DCA / Goldfish & Egg / combined the 2 debts into one alleged sum of money.

[nicklea]

I tried to point you to this earlier on. In this country you can do what you like as long as it is not forbidden. The CCA is silent on the matter of agreements that do not have an end date so it entirely depends on what the agreement says.

 

As I said, many posts ago, I really do suggest that you keep your defence simple and go with no notice of assignment and the fact that any contractual charges and the interest charged thereon are an unlawful penalty.

[nicklea]

I'm not saying I agree, but here is some recent case law you may find interesting:

 

 

 

S98 - no need for accurate Default Notice

 

This has recently been used as a defence against faulty Default Notice by Gough Square Chambers, London, acting for Lloyds.

 

 

Hi Tingy,

 

Was this a certain James Ross that you're talking about?

[toymaker1]

I tried to point you to this earlier on. In this country you can do what you like as long as it is not forbidden. The CCA is silent on the matter of agreements that do not have an end date so it entirely depends on what the agreement says.

 

As I said, many posts ago, I really do suggest that you keep your defence simple and go with no notice of assignment and the fact that any contractual charges and the interest charged thereon are an unlawful penalty.

 

So, Nicklea,

Are you saying that the OFT Notes on the Consumer Credit Act 1974 Post-Contract Information Requirements, issued by OFT July 2008 can safelyt be ignored by the court? For example, the section which states, at S6.6,:

"The 1974 Act requires service of a notice in a specified form if the creditor wishes to terminate a regulated agreement."

 

Seems pretty clear to me.

That is accurate information as to the meaning and intention of the Act, provided by the body which administers the Act, and regulates creditors, for the protection of consumers.

[toymaker1]

Termination of agreements

98.-(1) The creditor or owner is not entitled to terminate Duty to give a regulated agreement except by or after giving the debtor or notice of hirer not less than seven days' notice of the termination.

(2) Subsection (1) applies only where-

(a) a period for the duration of the agreement is specified in the agreement, and

(b) that period has not ended when the creditor or owner does an act mentioned in subsection (1),

 

The same applies to Sec 76 unfortunately.

 

You need to understand that a credit card is a running credit account and thus there cannot possibly be a period for the duration of the agreement specified in the agreement.

 

As you observe in post #41, this then knocks over your sec 76 and 98 arguments or any argument concerning the form of notice etc as they were simply not required as the accounts were not fixed sum agreements with a specified duration.

S87 is irrelevant as it's defaulted accounts.

 

A credit card is in essence repayable on demand.

 

Hello Jasper.

Unfortunately, I'm not quite sure what point you are making.

If you are saying that S98(1) does not apply to credit card agreements, then I agree with you. i.e. non-default credit card agreements cannot be terminated under S98.

 

If a credit card agreement can be terminated at any time, on the whim of the creditor, what is the purpose of CCA 1974? - there would be no need of it's provisions limiting the actions which can be taken by a creditor. - If your line of thinking was correct, a creditor would have no check on him- he could always just say to a debtor "i'm terminating the contract which exists between us."

[Jasper1965]

If your line of thinking was correct, a creditor would have no check on him- he could always just say to a debtor "i'm terminating the contract which exists between us."

 

A creditor or a debtor is usually allowed to terminate a running credit agreement at any time not neccesarily even subject to written notice being served. American Express became masters of this recently when they realised (allegedly) that a large number of card holders had unenforceable agreements (both in the UK and the US).

 

Here are some exerpts from the current Egg T&C's (a credit card agreement between Egg Banking plc of Citigroup Centre, Canada Square, London E14 5LB and you, the person who signed this Agreement.)

 

"The Cards belong to us. We can ask you to give them back or ask others to return them to us at any time"

 

"We will give you as much advance notice as we reasonably believe is appropriate when decreasing your Credit Limit"

 

" If we are making a change based on an individual assessment of affordability or risk, it will often be appropriate to give no advance notice"

 

"We may withdraw or vary any benefits we give you with the Card at any time. We will give you at least 30 days' advance notice unless we have a good reason for not doing so."

