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

[MandM]

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

 

Thanks Magda.

 

If anyone else has any further views i'd appreciate any input.

 

M

[MandM]

If anyone else has any further views i'd appreciate any input.

 

M

[MandM]

I have discovered a number of significant discrepencies between the 'Agreement' (3 pages) and the 'T & Cs' (12 pages) that would demonstrate that one or the other (or both) are not the original!! as there are certain clauses that do not link through correctly from one document to the other.

I would assume that the terms and conditions have probably been updated to fight off other pending court cases against Egg.

 

My question is - should these be pointed out to the court in my defence and is that also a viable defence within itself? Has anyone else used this to argue the validity of an agreement in court?

 

thanks

 

M

[MandM]

bump

[MAGDA]

M&M one thing I did just notice on the actual agreement itself, it doesn't mention anything about cancellation rights, and this was a cancellable agreement under the Distance Marketing regs. I presume as it's an Egg one that it was taken out online.

 

See the following thread: post #1121 onwards.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/188093-egg-credit-agreements-what-57.html

 

You may already be aware of all of this, but thought it might help.

 

Magda

[MandM]

M&M one thing I did just notice on the actual agreement itself, it doesn't mention anything about cancellation rights, and this was a cancellable agreement under the Distance Marketing regs. I presume as it's an Egg one that it was taken out online.

 

See the following thread: post #1121 onwards.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/188093-egg-credit-agreements-what-57.html

 

You may already be aware of all of this, but thought it might help.

 

Magda

 

TY Magda. Will look into it and let you know what I find

 

M

[MandM]

M&M one thing I did just notice on the actual agreement itself, it doesn't mention anything about cancellation rights, and this was a cancellable agreement under the Distance Marketing regs. I presume as it's an Egg one that it was taken out online.

 

See the following thread: post #1121 onwards.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/188093-egg-credit-agreements-what-57.html

 

You may already be aware of all of this, but thought it might help.

 

Magda

 

 

Hi Magda,

 

No 4 on the T & Cs seems to be all about cancellation http://i983.photobucket.com/albums/ae316/slinkymary50/TandC3of12.jpg . Are you saying that this should be on the agreement and not the T&CS?

 

thanks

 

M

[MandM]

OK. Defence handed in to the court.

 

So what are the timescales usually from this point in the game? Is there anything else I should or could do or is it just sit back and wait?

 

Gonna spend plenty of time learning the CCA74/06 inside out so i'm well prepared but apart from that i'm into new ground now.

 

Will keep posting and thanks to all that have helped us get this far, particulary the sound advice and encouragement we've received from Magda, 42man, The Shadow, Scabhunter, Diddydicky and a few others - I think I have a good defence from all of your input.

 

And a big special thanks to EGG as i'd never have found CAG without ya

 

MandM

Edited November 19, 2009 by MandM
typo

[MAGDA]

Good luck with it all M&M, hope your defence does the trick - sure it will:)

 

Magda

[MandM]

Can anyone tell me where the following is from, particularly the bit in bold. If I have to argue this in front of a judge I want to be able to argue based on fact.

 

Have been reading Bill Shiddings post regarding a sh**ty judge and I want to be prepared. If DJ or other side claim that "DN is invalid, therefore TN is also invalid - therefore go away, reissue DN and have another go" I would like to have a strong argument ready. Any thoughts anyone. Or am I reading too much into this?

 

 

Thanks,

 

M

 

Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future

 

 

[diddydicky]

Can anyone tell me where the following is from, particularly the bit in bold. If I have to argue this in front of a judge I want to be able to argue based on fact.

 

Have been reading Bill Shiddings post regarding a sh**ty judge and I want to be prepared. If DJ or other side claim that "DN is invalid, therefore TN is also invalid - therefore go away, reissue DN and have another go" I would like to have a strong argument ready. Any thoughts anyone. Or am I reading too much into this?

