Egg/dryden lost dual CCJ Card+Loan - No REstons after CO.

[supasnooper]

A disclosure list is a list of documents that you are in control of (In your possession) and wish to use in court, not what documents you would like.

 

The documents you do not have, are what you will ask the Judge for, so an Order can be made by the Judge to Egg to send to you.

 

Preferably an "unless order" would be good.

[large boy]

Oh well, fingers crossed!

 

Todays the day and at 2pm!

 

I have read and read and, feel that I am fairly well prepared so, I will let everyone know the outcome this evening when I return!

[supasnooper]

Just to reiterate my earlier post about today.

 

You are there to discuss track allocation and perhaps to ask the Judge to make an order for documents from Egg to be sent to you.

 

That is it.........nothing more.

 

Don't get drawn into any legal arguments about your case with the opposition.

 

Hopefully, you'll get a good Judge who will make the Orders as "Unless Orders".

 

Good Luck.

[MandM]

Oh well, fingers crossed!

 

Todays the day and at 2pm!

 

I have read and read and, feel that I am fairly well prepared so, I will let everyone know the outcome this evening when I return!

 

Best of luck.

 

M

[large boy]

Thanks all!!!!

[citizenB]

Yes, good luck.

[large boy]

Well, what an horrible experience.

 

Council, the guy from Egg, wanted to try and get two summary judgements today and wasnt going to take no for an answer. He even asked me if I wanted to just admit I was wrong and be done with it, the cheek.

 

The judge was very nice and a decent guy - he told them they had filled their papers too late and that he though it was grosely unfair for them to apply of rsummary judgement without them having to provide me with any papers or witness statements.

 

So, he told their guy to give me his copies of the paperwork and allow me to file a decent defence as that was what the consumer credit act was there for - I felt so releived by this as it bought me some time.

 

Having said that, not much time as I have been ordered to file both of my defences at the court and the solicitors, on or by Tuesday 5th January.

 

I'm still shaking like a leaf but feel better knowing I have two more weeks to try and move things forward.

 

I know this is a strange time, lots of holidays, drinking and a relaxed few weeks but, I would really appreciate any help I can possibly get please!

[supasnooper]

Sounds like the Judge was okay and was looking out for you.

 

Please can you post up the copies of the Egg paperwork to give an idea of what they intend to use.

[large boy]

Hi Supasnooper

 

What part of the paperwork will you need me to put up as, they have given me around 200 pages, all photocopied so not the best quality but, I was pleased to see the credit card agreement dated 2003!!!!

[supasnooper]

The agreements for both accounts and any Default Notices served under s87 of the Consumer Credit Act 1974

[large boy]

Do you want all the paperwork from the agreement or just the signature bit?

 

I'll look through to find the Default Notices this evening and try and have them posted here tomorrow morning, if not, it will be in the afternoon as I have a couple of meetings during the day!

[supasnooper]

Have a look at these links which may help you decide on the enforceabilty of the paperwork (courtesy of 42man & steven4064) -

 

 

Is My Agreement Enforceable - Useful

 

 

Consumer Credit Agreements

 

and this one about Default Notices

 

B_R_W's post on DN's

 

 

.......... and you'll understand why it is important that the relevant paperwork can be viewed so a relevant defence can be constructed.

Edited December 22, 2009 by supasnooper
typo

[citizenB]

Well done for surviving the first round, LB. At least you now know what to expect and it wont be so bad next time (she says with her fingers crossed)

[large boy]

WOW!

 

Ive just had a brief look at those links and, to be totally honest, how is a complete layman supposed to understand half the language, let alone try and build a defence against a large bank?

 

All this and, less than two weeks to have everything signed, sealed and delivered while the country sleeps and drinks intself into a frozen mess!

 

Oh whoopee!!!!!

 

Still, thanks for the help so far and, I'm hoping you guys here might be able to find some chink in their armour!

 

OK, here are the documents, I hope!

 

 

a couple of thoughts here.......

 

both the default notices given to me by the court, are not addressed to me, does this mean they are not valid?

 

I didnt receive much paperwork regarding all this as my post seems to be completly shot, even not receiving any bank statements for over a year, quite a worry really.

 

Also, the wording on the loan agreement states that, the document must be signed and returned to the bank, I never signed anything and niether have the bank, could this be wrong too?

 

I'm assuming that, the credit cars agreement is one of those that could have faults too, something to with being unenforcable due to incorrect terms?

[supasnooper]

Ok, if you read the link below, you'll find that the Egg Credit Card Agreement is defective due to their description of the Credit Limit -

 

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

 

If the Default Notices do NOT contain your name them they are ineffective.

[large boy]

I'm hoping that, as these wqere the actual papers that the judge ordered their council to give me, that these are what I have to work with and against. In this case, I have to assume that these default notices are the actual ones against me and, as you have pointed out, useless as they aren't addressed to anyone!

 

I've been reading the htread regarding egg credit card agreements and hope to have enough points from there to present my defence and suggest thier agreement is unenforceable.

 

I keep looking at the loan agreement and reading the last section that states that states;

 

"Please note that any loan money which is to be paid into your bank or building society account will usually be paid within four working days (ie not Saturday, Sundays or Bank Holidays) of us receiving this correctly completed and signed agreement. (We must receive this correctly completed and signed agreement no later than 90 days from the date shown in the signature box signed by egg above.)"

 

Now, is this part of their contract as I have never signed anything and, neither has a representative of egg so, as they were NEVER signed, can they now act on this and state it is a contract?

 

Has anyone else come across this before and, if they have, what was the outcome please?

 

I guess I will be doing lots of reading over the next few days and, try to post my defence thoughts early next week if anyone is still around to give me their thoughts and advice please?