 

"20.1 We may cancel or suspend the use of all or any Cards, and the Account:

 

if the conduct of the Account, or any account you hold with a Group company or other information about you leads us to reasonably believe that there is an increased risk of non payment in relation to the Account;

"

 

"21.2 As long as we have sent you any notice as required under the Consumer Credit Act 1974, we can ask you to pay the full amount which you owe us under this Agreement if you:

• 
  
• seriously or repeatedly fail to comply with your obligations under this Agreement;
  
• die; or
  
• become bankrupt, are sequestrated, or if a proposal is made for a voluntary or other arrangement with all or any of your creditors.
  

"

22.2 We can end this Agreement at any time. We will normally give you 30 days' advance notice by post or e-mail. However, if there are exceptional circumstances, or in any of the circumstances referred to in Condition 21.2, we may end this Agreement immediately and tell you about it afterwards, unless we are required by law to give you notice first. You can end it at any time by telling us to do so by post, phone or Secure Message.

 

And just to emphasise how important the terms and conditions might be to you, here's a quote from what appears to be an earlier set of T&C's on the same page (a credit card agreement between Egg Banking plc of Laurence Pountney Hill, London EC4R 0HH and you, the person who signed this Agreement.)

 

"20.2 We can end this Agreement by giving you not less than 30 days' notice by post or e-mail. If there are exceptional circumstances we can end it without advance notice. You can end it at any time by telling us to do so by post or e-mail. In both cases this Agreement will continue until you have repaid all amounts you owe us."

 

And let's just revisit this line:

"21.2 As long as we have sent you any notice as required under the Consumer Credit Act 1974, we can ask you to pay the full amount which you owe us under this Agreement if you"

 

"As long as we have sent you any notice as required under the Consumer Credit Act 1974", no notice was required as the account was not in default so effectively 21.2 reads " we can ask you to pay the full amount which you owe us under this Agreement if you seriously or repeatedly fail to comply with your obligations under this Agreement"

 

So we know you didn't die and you haven't mentioned bankruptcy so it remains that you must have seriously or repeatedly fail(ed) to comply with your obligations under this Agreement.

 

Or did you??? This should be provable, if you made your payments regularly and promptly then it could be argued in your defence that Egg breached their own T&C's, suggest if this is the case you accept their recission of contract by virtue of a breach of the t&C's pronto to perfect the termination and reduce your liability.

Edited December 30, 2010 by Jasper1965

[toymaker1]

A creditor or a debtor is usually allowed to terminate a running credit agreement at any time not neccesarily even subject to written notice being served.

 

Hi Jasper.

I am not a lawyer, so I stand to be corrected, but my understanding is a debtor is allowed to terminate a running credit agreement at any time, but a creditor is not.

Even then, it must be in writing. - S189 of CCA says that a notice means a notice in writing.

S94 of CCA says that a debtor can terminate an agreement by giving a notice to the creditor, and repaying to the creditor any outstanding money on the account.

It specifies that this option is available to a debtor, nowhere in the Act does it say that a creditor can terminate in that manner. - my understanding is that when a creditor wishes to terminate he must do it in a form prescribed by the relevant regulations and schedules.

[toymaker1]

Exactly where in the CCA do you think that it prohibits a creditor from terminating a credit account in non-default circumstances. You have to remember that, in this country, you can basically do what you like unless it is prohibited.

 

I do not agree with you. My understanding is that the principle that you can do what you like unless it is prohibited applies to the everyday activities of individual people.

However, in the case of consumer credit, every action taken by a creditor in relation to the provision of credit is governed by consumer protection law and/or regulations which derive their authority from that law.

Where a creditor takes an action in relation to the provision of credit which is not specifically mentioned in the relevant consumer protection law or regulation, then, of that action is open to being tested in court against principles such as, does the action in question serve the national interest? Does the action reflect the creditor and the debtor being on an equal footing? Is the action in question consistent with the primary purpose of CCA 1974, namely protection of the consumer?

