Further, your client cannot now, or ever serve such a default notice since to do so would perpetuate the fiction that the agreement, which your client has unlawfully terminated, still endures.

 

I am prepared , either in open correspondence or without prejudice as your client may wish, to discuss ways to resolve this matter without need of the court process. failing which we will defend and counterclaim any action

 

 

Yours sincerely

__________________

 

Gone well beyond that stage. Amended defence to be submitted by Thursday so this has become my defence :grin:. Or do I submit my defence and then offer the Sols a way out by way of direct correspondance? They're going to find about the DN when I submit my defence anyway!

M

[diddydicky]

Gone well beyond that stage. Amended defence to be submitted by Thursday so this has become my defence :grin:. Or do I submit my defence and then offer the Sols a way out by way of direct correspondance? They're going to find about the DN when I submit my defence anyway!

M

 

if you are already at that stage i would carry on

 

any attempt to offer them a way out at this stage IMO would be seen as YOU looking for a way out

 

when you submit a copy of your defence to them they may well then withdraw

 

the BOS v robert mitchell case needs to be in your bundle for reference plus any others you can muster up from other members

[MandM]

 

the BOS v robert mitchell case needs to be in your bundle for reference plus any others you can muster up from other members

 

That's what i'm after :D:D. If anyone knows of anymore i'd be glad to hear about it.

 

M

[diddydicky]

this is the part i saved for my reference, from the appeal

 

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

[MandM]

Was having a read of that one myself. It seems to deal with the prescribed terms (or lack of) but relates (I think) just to the CCA rather than the DN. However, i suppose the point is that the DN is also an important document and covered by the act!! Will read it again in more detail when I get home this evening.

M

[diddydicky]

Was having a read of that one myself. It seems to deal with the prescribed terms (or lack of) but relates (I think) just to the CCA rather than the DN. However, i suppose the point is that the DN is also an important document and covered by the act!! Will read it again in more detail when I get home this evening.

M

 

if you are going to challenge the DN it is useful if the agreement is also faulty to combine the two in the argument, IMO

[MandM]

I do have a few points on the agreement to raise also but as its an 08 agreement it's pretty sound. What does have a problem is that the t&Cs they've used don't seem to match up with the agreement so I have an argument there at least. The agreement and T&Cs are in posts 144 and 145 but nobody seemed to raise any issues with them. If any agreement/T&Cs specialists are out there taking a peek i'd welcome any comments/views. Only 2 evenings left to get my defence ready

 

Thanks

 

M

[MandM]

I do have a few points on the agreement to raise also but as its an 08 agreement it's pretty sound. What does have a problem is that the t&Cs they've used don't seem to match up with the agreement so I have an argument there at least. The agreement and T&Cs are in posts 144 and 145 but nobody seemed to raise any issues with them. If any agreement/T&Cs specialists are out there taking a peek i'd welcome any comments/views. Only 1 evening left to get my defence ready

 

Here's the 'agreement'

 

http://i983.photobucket.com/albums/a...ntPage1of3.jpg

 

http://i983.photobucket.com/albums/a...ntPage2of3.jpg

 

http://i983.photobucket.com/albums/ae316/slinkymary50/LoanAgeementPage3of3.jpg

 

And here's the T & C's.

 

http://i983.photobucket.com/albums/a...ndC1of12-1.jpg

http://i983.photobucket.com/albums/a...TandC2of12.jpg

http://i983.photobucket.com/albums/a...TandC3of12.jpg

http://i983.photobucket.com/albums/a...TandC4of12.jpg

http://i983.photobucket.com/albums/a...TandC5of12.jpg

http://i983.photobucket.com/albums/a...TandC6of12.jpg

http://i983.photobucket.com/albums/a...TandC7of12.jpg

http://i983.photobucket.com/albums/a...TandC8of12.jpg

http://i983.photobucket.com/albums/a...TandC9of12.jpg

http://i983.photobucket.com/albums/a...andC10of12.jpg

http://i983.photobucket.com/albums/a...andC11of12.jpg

http://i983.photobucket.com/albums/ae316/slinkymary50/TandC12of12.jpg

 

Any comments or advice would be greatly appreciated. Got tonight left to prepare my defence! I have arguments for the DN and the Sum claimed but if I could pick some holes in the above it would add a great deal of weight to my defence.

Thanks,

 

M

Edited November 17, 2009 by MandM
corrected

[MandM]

Bump

[MAGDA]

It seems ok to me on the whole M&M, which you would expect as it is only a fairly recent one. The only thing I can think of, which is unlikely, is whether the figures all add up with the APR/interest being accurate? I expect they do and I expect you've already checked that. Sorry not to be any more help. Hopefully someone esle may spot something that is wrong. Good luck with your defence. Magda