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

[spamheed]

My pleasure

 

They are a little convoluted and sometimes difficult to get ones head around - but the best legal arguments and biggest wins on here seem to come from those who understand and use the system to their greatest advantage. and given that the phrase "judge lottery" is becoming more and more prevalent, it is becoming very obvious that if you can't persuade the judge who isn't aware of consumer law that your arguments are correct, then the other side will and judgement will go to the claimant (again)

 

Try not to let it take over and enjoy the rest of the holidays

Edited December 26, 2010 by spamheed

[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

[toymaker1]

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

 

Thanks for your response nicklea.

I 'm afraid I dont agree with your reading of the heading to S87 of CCA.

Well, maybe you have a different version. The copy I have reads

"Need for default"

- which is not at all the same meaning as just "default"

To me, "need for default" suggests that the account needs to be in default before the actions provided for in S87 can be taken by the creditor.

[toymaker1]

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 have read S98 very carefully. S98(2) provides that the termination permitted under S98 (i.e. the right to terminate an agreement which is not in default by giving 7 days notice) applies only to agreements where a period for the duration of the agreement is specified in the agreement.S98

It is clear from S98(2) that S98 does not apply to credit card agreements where, as you know, a period for the duration of the agreement is not specified in the agreement.

[Tingy]

Toymaker - I've just read this thread from start to finish. Two things strike me:

 

1. You are making posts asking for advice, then disagreeing with the advice when it is offered in good faith.

 

2. You seem to have already decided how you are going to try to defend your case and appear unwilling to listen to advice from those who know what they're talking about and trying to give you sage guidance.

 

Therefore it would appear to me, and I mean no offence by this, that there is little or no point in posting further unless you genuinely want help and are prepared to swallow your pride a bit and listen to it. I fully understand you are extremely annoyed by all this, but the facts are they have done nothing significantly wrong that you can evidence clearly and which would also have a significant bearing on the outcome of this case.

 

I wish you luck in your way forward, but honestly do not think you will find what you are seeking on this forum while you maintain your present attitude.

[toymaker1]

Toymaker - I've just read this thread from start to finish. Two things strike me:

 

1. You are making posts asking for advice, then disagreeing with the advice when it is offered in good faith.

 

2. You seem to have already decided how you are going to try to defend your case and appear unwilling to listen to advice from those who know what they're talking about and trying to give you sage guidance.

 

Therefore it would appear to me, and I mean no offence by this, that there is little or no point in posting further unless you genuinely want help and are prepared to swallow your pride a bit and listen to it. I fully understand you are extremely annoyed by all this, but the facts are they have done nothing significantly wrong that you can evidence clearly and which would also have a significant bearing on the outcome of this case.

 

I wish you luck in your way forward, but honestly do not think you will find what you are seeking on this forum while you maintain your present attitude.

 

Hello Tingy.

I take it then that you do not agree with the opinion I have expressed in my post 29?

I would be interested to hear your understanding of S98.

 

Regards

[Tingy]

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.

 

17. In any event, S87 of the Act provides that a creditor must serve a default notice on the debtor before becoming entitled, by reason of any breach of the agreement, to terminate

 

18. Service of a default notice is not required where the creditor has the right to terminate the agreement which is not contingent upon reach. Both parties had the right to terminate the credit agreement at any time. This is usual in agreements of indeterminate duration. Section 98 only requires noticies of termination for fixed contracts with fixed durations.

　

Section 98. Duty to give notice of termination (non-default cases).—

(1) The creditor or owner is not entitled to terminate a regulated agreement except by or after giving the debtor or 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),

but so applies notwithstanding that, under the agreement, any party is entitled to terminate it before the end of the period so specified.

(3) A notice under subsection (1) is ineffective if not in the prescribed form.

(4) Subsection (1) does not prevent a creditor from treating the right to draw on any credit as restricted or deferred and taking such steps as may be necessary to make the restriction or deferment effective.