No action taken by a creditor in relation to the provision of credit can be considered to be outside the scope of CCA 1974, even when no specific mention of that action is made in CCA.

For example, termination of a credit card agreement in non-default cases is not an action that somehow exists totally outside any contractual or other legal restriction.

Since the introduction of S140 in 2006, such actions by a creditor have become even more liable to be scrutinized by the courts.

[spamheed]

I have never denied that I borrowed the money, and that is not part of my defence.

They assigned the debt to Cabot who is the claimant.

 

In response to the above statement, since the fact that you owe the money is the crux of their claim, why does it not come into your defence?

 

Have you even looked into the assignment? without an assignment how can you owe Cabot anything? have you looked into charges and interest? being an Egg claim, is there PPI showing on the agreement, is the amount on the claim form correct?

 

This appears to be going around in circles - Once again you focus on only the termination and maintain that the stance you are taking with your defence is 100% correct and then ask for advice/confirmation that you are correct. when an opposite opinion is posted you then argue the merits of your pre-stated defence.

[toymaker1]

since the fact that you owe the money is the crux of their claim, why does it not come into your defence?

My defence is that the money is not owed to the claimant. If any money is owed it is to two original creditors, who assigned the debts to the claimant, in full knowledge that the debts were disputed.

At the allocation hearing the judge ordered the claimant to provide witnesses from the two original creditors. - I am thinking about adding the two original creditors as party to the proceedings.

[quote=spamheed;3240574

Have you even looked into the assignment? without an assignment how can you owe Cabot anything?

I have looked into the assignment and I consider it to be unlawful. For example, I mentioned that the original debts were in dispute. Therefore there is a potential financial liability on one or other of the parties, depending on the outcome of those disputes, which have never been addressed in any way by the original creditors, or by the claimant.

in 1993 in the House of Lords, Lord Browne Wilkinson said "the phrase assign this contract is not strictly accurate, lawyers frequently use those words innacurately to describe an assignment of the benefit of a contract since every lawyer knows that the burden of a contract cannot be assigned"

is the amount on the claim form correct?

No. The claimant has simply arbitrarily aggregated two unrelated debts, and claimed that I owe the claimant that amount. - there exists no written agreement for the debt allegedly owed to the claimant. He has never informed me that I owed him that amount. - he simply put it into his POC.

 

I am looking forward to meeting the witnesses from the two original creditors.

[Tingy]

Toymaker - do you mind if I ask a straightforward question for a straightforward yes or no answer please.

 

You have been given a lot of advice and people have invested a lot of time trying to help and guide you here, yet you are basically still defending your original defence. Now the question:

 

Are you willing to change your line of defence? Please, just yes or no.

[toymaker1]

Toymaker - do you mind if I ask a straightforward question for a straightforward yes or no answer please.

 

You have been given a lot of advice and people have invested a lot of time trying to help and guide you here, yet you are basically still defending your original defence. Now the question:

 

Are you willing to change your line of defence? Please, just yes or no.

Yes.

[nicklea]

LOL - you beat me to it Tingy.

 

By the way, I just noticed that he's been going on about the same issues in a thread on the Egg forum for the last 4 months and he's been given exactly the same advice there as well.

[Tingy]

OK Toymaker. Next question, again yes or no please. We now for the time being totally drop all your hard work (bu**er I know!) and start to concstruct a proper defence for you (which may or may not include bits of your old one). Yes or no? (Got to out now till this evening, so am hoping to come back later to find your new defence already started!) Glad you responded that way to the first question, hope you're willing to take the final step in your response to this question then we can get cracking and try to help!

[toymaker1]

OK Toymaker. Next question, again yes or no please. We now for the time being totally drop all your hard work (bu**er I know!) and start to concstruct a proper defence for you (which may or may not include bits of your old one). Yes or no? (Got to out now till this evening, so am hoping to come back later to find your new defence already started!) Glad you responded that way to the first question, hope you're willing to take the final step in your response to this question then we can get cracking and try to help!

Yes

[toymaker1]

In this country you can do what you like as long as it is not forbidden.