 

On this note, I want to thank you all for your help so far and to thank you for giving so many of us confidence to face these trying times.

 

Have a very Happy Christmas and Wonderful New Year and keep up the great work!

 

Thank you from the bottom of my heart!

[supasnooper]

The description Egg use for a credit limit is the killer.

As the credit limit is a prescribed term, their statement on the Credit Card Agreement is not correct.

That makes the agreement unenforceable

 

Central Trust Plc V Spurway [2005] CCLR, is the case law that puts the case to bed.

 

I do hope you and your family have a Merry Christmas and a Happy New Year.

[large boy]

Hi all

 

I hope you all had a good Christmas!!!

 

Supasnooper, thank you for the info stating "The description Egg use for a credit limit is the killer.

As the credit limit is a prescribed term, their statement on the Credit Card Agreement is not correct.

That makes the agreement unenforceable"

 

"Central Trust Plc V Spurway [2005] CCLR, is the case law that puts the case to bed"

 

I've been reading through the thread regarding egg agreements and was hoping to find a prepared defence or something similar that I can copy or adapt to my case, does anyone know of anything here please?

 

Secondly, I am going to defend myself against the egg loan on the basis thet the default notice is wrong as it has no details, name, address etc and is just a template document - what is the correct way of doing this and, or, is there anything here that has already been done that I can look at to get some ideas please as I have to have these both done for Tuesday!!!!

 

I've just spent hours reading through the egg thread, whats wrong with their agreements, again and I still cant find anything simple enough for the complete idiot layman, thats me, to put into a defence, am I reading it incorrectly?

 

OK, this is causing sleepless nights now, here is my first attempt at my defence, can anyone advise please?

 

In the ******** County Court

Claim No: *************

 

Between

 

Egg Bank

and

****LB******

Defence

1 I, ****LB**** of ***LB address ***** am the defendant in this action and make the following statement as my defence to the claim made by Egg Bank

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to

3. It is denied that the Claimant served upon the Defendant a default notice pursuant to section 87(1) of The Act and which was in prescribed form and compliant with the provisions of section 88 of the Act.

 

4.Within the agreement, the word Approved Limit is used, which is supported by case law is that the word 3.Limit which is set out in the margin and the word Approved limit is not sufficient to advise you what the credit limit is or how it will be decided. therefore a prescribed term is not correctly stated

 

That makes the agreement unenforceable

 

Central Trust Plc V Spurway [2005] CCLR, is the case law.

Quote from Central Trust Plc V Spurway

The passages of Lord Nicholls’ speech cited by Mr Say state 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

 

5. 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.

 

6. Also, the agreements fail to state the rate of interest for cash withdrawals. 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

 

7. It is alleged that Egg will try to state that the missing information is set out within their terms and conditions, 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

 

8. 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 Egg Agreements DO NOT

 

 

I believe the above statement to be true etc

 

Signed ****LB*****

 

Date ******

 

and for the second case, where the default notice is unamed, unaddressed and has no detail whatsoever;

 

In the ******** County Court

Claim No: *************

 

Between

 

 

Egg Bank

and

****LB******

Defence

 

1 I, ****LB**** of ***LB address ***** am the defendant in this action and make the following statement as my defence to the claim made by Egg Bank

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to

 

3. It is denied that the Claimant served upon the Defendant a default notice pursuant to section 87(1) of The Act and which was in prescribed form and compliant with the provisions of section 88 of the Act.

 

4. The default notice, as supplied by the defendants counsel, as ordered by the court, has no detail whatsoever, no address, no name, no financial details and is unenforcable.

 

I believe the above statement ..... etc

[citizenB]

Hi, I am not able to help with your defences. However, the lack of a properly produced default notice is a complete defence in itself. Below you will find all the information and regulations that you would need for those issues.

 

xx

 

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. 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.

[large boy]

Thank you for those points!

 

Would I be advised to include them on my defence papers?

[citizenB]

LB, have a look at the completed defence in the link below. It will show you how to incorporate the default notice information. Obviously you will have to tailor it to your own requirements.

 

 

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2166337.html

 

HTH

[large boy]

OK, thank you all for your help so far!

 

The defences were sent and have both been signed for today so, they are now with the court and solicitors.

 

I guess I just sit and wait now - fingers crossed!

[large boy]

Hi everyone again

 

I've received this in this mornings post, can anyone advise please as to what I need to do?

 

Do I need to respond, reply or file anything?

 

what should be my argument?

 

The fact that I've spent nothing?

 

Well, absolute disaster

 

I've had two summary judgements against me and all their costs

 

The judge wasnt prepared to hear anything I said, I even pleaded with him to allow me to mention the flawed agreements or the no default notices, everything was given to them

 

What can I do now?

 

The judge did cut their fees in half, to £5K - whoopee!

 

I'm skint, I have no money, no work, no assets just a share in my house, can they take that from me?

 

Can I appeal based to the fact the egg aggrements are not legally binding or is it too late?

 

Any advice is greatly appreciated as I'm scared out of my wits now, if only I could afford to run away I would, I cant even afford to be an alcoholic and drown my sorrows

 

A complete nightmare

 

Any suggestions yet please?

 

Im shaking like a leaf - have I just lost everything?

[citizenB]

Hi LB, what that is saying is if you have anything further to say especially in respect of the Summary Judgement hearing then you should submit a response/rebuttal witness statement 7 days prior to the hearing. It will need to be with both the court AND the opposition 7 days before.

 

If you have a witness statement from them in respect of the Summary Judgment then yes, go through it point by point responding where necessary and get it submitted as per instructions.

[large boy]

Thank you for that advice!

 

Wasn't that the same as my defence?