 

 

Thanks,

 

M

 

its a comment from surfaceagent x20 rather than a legal authority (i thin) but it a very sound comment, clearly terminate means to end - there is no other definition

 

the wording of the new DN would HAVE to state that if the debtor remedies the default within 14 days then it is as if the default never occurred - in other words the status quo is resumed and the account is conducted as if the defalult never occurred.

 

how therefore can a creditor who himself has terminated an agreement, offer you the opportunity to remedy arrears on a non existent agreement and promise to revert back to the status quo- if you have accepted (by words or deeds) that you regard the unlawwful termination as effective then the ONLY way the agreement can be resurrected is if BOTH parties agree to do so- well you are hardly likely to want to do so and the creditor cannot unilaterally re instate what both parties have agreed is terminated

 

also. since the creditor terminated (ended) the agreement then interest will inevitbaly have been charged to the account (which has ended) by the creditor because he will not have accepted that he had ended the agreement - therefore the figure quoted in the new DN as requiring remedy will undoubtedly be incorrect

 

hope that helps

Edited November 20, 2009 by diddydicky

[MandM]

its a comment from surfaceagent x20 rather than a legal authority (i thin) but it a very sound comment, clearly terminate means to end - there is no other definition

 

the wording of the new DN would HAVE to state that if the debtor remedies the default within 14 days then it is as if the default never occurred - in other words the status quo is resumed and the account is conducted as if the defalult never occurred.

 

how therefore can a creditor who himself has terminated an agreement, offer you the opportunity to remedy arrears on a non existent agreement and promise to revert back to the status quo- if you have accepted (by words or deeds) that you regard the unlawwful termination as effective then the ONLY way the agreement can be resurrected is if BOTH parties agree to do so- well you are hardly likely to want to do so and the creditor cannot unilaterally re instate what both parties have agreed is terminated

 

also. since the creditor terminated (ended) the agreement then interest will inevitbaly have been charged to the account (which has ended) by the creditor because he will not have accepted that he had ended the agreement - therefore the figure quoted in the new DN as requiring remedy will undoubtedly be incorrect

 

hope that helps

 

mmmmm. Well put! I think I have enough words in there to base an argument on then. I have made that particular statement in my defence. If the DJ pushes on the fact that it's up to him/her i'll have some ammo up my sleeve to argue the point

[mystery1]

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

M1

[MAGDA]

Hi Magda,

 

No 4 on the T & Cs seems to be all about cancellation http://i983.photobucket.com/albums/ae316/slinkymary50/TandC3of12.jpg . Are you saying that this should be on the agreement and not the T&CS?

 

thanks

 

M

 

Sorry m&m, only just noticed this, yes, as far as I am aware, it should actually state on the agreement that you have a right to cancel, not just in the t&cs.

 

Magda

[diddydicky]

Sorry m&m, only just noticed this, yes, as far as I am aware, it should actually state on the agreement that you have a right to cancel, not just in the t&cs.

 

Magda

 

has to be in a "box" next to or very proximate to the signature box i believe

[MandM]

has to be in a "box" next to or very proximate to the signature box i believe

 

Would this also be the case on a loan agreement taken out in 2008 (on line)

 

M

[diddydicky]

not at all sure about online stuff but i would be amazed if the principle was not the same:-

 

that the notice of cancellation rights must be seen as you sign

[MandM]

not at all sure about online stuff but i would be amazed if the principle was not the same:-

 

that the notice of cancellation rights must be seen as you sign

 

I shall dig deeper on other threads and see if I can find out. Unfortunately, didn't get it into my defence but its a nice bit of info to have up my sleeve come the hearing at least. If I can find the relevant bit of quoted law to refer to I could at least have the argument ready should I get the opportunity to bend my questioning in that direction. OR if it all goes tits up it could be a point on appeal???