My understanding is that this applies to the individual person, and that it does not apply to corporate or public bodies, and does not apply to businesses whose dealings are governed by specific laws and regulations derived from those laws.

For example, providers of credit cannot do what they like.

I consider that there is no action that a creditor can take in the course of acting as a provider of credit under CCA which falls outside the provisions of CCA 1974 and it's associated regulations.

Insofar as an action taken by a provider of credit under CCA could conceivably fall outside the provisions of CCA, it would then fall under contract law. - which in the case of wrongful termination of a contract could render a creditor potentially liable for damages for repudiatory breach of contract.

But, as I said, I dont believe that a credit card agreement would fall under non CCA contract law, because the terms are not personally negotiated by the parties, - they are terms which comply with the provisions of CCA.

In the case of termination of credit card agreements in non-default cases,

in July 2008 the OFT stated that The Consumer Credit Act 1974 requires service of a notice in a specified form if the creditor wishes to terminate a regulated consumer credit agreement.

That is a very clear statement, made by the body which is responsible for administering CCA 1974, and which is responsible for regulating the conduct of providers of credit for the protection of consumers and in the national interest.

I do not believe that a court would ignore the principle embodied in that OFT statement.

[spamheed]

My defence is that the money is not owed to the claimant. If any money is owed it is to two original creditors, who assigned the debts to the claimant, in full knowledge that the debts were disputed. which is not unlawful, it may be against the OFT guidelines, but this in itself is not unlawful, if your judge say (as many others have) that "on the balance of probabilities there has been an assignment and it has been performed in line with LOP" your argument fails, have you obtained any of the documents pertaining to the assignment from the claimant? - either Notice of Assignment (from Egg) or deed of assignment (from either)

 

At the allocation hearing the judge ordered the claimant to provide witnesses from the two original creditors. - I am thinking about adding the two original creditors as party to the proceedings. If a representative from the bank appears (or more likely provides a witness statement) and states quite clearly that "this" is what happened,

 

They also state that it was all completed correctly and completely in line with the terms and conditions of the bank and here is the policy which covers this action for this type of credit and then goes on to produce a document containing their terms and conditions in support of this (which they will)

 

- what you going to say in response to that? - that the witness is wrong and the document is wrong and the policy is wrong? etc and so on - how you going to underpin your argument that "they" are wrong? - it is then nothing more your word against that of a large financial institution.

 

This isn't about you having the opportunity of arguing points of law with the bank, the judge wouldn't allow that, this is about who can persuade the judge that their argument is soundest.

 

I have looked into the assignment and I consider it to be unlawful, have you obtained any other opinions which concur with your own?

 

For example, I mentioned that the original debts were in dispute - this is not unlawful - as stated it is merely against OFT guidelines.

 

Depending on the outcome of those disputes, which have never been addressed in any way by the original creditors, or by the claimant. You have a point - the debts were in default, but which laws and/or statutes were broken and how have you been prejudiced by their actions?

 

No. The claimant has simply arbitrarily aggregated two unrelated debts, and claimed that I owe the claimant that amount. - there exists no written agreement for the debt allegedly owed to the claimant. He has never informed me that I owed him that amount. - he simply put it into his POC. and this is where (IMHO) you need to direct your defence

 

I am looking forward to meeting the witnesses from the two original creditors - That could blow up in your face grandly if you do not have the evidence to reinforce your own argument.

 

IMHO you still need a lot more

 

I would suggest looking a lot more closely into the assignment, get copies of the Noa and Doa - check any dates - a mismatching of dates and their case fails and it is entirely possible that they will do as they did with me and, in all probability they'll send you by way of a Deed nothing more than a heavilly redacted document which proves nothing by way of assignment. it's not a case winner on its own but in undermines their claim

 

Check closely both agreements, point out which terms they have broken, or better still see if either has a T&C which directly conflicts with the other. do either (both) agreements include any element of PPI - did you request it? have you claimed for it and been refused? were you self employed? if the PPI was missold it won't necessarily win the case outright, but it would rubbish the amount stated in their claim

