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

[nicklea]

Long before the claim was started I requested copies of the agreements. The Egg one was in order, but the goldfish one did not comply with the regulatory requirements e.g. it was illegible, it was a copy of an application etc.

 

If the Egg CC had PPI then it is likely that it will not be enforceable. If it does not have PPI then it is likely to be enforceable.

 

With the Goldfish CC, just because they have sent you something entitled Application does not mean that it isn't enforceable. If all of the schedule 6 prescribed terms and your signature are on it then it will be enforceable.

 

My real defence revolves around 2 points, the £24000 claimed is a completely fictional debt created by the DCA. That is to say, they simply added together 2 completely separate, disputed debt amounts and said to the court that I owe them that amount.

They are allowed to do this.

 

 

From where I am coming, it just seems daft, completely illogical, and outside any legal provision for that to be the basis of their claim. Consider, for example, the matter of interest. each disputed and unrelated debt has an associated amount of interest, which will be unique to each particular contractual agreement, and the outcome of the dispute in each of the disputed agreements will determine how much interest is payable, by whom, and to which party in the two unrelated disputes.

Why do you say that the agreements are disputed - do you dispute signing the agreements or what.

 

 

The point I am making is that in terms of arithmetic alone, it would be impossible to accurately calculate the alleged debt total. due, before one even brings the law - i.e CCA 1974- into it.

That's how it seems to me, as a layman.

Why do you say that - each of the original creditors would have applied interest at the appropriate rates until they sold the debts to the DCA. Depending on the terms and conditions, interest may then also have been added on afterwards and you will, of course, be able to challenge the DCA to prove the accuracy of any amounts that it is claiming.

 

However, there is absolutely nothing wrong with them claiming both debts from you.

 

 

So, the 2 chief points of my wife's defence are,

1. the DCA cannot just add together 2 unrelated and disputed debts allegedly owed to two unrelated creditors, which the DCA bought, and claim that my wife owes the DCA that amount of money.

Yes they can. However, you are at liberty to ask them to prove the accuracy of their figures.

 

2. The DCA should not have bought the debts whilst they were being disputed with the original creditor - that is a breach of OFT debt guidelines.

I still don't get what your dispute is with the original creditors - do you deny ever signing an agreement or is it something else that you are disputing. And, by the way, you are wrong about it being a breach of the OFT Debt Collection Guidance. The nearest that exists to what you seem to be saying is 2.8 (k), however this just deals with debt collection activity, it mentions nothing about selling an account.

 

There is absolutely nothing wrong with a company selling a debt to another company regardless of the state of the account. And there is nothing wrong with a company buying multiple debts of one person and then pursuing them for all of those debts at the same time.

 

On those 2 chief grounds I have stated in our defence that the Claim is vexatious.

If that is your defence then I would suggest that you are going to have a very difficult time in court.

 

I would suggest that your best defence would be that you have not received notice of assignment of the debts and that you dispute the amounts claimed.

 

Have a read of this post for some idea of how to word a defence:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?283833-help-please-capquest-!&p=3215183&viewfull=1#post3215183

 

I would suggest that your main three lines of defence should be:-

 

1 - no notice of assignment

2 - default charges are an unlawful penalty

3 - dispute being sent default and terminataion notices

[nicklea]

oh boy, toymaker1 you areally are stuffed - like the proverbial turkey - if this is your defence. Sorry, I had to get a Christmas reference in here somewhere given the date.

 

But seriously, is that your only dispute with them.

 

As spamheed says, and he is far more blunt than I am, you don't have much of a chance.

 

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.

 

If the contract prohibited the creditor from terminating the agreement at anytime it wanted to or the CCA prohibited the creditor from terminating the agreement then, yes, they would not be able to terminate the agreement.

 

However, nowhere in the CCA or in the terms of the contract does it say that the credit may not terminate the agreement at any time, regardless of whether the account is in default or not. All the CCA does say is about what steps the creditor must go through in both default and non-defualt cases in order to terminate the agreement.

