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

[Tingy]

A final attempt from me Toymaker. Please can you answer questions posed in post #72?

 

Thanks!

[The Mould]

Hello Toymaker1

 

The Notice of Assignment is not an issue/argument that is available to you in your defence to this action, as you say, both original creditors served the NOA upon you.

 

I have not read the entirety of your thread/case, can you please sum up for me in a nut shell, precisely what is your defence to this action?

 

Kind Regards

 

The Mould

[toymaker1]

Hello Toymaker1

 

The Notice of Assignment is not an issue/argument that is available to you in your defence to this action, as you say, both original creditors served the NOA upon you.

 

I have not read the entirety of your thread/case, can you please sum up for me in a nut shell, precisely what is your defence to this action?

 

Kind Regards

 

The Mould

 

Thanks for your interest.

I will set out the issues which caused the dispute to arise. This will take a bit of time.

I will get back to you when I have prepared something which will hopefully make my defence clear.

I must warn you, it is a bit complicated.

 

All the best.

 

Toymaker1

[Jasper1965]

 

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.

 

 

 

 

"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;

 

I'm guessing there were signs in your credit files and elsewhere that "there was an increased risk of non payment in relation to the Account" whilst this High Court case against a High st. Bank was going through.

 

Swings and roundabouts.........

 

Anything useful come out of your High Court ruling? We're always looking for new snippets of case law etc around here?

[The Mould]

Thanks for your interest.

I will set out the issues which caused the dispute to arise. This will take a bit of time.

I will get back to you when I have prepared something which will hopefully make my defence clear.

I must warn you, it is a bit complicated.

 

All the best.

 

Toymaker1

 

Thank you Toymaker1

 

That will be just fine, I want to see what your central argument is against this action.

 

When you are ready, post up your case, you have a far greater understanding of this matter than anyone reading your case/story, so, we need to be put in the same position as you are in, that way, we will have the knowledge that we require in order to provide you with the best possible assistance/advice.

 

Kind Regards

 

The Mould

[toymaker1]

I'm guessing there were signs in your credit files and elsewhere that "there was an increased risk of non payment in relation to the Account" whilst this High Court case against a High st. Bank was going through.

 

Swings and roundabouts.........

 

Anything useful come out of your High Court ruling? We're always looking for new snippets of case law etc around here?

 

There is no connection whatsoever between the high court proceeding against my bank, and the current claim against me by a DCA.

The high court case was in 1999. The issues of dispute which led to the current claim against me arose in 2006 and 2008.

 

You ask if anything useful came out of the High Court judgement. Well, for me it was useful -When making his judgement, the judge said " I am here to do practical justice".He then proceeded to get the bank to "agree" to write my £136,000 debt off, and he disallowed the Bank;s vast costs . (The bank was represented by one of the biggest law firms in the world) - and the Bank won!

It showed me that judges are prepared to make judgements based on fairness.

[toymaker1]

your argument is not with Egg, it is with the DCA. Your only possible argument with Egg I would have thought was selling an account that was in dispute, but I'm not sure there's anything to stop them doing this.

 

At the allocation hearing the judge ordered the claimant to produce a witness from Egg at the trial.

So the judge clearly seems to think that there are matters which Egg is required to explain.

[toymaker1]

 

I hardly believe that a court will hold restricting your credit as being unfair when the act specifically says that they can do this.

 

But S140 of the Act specifically says that the way in which they have enforced any of their rights (e.g. restricting your credit) under the agreement must not be unfair.

[toymaker1]

The fact that they have broken guidelines will not sway a judge in the slightest as they are only there to give judgement under the law.to

 

The OFT debt collection guidelines is a code of conduct which, although not imposed by legal or administrative requirements, all consumer credit licence holders undertake to be bound by.

In light of that, if a creditor breaches the OFT guidelines he has committed a prohibited act within the meaning of regulations 3 and 5 of The Consumer Protection from Unfair trading Regulations 2008.

[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.

 

Written notice is always required. See definition of "notice" at S189 of CCA.

 

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

Nothing wrong with that - the physical thing which is the credit card/credit token does belong to them. - the creditor permits the debtor to use it.

 

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

That's fair enough - the creditor is always free to decrease the credit limit, within the provisions of CCA.

 

" 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"

 

What's wrong with that? - Variation/modifying of agreements falls under S82 of the Act.

