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TT2 vs Egg CC


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Hi All

 

Ours is one of those Egg agreements that was terminated a year or so ago when the account wasn't in default. It was signed in 2000 so is also one of those that doesn't have the prescribed terms and so may be unenforceable.

 

Anyhoo, our view was that they couldn't carry on charging interest, etc from the date that the agreement was terminated so we wanted them to refund everything since then.

 

Here's where we're up to:-

 

17th May - wrote to Egg regarding interest charges and asked them nicely to refund them

 

4th June - sent a reminder regarding my request for copy of CCA. In error, I thought I had posted the 'actual' request on 17th May but late found it in my desk drawer! So, in error, I sent a reminder but never actual sent the original request

 

14th June - letter from Egg. They are looking into my complaint but doesn't note which of the 2 items it refers to.

 

15th June - letter from Egg saying that they had already complied with my CCA request (although they couldn't have done because I forgot to send it!) but that they would send a further copy by 29th June.

 

21st June - I sent letter to Egg stating that they had had 4 weeks to respond to my original 'interest' complaint but hadn't. I enclosed a copy of the original letter.

 

22nd June - I sent full SAR request

 

1st July - letter from Egg. Confirming that they are looking at my complaint but does not state which of the 3 issues this letter refers to.

 

1st July - letter from Egg. This refers to my original complaint about interest. They refer to a clause 20.4 which states "...(including transactions, interest and charges..." which relates to an account being terminated. I have just found my original CCA and terms and that term doesn't exist.

 

1st July - letter from Egg. Saying that they haven't received the £1 payment for the CCA request (even though on 15th June they said they'd already complied).

 

1st July - letter from Egg. Confirming that they would comply with the SAR by 1st August.

 

2nd July - letter from Egg - copy of CCA (even though in 1st July letter they said they wouldn't send because I hadn't paid the £1). Egg sent CCA, T&Cs from the time of signing and then another set of T&Cs with my name on the top but no signature and I've never seen these before.

 

6th July - I wrote to Egg asking where and when I agreed to the T&Cs they refered to in their letter of 1st July in regards to my 'interest' complaint.

 

19th July - letter from Egg. Enclosing another copy of my agreement and T&Cs from the same time but in the name of a Mrs E A Winder (whoever that might be!) and referring me to clause 15.1 this time. Clause 15.1 does not inlcude the "including interest, etc" part of the clause which was what they relied on in their initial response.

 

So that's where I'm at.

 

1. They have supplied a copy of the CCA with the original terms and then a newer set of terms I've never seen before.

2. I am waiting for them to complete my SAR request which they have promised by 1st August (the CCA request was late so I am expecting this to be).

3. My actual dispute regarding interest was first responded to by referring to a clause in a set of T&Cs that I've never seen and then to the real set of T&Cs that are not clear.

 

I wonder if anyone could take a look at the response letter I have put together THANKYOU :-) -

 

 

ACCOUNT IN DISPUTE

 

With reference to your letter dated 19th July 2010.

 

Firstly I am rather surprised that you enclosed Terms and Conditions relating to the account of a Mrs E A Winder. I assume you had Mrs Winder’s permission to do so?

 

Thankyou for clarifying that I did not, in fact, agree/see/receive the Terms and Conditions to which you originally referred to in your letter of 1st July 2010. I am now in receipt of the correct Terms and Conditions.

 

You have a duty to me, as a consumer, to give clear and concise information. I draw your attention to the term you describe as 20.4 in your letter of 1st July 2010. You note “..(including Transactions, interest and Charges applied to the account after the Agreement has ended)…”. Presumably, this clause has been added to your most recent Agreements and so it would be fair to say that this is as a result of previous Agreements being unclear, including the one which relates to my account.

 

Furthermore, I would like you to indicate to me the specific part of the 1974 1974 Consumer Credit Act which provides entitlement to Egg to terminate my Agreement when my account was not in default. I would also like you to indicate to me the specific part of the 1974 Consumer Credit Act which provides entitlement to Egg to include in the Egg Credit Card Agreement a term stating that Egg can terminate the Agreement at any time.

 

I consider Egg to be in breach of the 1974 Consumer Credit Act.

 

In addition, I consider your Agreement unenforceable at law for the following reasons:-

 

· The phrase “Approved Limit” is used, which is insufficient to advise me what the credit limit is or how it will be decided therefore a prescribed term is not correctly stated.

 

I refer to the case of 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.

 

HHJ Overend’s view is that the Agreement should make clear to the consumer what the credit limit is or how it will be determined.