 

Are the % rates the same on both agreements? No? then how can they be sure that the % applied to the amount claimed is correct

as above, possibly not enough on its own but it proves they are making it up as they go along

 

The amount claimed on the POC? - have they provided you with a breakdown of the amount, with agreements, terms and conditions and full statements of account for each account and also for the amount claimed on their POC? if the amount is proven to be incorrect their claim is dead

 

The answers to all these (and probably a lot more need to be found way before you get anywhere near a court and certainly before a judge sees your defence. and more importantly you will have documentary proof which will be supported by statute and law (which they have also breached)

 

They can and should be made to disclose all of this information to you before the trail to allow you to build a defence.

Edited December 30, 2010 by spamheed

[toymaker1]

Thanks spamheed.

 

Lots of stuff to think about there.

I suppose it's one way to see the new year in.

[nicklea]

My understanding is that this applies to the individual person, and that it does not apply to corporate or public bodies, and does not apply to businesses whose dealings are governed by specific laws and regulations derived from those laws.

 

The Companies Act prevents a company from doing anything outside of it's objects - so there is a law that prohibits them doing some things. Apart from that prohibition they can do what they like. Most companies have their objects written so widely and generally that they can pretty much do what they like.

 

For example, providers of credit cannot do what they like.

I consider that there is no action that a creditor can take in the course of acting as a provider of credit under CCA which falls outside the provisions of CCA 1974 and it's associated regulations.

 

Ok you don't seem to accept any arguments about ending your agreement so I will use another example. If your supposition was correct then it would mean that it would be unlawful for a creditor to increase your credit limit at any time as there is no provision in the CCA for them to do that - it is silent on the subject. If your argument is correct then this is a unavoidable consequence. Are you suggesting that creditors are not allowed to alter credit limits.

 

Insofar as an action taken by a provider of credit under CCA could conceivably fall outside the provisions of CCA, it would then fall under contract law. - which in the case of wrongful termination of a contract could render a creditor potentially liable for damages for repudiatory breach of contract.

 

In what way has the termination been wrongful. There is a term in the contract that allows them to do this and the CCA does not prevent it. The creditor has not breached the contract as there is a term in the contract that allows them to do this.

 

Whether that term is unfair or not is an entirely different matter, but the fact remains that they did not breach any terms of the contract and I would suggest that you will not get anywhere suggesting that there has been a repudiatory breach. Believe me, I've been involved in a claim involving repudiatory breach a couple of years ago and I had to learn an awful lot.

 

But, as I said, I dont believe that a credit card agreement would fall under non CCA contract law, because the terms are not personally negotiated by the parties, - they are terms which comply with the provisions of CCA.

 

Sorry, but to me, this is a really meaningless statement. There are certain terms that must be there under the 1983 Regs, in particular those from Schedule 6. Outside of this the CCA is silent on what terms should be in an agreement.

 

Do you really believe that such terms as charging a handling fee for overseas transactions, or limiting the number of cash withdrawals 'complies' with the CCA. These things are mentioned nowhere in the CCA. So, by your reasoning above, since they are not specifically mentioned then they must be unlawful.

 

I do not believe that a court would ignore the principle embodied in that OFT statement.

 

Have you been in court before. Unfortunately, I hve a couple of times and I would suggest that your belief is rather misplaced.

 

Please, please, please keep your defence simple and to the point.

 

As I've said a number of times now, you really do need to concentrate on three things:-

 

1 No notice of assignment

2 Dispute the default notice - I understand that you defaulted the Egg agreement after it was sold. This could open up some interesting arguments

3 Any contractual charges and the interest thereon are an unlawful penalty

[Tingy]

Toymaker,

 

Brilliant news to come back home to - well done for taking what I understand was a very hard step for you. We have all got our work cut out, but at least now we can all work together constructively to do our best to build a defence. I'm pretty new to court proceedings and producing defences, but I'll certainly give it my best shot with you as I'm sure many others will now they can see a change of heart. As you say one way to see the New Year in, and in my opinion, for what it's worth, a much more positive way than you were persuing which I fear was doomed to fail (and I'm not saying for one moment I disagree with you on a lot of it - you'd clearly put a huge amount of effort and research into it). Sadly however, it's not how we see it, it's how a judge will see it.