The creditor might indeed give no advance notice of his intentions, but might simply send a notice in the prescribed form informing the debtor of the changes the creditor is making.

[toymaker1]

 

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.

 

CCA is not silent on the subject of credit limits. Credit limits are included in the provisions of S10 of CCA.

[Jasper1965]

Written notice is always required. See definition of "notice" at S189 of CCA.

 

 

Sure when notice is required such notice must be "written notice" but the Egg contract which you were party to included the term "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." which I read to mean that if any of the circumstances are met they can end the agreement "at any time" if they serve you notice when required by law (not neccesary as it was not in default) and "tell you about it afterwards" (which they did and there is no prescribed form for the letter "telling you about it afterwards" either in statute or in the t&c's.

 

You need to proceed with your defence which means you need to stop and step back to look at the bigger picture.

One thing I would be looking at is this :

Sec 22.2 of the Egg agreement permits the creditor to end the agreement and tell you about it afterwards. (You must accept this, it's important).

Okay so Egg terminate the agreement under sec 22.2.

It's a non default account so no notice required under CCA1974 or any other statute.

The termination is within the terms and conditions (ie the contract governing the account).

I can see no reason for the termination to be unlawful (something you are desperately searching for).

Accept the account was terminated in accordance with the terms and conditions of the account and NOT in breach of any law.

 

Right so far so good.

 

Now:

 

(i) How can Egg then issue a default notice at a later date because the account was already LAWFULLY TERMINATED?

(ii) REF (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

 

)

Do any of these terms apply to you?

If not then there is no provision in the t&c's I found for them to ask you to repay the outstanding balance notwithstanding the fact that after lawful termination by the creditor you were no longer bound by the terms of the agreement anyway.

 

(iii) Bizarrely there is no clause regarding repayment of any amount outstanding upon termination of the account in cases where none of the specified reasons are met which would have me asking Egg something along the lines of "You seek enforcement of the agreement, yet in the circumstances the agreement fails to disclose any cause for action, please specify exactly which term of the agreement you are relying upon for this action in order that I may examine mty position more accurately?"

[nicklea]

toymaker,

 

Reading your last few posts I really am at a loss to understand your motivation.

 

I've just had a quick look back at some of your earlier posts and I note that you've been asking this same question about Egg for the last 2 1/2 years - with the same responses.

 

For some reason, I'm not too sure why, you feel that anything that anyone posts on here is incorrect and so I really do wonder what the motivation is for you posting here.

 

Also, and please forgive me for saying this so bluntly, you do sometimes seem to read only part of things and then make replies based on this partial reading. It might help if you took some time to read and digest what people say. If I may give you a couple of examples:-

 

The OFT debt collection guidelines is a code of conduct which, although not imposed by legal or administrative requirements, all consumer credit licence holders undertake to be bound by.

In light of that, if a creditor breaches the OFT guidelines he has committed a prohibited act within the meaning of regulations 3 and 5 of The Consumer Protection from Unfair trading Regulations 2008.

 

I am afraid that you are mistaken on this. It is not enough that they have failed to comply with a code of conduct, it must also cause the following:-

 

"and it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise, taking account of its factual context and of all its features and circumstances."

 

Good luck with demonstrating that. Also, I note that these regs became effective in May 2008 and, in your case, the action by Egg predates this and so it is not covered by these regulations in any event.

 

 

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.

 

CCA is not silent on the subject of credit limits. Credit limits are included in the provisions of S10 of CCA.

 

I don't know if you failed to read what I wrote or failed to read S10. I said that the CCA is silent on INCREASES in credit limits. Will you please inform me where in the CCA it says that creditors are allowed to increase credit limits.

 

Quite simply, it doesn't. Your contention all along has been that creditors can only do things that are specifically mentioned in the CCA and this is quite absurd as it would lead to, among other things, creditors not being able to alter credit limits.

 

I really would suggest that you try to park to one side this whole idea that if something is not explicitly permitted by the CCA then it must be prohibited because that is simply not the case.

 

With respect to s140, please stop refering to s140 as that has been repealed. You actually mean sections 140A and 140B - they are different sections.

 

It is up to the creditor to demonstrate that it has acted fairly. I would suggest that since the act explicitly allows the creditor to take steps to restrict credit then merely the act of doing this cannot be described as unfair as it was parliament's intention that creditors should be able to do this. So you need to look at how they did it. Well, they gave you notice that they were going to do this and that does not seem to be unfair to me.