 

M

[MAGDA]

yes, lack of cancellation rights can potentially mean that an agreement is unenforceable. It might be worth pm'ing AC (Angry Cat) and asking her opinion - she seems to be very knowledgeable on Egg and their lack of cancellation rights. Might be worth seeing what she says. I do know that under the Distance Marketing regs you need to be given the opportunity to cancel, but not sure how this is conveyed, although as DD said, would think that it would need to appear on the agreement so that you are aware of it when you tick the box.

 

Magda

[MandM]

yes, lack of cancellation rights can potentially mean that an agreement is unenforceable. It might be worth pm'ing AC (Angry Cat) and asking her opinion - she seems to be very knowledgeable on Egg and their lack of cancellation rights. Might be worth seeing what she says. I do know that under the Distance Marketing regs you need to be given the opportunity to cancel, but not sure how this is conveyed, although as DD said, would think that it would need to appear on the agreement so that you are aware of it when you tick the box.

 

Magda

 

Thanks Magda. Will PM AC and ask for an opinion. I wish all my debts were old ones - so much easier to deal with

 

TY

 

M

[angry cat]

It is The Distance Selling Regs. that apply:

 

How to cancel a consumer credit agreement

 

You should have been supplied with separate Cancellation Rights!

 

I wonder if you were?

 

Have pm'd you.

 

AC

[MandM]

It is The Distance Selling Regs. that apply:

 

How to cancel a consumer credit agreement

 

You should have been supplied with separate Cancellation Rights!

 

I wonder if you were?

 

Have pm'd you.

 

AC

 

Thanks AC

 

smEGG have sent me T & Cs with their AQ and WS but I don't have the originals. Albeit the T & Cs don't seem to tie up with the agreement too well.

The bit i'm trying to find out is whether there should be a reference to 'your rights' on the agreement. One CAGer has suggested that it should be mentioned/reffered to in the document that's 'signed' (although this is an online one) so what i'm trying to work out is whether or not there should be a link.

 

M

[angry cat]

If it was an on-line application, then separate cancellation form would have had to be sent to you separately under The Distance Selling Regulations.

 

Yes the agreement should have stated that the CR's will be sent to you by post.

 

However, with an agreement dated 2007/08, it may have been sufficient to have been sent these by electronic means.

 

I guess, that the $64,000 question would be; was the cancellation from actually sent and received by you?

 

And yes, the T&C's must marry up with those of your alleged agreement!

[MandM]

Interesting and thanks for your advice.

 

I don't have the originals unfortunately but smEGG were ordered by the court to produce these by way of court directions at 2 stages.

And yes, the T&C's must marry up with those of your alleged agreement!

This bit is a very interesting point in my defence as i have raised 3 seperate occurances where the numbering referred to on the T&Cs within the agreement is incorrect.

I would assume that it is something as simple as the T&Cs being revised a number of times over the duration of the loan as EGG, like all banks, have been fire fighting a bit and changing things as they go so as to deal with the current rush of court actions and defaulters.

However, their stupidity is my gain as i've used these subtle (but relevant) differences to bolster my defence.

 

It also gives me the further argument that they have failed to comply with court orders and send me originals of both.

 

M

[Sunshine54]

morning MandM

I too have an Egg agreement and they supplied a set of terms and conditions which didn't apply to the 2 page signed agreement (clause references didn't match etc)

 

I highlighted this in my defence and their response completely ignored the point I made about terms and conditions not consistent with the agreement. They later sent some more documentation through and included in the package a further copy of the terms and guess what - these were different and appear to be the relevant ones that would have been in force at the time (albeit they had someone else's name and agreement number on)

 

I was cross that they didn't even highlight the fact that they had sent a different set so highlighted it to the Judge and asked their barrister which set they actually wanted to rely on in their case as they had now presented two sets. I also made the point about them not pointing out that this was different documentation. The judge wasn't impressed but their barrister put it down to an administrative error and said that he hadn't seen the covering letter etc etc.

 

The terms and conditions don't have any information about cancellation rights though. I did say in my defence that even if they did, they should have been in the agreement that was signed and not hidden in multiple supplementary pages of 'things you should know'.

 

good luck

S