 

Basically, if this is your only defence then you really are stuffed.

 

Sorry, I don't mean to come across as being harsh but I would suggest that it is better to hear this now than when you get into court.

[nicklea]

In S87.

There is a widespread belief that because S87 refers to termination "by reason of any breach by the debtor of a regulated agreement", that implies that in situations where the debtor has not breached the agreement, the creditor can simply terminate by giving written notice, because the Act says nothing to the contrary.

However, I would refer you to the Explanatory Notes to the Consumer Credit Act issued by the Government in 2006.

Paragraph 36 of the 2006 Explanatory explains that section 87 of the Act requires a creditor to give the debtor a default notice in the prescribed form if he wishes to terminate the agreement.

Notice that it omits the phrase in the Act "by reason of any breach by the debtor of a regulated agreement."

The Government apparently considered that S87 seemed to require an explanation because it is open to misunderstanding.

I agree with them.

There can now be no misunderstanding of S87.

 

Did you happen to read the title of the section it was in - Default under regulated agreements

 

That gives you a little hint that it refers to Default under regulated agreements

 

 

That is without even taking S140 of CCA into account (fairness).

To give an example, suppose a creditor had a credit limit of £20,000, and his current debt owed was 10,000, which he paid by direct debit each month and never defaulted.

The creditor writes to him giving 14 days notice of termination.

The creditor is left owing £10,000, and has been deprived of the possibility of what he believed to be a further £10,000 available credit.

I consider that could be put to a judge as being an unfair within the meaning of S140.

Have a read of section of section 98, in particular 98(4) if you think that they can't deprive you of this extra 10,000. Here's another little hint, section 98 concerns:-

 

Duty to give notice of termination (non-default cases)

 

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

 

Once again, I would strongly suggest that you keep your defence simple

[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?

[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.

[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

[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.

[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.

[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.

[nicklea]

It's quite simple.

The Terms and conditions which are actually binding on me are the same T&C's which are binding on the creditor- namely those T&C's which are consistent with the provisions of CCA 1974 and it's associated regulations.

 

Once again, you are wrong.

 

The terms of the contract are binding on you unless they are INconsistent with the CCA or any other law.

 

You really mustr park this whole idea that unless something is explicitly allowed then it is prohibited

[nicklea]

I'm not sure what point you are making.

I totally agree with you that the terms of the contract are binding on me unless they are inconsistent with the CCA or any other law.

 

 

Ok, I will try to make it simpler. You are saying that the terms must be consistent. I am saying that they must not be inconsistent. There is a difference between the two.

 

Have a think about it

[nicklea]

Spamheed,

 

Banging my head hurts

:lol: :lol:

Edited January 1, 2011 by nicklea

[nicklea]

OK, explain the difference. I admit I dont know the difference.

 

Thanks.

 

Ok, time to go back to school,

 

One statement is consistent with another statement if it agrees with it.

 

One statement is not inconsistent with another statement if it does not disagree with it.

 

Lets take an example:-

 

Assume that today is Monday

 

Statement 1 - Today is Monday

Statement 2 - Today is a weekday

 

Statement 1 is consistent with statement 2 as it agrees with it

 

Secondly, again assume that today is Monday

 

Statement 1 - Today is Monday

Statement 2 - The time is 3pm

 

Statement 2 is not inconsistent with statement 1 as it does not disagree with it. In fact statement 2 mentions nothing about what day it is.

 

Now, I've noticed from some of your posts on other threads that sometimes you appear to have some difficulties in understanding analogies.

 

I would have thought that the above analogy would be self evident and not need further explanation - but even so I will try and point it out to you.

 

There is no statement in the CCA covering the non-default termination of a running credit agreement.

 

As long as the terms of the agreement relating to termination do not disagree with the CCA - or any other law - then they are not inconsistent and so, I would suggest, are enforceable.

 

Your contention has been that they must agree with the CCA and so, if the CCA is silent on a topic then any terms on this topic cannot agree with the CCA and so are prohibited.

 

Your contention is not correct.