 

Next, they kept your ability to make the minimum monthly payments that were in the agreement and that does not seem unfair to me. If they had demanded the full payment immediately then that would be another matter.

 

Yes, you are right that the courts will decide if the creditor has acted unfairly if you make the request however I would suggest that they will relatively easily be able to make the case that they did not act unfairly and this then blows your whole case out of the water.

[toymaker1]

they kept your ability to make the minimum monthly payments that were in the agreement and that does not seem unfair to me. If they had demanded the full payment immediately then that would be another matter.

 

Hi Nicklea.

 

You say that they kept my ability to make the minimum monthly payments that were in the agreement, and that does not seem unfair to you.

 

You may well be right - I am not a legal expert.

But if that is the case, I would be very interested to know (and it would help me formulate my defence), if you would say under what statute, or regulation, or which part of contract law they are entitled to receive from me the same monthly payments which existed in the contract which they have now terminated, of their own volition, and with no breach of the contract on my part?

If your answer is that they can just do it, because it is not specifically covered by CCA etc, etc. then I can equally say to them that I choose not to repay the debt on the same terms as the now terminated contract, - I could say to them what about coming to an agreed repayment arrangement based on a new contract I am willing to negotitate between us, as equal parties, which is affordable out of my income? - say £20 per month for example?

Edited December 31, 2010 by toymaker1
spelling

[toymaker1]

Hello Toymaker1

 

The Notice of Assignment is not an issue/argument that is available to you in your defence to this action, as you say, both original creditors served the NOA upon you.

 

I have not read the entirety of your thread/case, can you please sum up for me in a nut shell, precisely what is your defence to this action?

 

Kind Regards

 

The Mould

 

 

The essence of my defence is that the Claimant, by not investigating my reasonable queries regarding my regulated credit card agreements with Goldfish and with Egg, and by not ceasing collection activity whilst investigating my reasonable queries regarding those credit card agreements, has created an unfair relationship within the meaning of S140A of CCA 1974, between the Claimant, who is the creditor and myself, who is the debtor.

Also, insofar as the Claimant did not investigate my reasonable queries as required by paragraph 2.8 i of the OFT Debt Collection Guidance of July 2003,and did not cease collection activity whilst investigating my reasonable queries as required by paragraph 2.8 k. of the Guidance, the Claimant has breached the OFT Debt Collection Guidance. Although The OFT Debt Collection Guidance of July 2003 is a code of conduct not imposed by legal or administrative requirements, all consumer credit licence holders undertake to be bound by it. the Claimant, insofar as he has breached that code of conduct, has committed a prohibited act by carrying out an unfair commercial practice within the meaning of Regulations 3 and 5 of the Protection From Unfair Trading Regulations 2008.

 

If it would be useful I can post the chronological sequence of the dispute.

[toymaker1]

the Egg contract which you were party to included the term "22.2 We can end this Agreement at any time./QUOTE]

 

in my opinion term 22.2 is void.

S173 of CCA states that a term contained in a regulated agreement is void to the extent that it is inconsistent with a provision for the protection of the debtor contained in this Act, or in any regulation made under this act.

My understanding is that 22.2 is inconsistent, to give one example, with S89 of CCA.

That is to say, S89 is a provision for the protection of the debtor contained in the Act, and Egg term 22.2 is inconsistent with that provision, therefore 22.2 is a void term.

[nicklea]

Although The OFT Debt Collection Guidance of July 2003 is a code of conduct not imposed by legal or administrative requirements, all consumer credit licence holders undertake to be bound by it. the Claimant, insofar as he has breached that code of conduct, has committed a prohibited act by carrying out an unfair commercial practice within the meaning of Regulations 3 and 5 of the Protection From Unfair Trading Regulations 2008.

 

toymaker,

 

Again, you choose to ignore any advice that contradicts what is going on in your mind.

 

Did you not read, or perhaps not understand, what I said in my previous post. Merely breaching a code of conduct is not enough, of itself, to breach the regulations. Please reread my post for an explanation of why this is the case.

 

Also, in your case, these regulations do not in any event apply as Egg took this action prior to May 2008 and so they do not apply. Again, you spout off all this stuff but you haven't bothered to read it all properly first.

 

Anyway, I've had enough and I'm off to get incredibly drunk with a bunch of people who know how to have a good time.

