Egg respond at last! what next???

[ngj78]

Dear all,

 

I've been following other threads on here as I've been in the same situation so didn't want to repeat. Like others I received my CCA and I sent them this letter:

 

The agreement is improperly executed under section 61(1) of the Consumer Credit Act 1974 and associated regulations.

1.According to the Consumer Credit (Agreements) Regulations 1983 (Schedule 1), this agreement should have been given the heading “Credit Card Agreement”. In fact it has been incorrectly headed “Egg Card Agreement for (my name) “and, subsequently, “Credit Agreement”.

2.Additionally, no “Credit Limit” has been stated – this is a prescribed term set out in the Consumer Credit (Agreements) Regulations 1983, as required by section 61(1) of the Consumer Credit Act 1974. In paragraph 3 of the document you have sent me, the phrase used there - “Approved Limit” - is not sufficient to advise me what the credit limit is or how it will be decided, and therefore a prescribed term is not correctly stated. On this point, please see 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”

As the agreement has been improperly executed, it is only enforceable by an order of the court, by virtue of section 65. However, since it does not explicitly state the term “credit limit” (rather, it mentions only an "Approved Limit”), as required by Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, the court would be prevented from granting such an order by virtue of section 127(3).

3.Paragraph 22 of Schedule 1 Consumer Credit Agreement Regulations requires that the agreement details the default charges payable. The document that you have sent to me fails to provide this information, and is therefore deficient in terms of these regulations, making the agreement further improperly executed.

 

then with the usual stuff below!

Their response is here: Egg pictures by njohns78 - Photobucket

 

any advice on what I should do next is appreciated. I am consious that it took them about 2 1/2 months to reply to this - in their defence they did send me regular letters telling me they were still looking into it.

Thanks in advance.

 

NGJ78

[littleme33]

Subbing - as i'm in the same position as you! Mine is with DCA, so just interested to see your response

Littleme:)

[seriously fed up]

Lets get the bad news out the way. They are correct about the heading - the regs do actually require this, but only in agreements since 2005. Re the default fees - either they are there or they are not. However, the key one on your list is the approved limit because if the prescribed terms (of which credit limit is one) arent right, then the agreement is irredeemably unenforceable. In respect of Approved limit" think its interesting that they use this form of words

"Approved limit is specifically defined in term 1.3 of the terms and conditions of your agreement as the amount you can borrow from time to time".

As well as falling foul of

 

1. the point that NOWHERE in the Act or the Regs is there a reference to Approved limit (its ALWAYS credit limit), so it can be argued a prescribed term is missing
   
2. the way they seem to be trying to "rescue" this is by pointing to the definition in the T&Cs. BUT, the problem thery are going to have here is the distinction between "contained" and "embodied". S61 (1)(a) is quite clear that the prescribed terms MUST be "contained" in the sig document. Other terms may be embodied in the T&Cs, but not the prescribed terms.
   

They may well be right that neither the Act nor the Regs require the use a particular phrase to describe credit limit. But, at the same time, its verifiable that the only phrase used to describe credit limit in the Act or in the Regs is "credit limit". It can also be argued that Approved Limit lacks clarity - exactly what sort of limit is that they are approving (number of transactions in a day/ maximum transaction value etc). Which takes us back to the assertion that its defined in the T&Cs - but it cannot be defined in the T&Cs - it MUST be contained clearly and unambiguously in the sig document. LJ Say's quote may be from a case which did not involve credit cards, but the fact is that he is talking here about credit in a general way, and is quite unambiguous in his requirement of clarity. I'm not sure how much more clarity there is if you look in the T&Cs - to be any good to Egg this clarification would have to be in the sig doc.

So, this looks to me to pose them the difficulty that either their agreement falls on the basis of (1) that Approved limit is not sufficiently clear of and by itself (there are other letters where they suggest that Approved limit is quite clear and widely used in law, which is of course complete nonsense, as they realised themselves back about 2006 when they gave up talking about Approved Limit and substituted credit limit) OR they suggest that approved limit is defined elsewhere (embodied in the T&Cs) but that's not good enough either because it has to be defined (contained) in the signature document

This one looks to me to have the potential to tie Egg in knots (if you can tie an Egg in knots - an omelette maybe? ) for quite some time.

However, that's not what you asked is it? Basically your problem is that they will NEVER agree with anything you say except "here's a cheque for what you say I owe you". Basically you need to concoct a letter which says that their use of Approved limit screws them every which way.

Edited February 11, 2010 by seriously fed up

[ngj78]

A long, long overdue update on this is that I've fallen about 5 months behind on payments, because I'm struggling financially.

Yesterday, when I was out with the family, a debt collector called at my house and left a letter instructing I call Egg, I had been avoiding their calls for a while now.

What has wound me up most is that he knocked on a neighbours door asking if I lived here - I know that as she told me "someone knocked on my looking for me".

 

Is this really allowed??

 

Advice appreciated.

 

Thanks

[seriously fed up]

if they have advised that a debt collector might call, there is a letter on here tellling them not to. Would they still do it? Well they might, as they pretty much do as they please and tbh there is no real come-back.

Strictly they should, I think, make an appointment for a debt collector to call - this is when you should send the "dont bother letter". This is in the OFT guidance. It says (para 2.12 g) it an unfair practice is "not giving adequate notice of the time and date of a visit" , but then goes on to say in a footnote "When a door-to-door debt collector makes an initial home visit to a debtor it may not always be possible for them to give adequate notice of the time and date of that visit. This is not necessarily unfair. The key word is adequate. This was inserted to ensure that what the debtor regarded as adequate was key." So if this was a first visit they would probably wriggle out on the footnote - but having had them darken your door once, they should offer adequate notice, and you can got to the letter file and send them the "dont bother" letter.

[ngj78]

but are they allowed to knock on a neighbours door asking for me? I also believe that they gave the letter saying they had called to my neighbour - which she subsequently just put through our door.

[seriously fed up]

No they shouldnt do that - but the problem is that they will. You could

 

1. write to them and complain
   
2. write to OFT and complain
   

But dont expect too much from either and you wont be disappointed.

[ngj78]

Thanks for taking the time to respond 'Seriously Fed Up'. Expected that to be the case (unfortunately). Don't think I'll waste the time to take the matter any further!

[seriously fed up]

I think you are wise, but you can always quote the guidelines etc at them in any letters to them - at least shows awareness of your rights (and thus the possibility that you might just make trouble for them)