 

· You may also wish to consider other case law relevant to ‘running credit agreements’ in particular:

 

o Wilson v Hurstanger, where LJ Tuckey makes clear that the prescribed terms MUST be there;

o Wilson v First County Trust where Sir Andrew Morrit states that if the creditor got it wrong the money must be a gift.

o Wilson and others v Secretary of State for Trade and Industry [2003] UKHL 40 paras 4 & 71 confirms 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 Agreement fails 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 include 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 the Agreement 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;”

 

· Paragraph 1 of Schedule 1 clearly notes 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". On the document in question you have failed to do this.

 

· Paragraph 22 of Schedule 1 of Consumer Credit Agreement Regulations requires that the Agreement should detail the default charges payable – this has been omitted from the Agreements being discussed here.

 

· In addition to the above, the missing information cannot be set out within the terms and conditions. Regulation 2 (4) of the Consumer Credit Agreement Regulations 1983 (SI1983/1553) requires that the statutory information set out within Paragraph 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.

 

Therefore, in terms of my dispute as stated in my letter of 17th May 2010 regarding interest, etc, I would ask that you now reassess that dispute on the basis of the above.

 

I should also point out that I have a further issue on which I am unable to respond fully at this time as you have yet to respond to my DSIR request.

Edited by TinaTurner2
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Can someone point me in the direction of a copy of the "Consumer Credit Act Regulations 1983", please? I've searched the mighty t'interweb but can only find 2004 amendments.

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  • 3 months later...

Issued proceedings against Egg regards the charging of interest, etc after they terminated the agreement. The original agreement doesn't say they will continue charging interest but the latest one does. Egg claimed "I can quote any term and it would have been enforceable at one point or another" but the cluase which allows them to make changes says "as long as they are not detrimental to you". That's the basis of our claim.

 

After much to-ing and fro-ing, Egg stated that they would no longer correspond on the matter. So we wrote once more asking them to answer our specific questions and resolve the issue and giving 14 days to do so. We go no response so issued proceedings. Their solicitor wrote to us asking for an extra month to 'investigate our claim' but we said no as they'd already had a year to investigate and had already said they'd investigated it. Their solicitor then wrote to us saying that it had 'come to their attention' that we had not file 'further particulars of claim' at court and that they would ask the court to award them costs if we went for a default judgement. Oh, and because of this they didn't have to file a defence. We spoke to the court who confirmed that they received our certificate of service and further particulars and also that the defendant had received them because they were sent signed for. So don't know what their solicitor was on about but they were totally wrong!

 

Anyway, time is up and they didn't file a defence so we applied for default judgement and this was issued today.

 

Obviously, they may apply for a set aside, but it made us happy for the minute.

 

Presumably at some point we will need to apply for a warrant of execution.

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  • 2 months later...

Quick update...

 

End November - Egg solicitors complained to the court (after default Judgement) that we didn't follow the proper court process in filing a certificate of service. Court informed them that the proper court process was followed.

 

Beginning of December - Egg issued Default on the account stating that they would start legal proceedings on 31st December (Merry Xmas!) if we didn't pay up. Egg still haven't paid up from the Judgement Order. We wrote and told them they had agreed to place a hold on collection activity and they hadn't resolved the judgement. They wrote back and said the court had asked them to apply to have the case set aside because they made errors because they didn't know a case had been raised. We wrote back saying the court had said no such thing, they'd already got a letter from the court saying no errors were made, and that if they didn't know there was a case against them then how did they manage to assign a solicitor, send in an acknowledgement of service, and sign for the particulars of claim??? Got no response to this

 

Mid January - Egg solicitors lodge a formal complaint with the court stating that the court did not follow proper procedure.

 

Beginning of Feb - court dismiss complaint (again) stating that normal procedure was followed.

 

Last week. Egg issued another default stating that they would start court proceedings if we don't pay by 3rd March.

 

Judgement Order still hasn't been resolved by Egg.

 

Now Egg must apply to have the Judgement set aside (if the court will let them) or pay up.

 

While the Judgement Order is outstanding Egg can't issue proceedings against us. So their default threats are empty.

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  • 2 months later...

Egg terminated the account (again) without notice on the basis that the latest DN had not been complied with.

 

As the DNs didn't take into account the Judgement Order (if they had, then the DNs would not have been issued as Egg owe us more than we owe them) they are invalid (have checked this with a solicitor).

 

Have written to Egg accepting their unlawful termination.

 

Have raised another complaint with the Ombudsman.

 

Phoned the court today. Despite letters to the contrary, Egg have still not applied to have the Judgement set aside.

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