[toymaker1]

 

I am afraid that you are mistaken on this. It is not enough that they have failed to comply with a code of conduct, it must also cause the following:-

 

"and it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise, taking account of its factual context and of all its features and circumstances."

 

Regulation 5(1) states that a commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).

The section you quoted is part of paragraph (2).

I quoted from part of paragraph (3).

[toymaker1]

toymaker,

in your case, these regulations do not in any event apply as Egg took this action prior to May 2008 and so they do not apply.

 

Goldfish breached the regulations in 2007 and have continued to breach them every day since then.

Egg breached the regulations in 2008 and have continued to breach them every day since then.

The Claimant breached the regulations in 2008 and have continued to breach them every day since.

[nicklea]

Again, another example of you not bothering to read everything and just making responses based on your partial reading of things. Here is the relevant part of S5, emphasis added:-

 

 

Misleading actions

5. —

(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).

 

(2) A commercial practice satisfies the conditions of this paragraph—

 

(a) if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and

 

(b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

 

 

(3) A commercial practice satisfies the conditions of this paragraph if— (a) it concerns any marketing of a product (including comparative advertising) which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor; or

 

(b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—

 

(i) the trader indicates in a commercial practice that he is bound by that code of conduct, and

 

(ii) the commitment is firm and capable of being verified and is not aspirational,

 

and it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise, taking account of its factual context and of all its features and circumstances.

As you can see I quoted from subsection 3 not subsection 2. Why on earth don't you bother to read things properly before responding if you want help from people.

 

If you're merely here to wind people up - you're doing a very good job.

 

Now it really is time for me to go out and party hard with a load of Russian friends who really know how to celebrate the New Year - с Новым годом

[nicklea]

Goldfish breached the regulations in 2007 and have continued to breach them every day since then.

Egg breached the regulations in 2008 and have continued to breach them every day since then.

The Claimant breached the regulations in 2008 and have continued to breach them every day since.

 

Ok, I promise this is my last post tonight.

 

The CPUTR regulations didn't exist in 2007 you stupid idiot. Also they are not retrospective. So how could they have broken them before they even existed. They only, according to you, broke them when they terminated your agreement. How can they be in breach of them every day when they took the action that you are complaining about on a specific date.

[toymaker1]

Ok, I promise this is my last post tonight.

 

The CPUTR regulations didn't exist in 2007 you stupid idiot. Also they are not retrospective. So how could they have broken them before they even existed. They only, according to you, broke them when they terminated your agreement. How can they be in breach of them every day when they took the action that you are complaining about on a specific date.

 

They dont need to be retrospective.

If the creditor took an action before the regs came into force that was not specifically unlawful at that time - say for example, before 2008-, my understanding is that if the creditor continues to take that action - say for example, failing to investigate a reasonable query- after the regs come into force during 2008, then that action is now unlawful, and the creditor is breaching the regs. From the day the regs come into force, he must change his business practices so that they conform with the regs, which are now compulsory.

In any event, in my case the claimant bought the debt after the date the regs came into force. If he considers himself to be now the creditor, with full rights and duties of the creditor, then he must comply with the regs.

[toymaker1]

Again, another example of you not bothering to read everything and just making responses based on your partial reading of things. Here is the relevant part of S5, emphasis added:-

 

 

Misleading actions

5. —

(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).

 

(2) A commercial practice satisfies the conditions of this paragraph—

 

(a) if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and

 

(b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

 

 

(3) A commercial practice satisfies the conditions of this paragraph if— (a) it concerns any marketing of a product (including comparative advertising) which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor; or

 

(b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—

 

(i) the trader indicates in a commercial practice that he is bound by that code of conduct, and

 

(ii) the commitment is firm and capable of being verified and is not aspirational,

 

and it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise, taking account of its factual context and of all its features and circumstances.

As you can see I quoted from subsection 3 not subsection 2. Why on earth don't you bother to read things properly before responding if you want help from people.

 

If you're merely here to wind people up - you're doing a very good job.

 

Now it really is time for me to go out and party hard with a load of Russian friends who really know how to celebrate the New Year - с Новым годом

 

I suggest that it is likely to cause "the average consumer" (notice - not neccessarily me, the defendant, in my specific circumstances) to take transactional decisions he would not otherwise take. For example, if it became widely known to the average consumer that a particular credit provider never dealt properly with customer complaints, then many average consumers would avoid doing business with that creditor, where in other circumstances they would do business with them.