 

I'll look forward to some work along with hopefully some people far more experienced than me (as spamheed and Nicklea obviously are!)

Edited December 30, 2010 by Tingy

[toymaker1]

The creditor has not breached the contract as there is a term in the contract that allows them to do this.

Whether that term is unfair or not is an entirely different matter

 

I submit that whether that term is unfair or not is not an entirely different matter. - it is the heart of the matter, and it would be for the court to decide whether it is unfair within the meaning of S140. of the Act.

 

As you have asked me directly, I took high court action against a high street bank as a litigant in person, which I lost.

However, the first words of the judge were "I am here to do justice". You might find it hard to believe, but he wrote off my liability of £136,000, and did not allow their costs.

My legal advice was pro-bono.

[spamheed]

I submit that whether that term is unfair or not is not an entirely different matter. - it is the heart of the matter, and it would be for the court to decide whether it is unfair within the meaning of S140. of the Act. but in itself it's not unlawful, the court will normally decide based on the law and only after that will they look into the fairness of it

 

As you have asked me directly, I took high court action against a high street bank as a litigant in person, which I lost.

However, the first words of the judge were "I am here to do justice". You might find it hard to believe, but he wrote off my liability of £136,000, and did not allow their costs. if the judge wrote off your liability then this would have meant that you won, so costs would never have been awarded to the "losing" side

My legal advice was pro-bono.

 

Nobody is doubting your intelligence, or your integrity, or your level of knowledge, or your experience. it is all about the defence, at the start of this thread you had pinpointed one area to the enth degree on which you were going to defend your case. this IMHO was a mistake which can be quite simply remedied (with an open mind), you need to try to utilise every available option and create enough doubt in their argument to sway the judge

 

I do not believe that a court would ignore the principle embodied in that OFT statement.

 

Would you really want to gamble on this?

[Tingy]

 

Please, please, please keep your defence simple and to the point.

 

As I've said a number of times now, you really do need to concentrate on three things:-

 

1 No notice of assignment

2 Dispute the default notice - I understand that you defaulted the Egg agreement after it was sold. This could open up some interesting arguments

3 Any contractual charges and the interest thereon are an unlawful penalty

 

Ok, time for another question - you'll be relieved to hear it's not yes or no this time.

 

The basis of your defence is outlined simply in three points above. How do you propse to expand on this?

[toymaker1]

if the judge wrote off your liability then this would have meant that you won, so costs would never have been awarded to the "losing" side

 

I can only tell you what happened. My debt (which was originally £70,000 but rose to £136,00 due to interest etc) was written off.

The actual words were

"The Defendant consenting by it's counsel to this order recording that it forgives the Plaintiffs any outstanding indebtedness save as to the costs of this action."

 

..........."any costs thrown away by the defendant failing to make their application promptly after the judgement entered in default had been set aside shall be disallowed as well as the costs of instructing counsel to settle the defence, his fee for and service of the same"

Their costs were in excess of £50,000.

As I said, I had no significant costs, as my advice was given pro bono.

[toymaker1]

Ok, time for another question - you'll be relieved to hear it's not yes or no this time.

 

The basis of your defence is outlined simply in three points above. How do you propse to expand on this?

I did receive a letter from both original creditors with whom I was in dispute, informing me that the debt had been sold to a DCA.

 

Egg terminated my undefaulted agreement in March 2008. In April 2008, a month after Egg had terminated the agreement, Egg terminated the agreement again.

[spamheed]

I get the distinct impression that everything advised is falling on very deaf ears. This is becoming circular and quite pointless

 

Since I have never been to court and had huge amounts of debt written off, I would have to concede whatever point it is that you are trying to make.

Also, since you have made it abundantly clear that you know better than everyone else and that your way is the only way a defence should be compiled

 

I shall take no farther part in this.