[Jasper1965]

the Egg contract which you were party to included the term "22.2 We can end this Agreement at any time./QUOTE]

 

in my opinion term 22.2 is void.

S173 of CCA states that a term contained in a regulated agreement is void to the extent that it is inconsistent with a provision for the protection of the debtor contained in this Act, or in any regulation made under this act.

My understanding is that 22.2 is inconsistent, to give one example, with S89 of CCA.

That is to say, S89 is a provision for the protection of the debtor contained in the Act, and Egg term 22.2 is inconsistent with that provision, therefore 22.2 is a void term.

 

I'm sorry Toymaker I'm banging my head here.

 

I'll say this one more time then I'll probably do not much more than monitor the progress of this thread.

 

IT IS TO YOUR ADVANTAGE TO ACCEPT THAT THE ACCOUNT WAS TERMINATED LAWFULLY!!!

 

A creditor can remedy bad paperwork etc on an unlawfully terminated account as it can only be terminated unilaterally "IN ACCORDANCE WITH" or here's the killer "NOT IN BREACH" of the CCA1974 etc. Of course if the account is terminated unlawfully and the debtor acknowledges the termination accepting the unlawful recission then both parties become in agreement and the account is lawfully terminated under contract law.

 

You can argue the toss as much as you like about whether it's unfair, lawful etc. my 2p's worth is that it was both lawful and fair and I wouldn't pin your hopes on a Judge deciding otherwise.

 

Accepting that the termination was lawful you need to look at the finer details to see what options are available to you.

Did the OC sell the a/c before any notice period expired?

Did the OC actually terminate the account?

What reasons if any have they given?

Who really owns this account now?

When did they buy it?

Did you receive NOA's for the assignments?

What did the t&c's permit the parties to do?

Do you have a copy of the relevant t&c's?

And many more besides...

 

I've already given you what I believe could be a good pointer for a defence on the EGG card, ie default notice invalid as issued after "lawful" termination then forcing the creditor to specify which term(s) of the agreement in question they seek enforcement of....

 

you're getting suggestions from others from this forum much better placed to help than I.

 

You need to drop your arguments which at best are tantamount worthless mitigation and start compiling a defence.

 

And a happy new year everyone!!

[toymaker1]

 

I'm sorry Toymaker I'm banging my head here.

 

I'll say this one more time then I'll probably do not much more than monitor the progress of this thread.

 

IT IS TO YOUR ADVANTAGE TO ACCEPT THAT THE ACCOUNT WAS TERMINATED LAWFULLY!!!

 

A creditor can remedy bad paperwork etc on an unlawfully terminated account as it can only be terminated unilaterally "IN ACCORDANCE WITH" or here's the killer "NOT IN BREACH" of the CCA1974 etc. Of course if the account is terminated unlawfully and the debtor acknowledges the termination accepting the unlawful recission then both parties become in agreement and the account is lawfully terminated under contract law.

 

You can argue the toss as much as you like about whether it's unfair, lawful etc. my 2p's worth is that it was both lawful and fair and I wouldn't pin your hopes on a Judge deciding otherwise.

 

Accepting that the termination was lawful you need to look at the finer details to see what options are available to you.

Did the OC sell the a/c before any notice period expired?

Did the OC actually terminate the account?

What reasons if any have they given?

Who really owns this account now?

When did they buy it?

Did you receive NOA's for the assignments?

What did the t&c's permit the parties to do?

Do you have a copy of the relevant t&c's?

And many more besides...

 

I've already given you what I believe could be a good pointer for a defence on the EGG card, ie default notice invalid as issued after "lawful" termination then forcing the creditor to specify which term(s) of the agreement in question they seek enforcement of....

 

you're getting suggestions from others from this forum much better placed to help than I.

 

You need to drop your arguments which at best are tantamount worthless mitigation and start compiling a defence.

 

And a happy new year everyone!!

 

The unfairness wasn't because Egg terminated my account, it was because Egg totally ignored my reasonable query relating to the termination.

I do not believe that a judge will accept Egg's view that it was fair, within the meaning of S140A, for Egg to totally ignore my reasonable query.

My query was reasonable, and reasonably expressed, namely, In light of the fact that consumer credit transactions are governed by CCA and it's associated regulations, I asked Egg to indicate to me which section of CCA 1974 provided Egg with entitlement to terminate my Egg agreement.

Egg has never provided a substantive response to my query. I consider that to be unfair within the meaning of S140A.