(5) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

(6) Subsection (1) does not apply to the termination of a regulated agreement by reason of any breach by the debtor or hirer of the agreement.

19. The claiment was not required by the act to serve a default notice on the defendant before terminating the agreement. Any discrepancy in the notice is therefore irrelevant to the debt owned by the defendant.

 

 

 

What I would maintain is there's little point in posting here if you're going to argue against everything that is offered. The aim is to help you, not work against you, but this is impossible if you have decided the action you are taking, irrespective of anything posted here. You seem to want ratification that your defence is a solid one; you're not getting that, but seem unwilling to change your stance and rethink your defence. In this situation it is very hard, with the best will in the world, to offer constructive advice.

Edited December 26, 2010 by Tingy

[Tingy]

Also:

 

The 2006 Act has introduced a new statutory weapon to enable an individual debtor to attack

any credit agreement where the relationship between the creditor and the debtor arising out of

and relating to the agreement has in any way given rise to “unfairness” detrimental to the

debtor. The new statutory provisions will however open up to scrutiny the whole course of dealing between a creditor and an individual debtor, albeit that

the foundation of the relationship, and so of any unfairness, remain the terms of the agreement

itself.

26. “Transparency” and “fairness” were the legislative buzz-words providing the broad justification

for many of the new provisions and concepts contained in the 2006 Act. Lord Sainsbury, the

promotor of the Bill in the House of Lords, put it this way:

“We need to drive out irresponsible lending, not only to protect consumers, but also to

ensure that credible businesses can operate with confidence in a competitive market.

We also want to empower consumers to make informed borrowing decisions. This relies

on transparency and clarity of agreements with lenders, and on consumer confidence in

appropriate levels of rights and redress.”17

27. It was considered that high levels of personal indebtedness were occurring because U.K.

consumers simply did not understand, in advance of agreements or during their currency, the

consequences of default. Whether this assumption was well-founded, the legislature took the

view that the burden ought to be placed on creditors to ensure that the relationship with the

consumer debtor became open, transparent and fair: the more transparent the relationship, so

the logic appears to run, the less likely consumers were to fall into and continue to suffer

damaging levels of debt. The 2006 Act responded to these social concerns in a number of

14 See s. 61(1)(a) CCA; s.65(1) CCA

15 S.16A CCA

16 S.16A(1)(a) CCA

17 Hansard, 24th October 2005, Col. 1026.

5

ways, ranging from the formalistic (e.g. a requirement that debtors be notified when they default)

to the radical. Perhaps most far-reachingly, the much-maligned provisions for the re-opening of

extortionate credit bargains were repealed wholesale as from 6th April 2008, and a new system

for judicial control of unfair relationships between creditors and debtors came into force.

 

 

Did you understand what you were signing at the time you signed it? Did you understand the consequences of default? These seem to be the main thrust of the actIf you understood or not, as I read it you will find it very hard to prove an unfair relationship.

[toymaker1]

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.

 

17. In any event, S87 of the Act provides that a creditor must serve a default notice on the debtor before becoming entitled, by reason of any breach of the agreement, to terminate

 

18. Service of a default notice is not required where the creditor has the right to terminate the agreement which is not contingent upon reach. Both parties had the right to terminate the credit agreement at any time. This is usual in agreements of indeterminate duration. Section 98 only requires noticies of termination for fixed contracts with fixed durations.

　

Section 98. Duty to give notice of termination (non-default cases).—

(1) The creditor or owner is not entitled to terminate a regulated agreement except by or after giving the debtor or 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),

but so applies notwithstanding that, under the agreement, any party is entitled to terminate it before the end of the period so specified.

(3) A notice under subsection (1) is ineffective if not in the prescribed form.

(4) Subsection (1) does not prevent a creditor from treating the right to draw on any credit as restricted or deferred and taking such steps as may be necessary to make the restriction or deferment effective.

(5) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

(6) Subsection (1) does not apply to the termination of a regulated agreement by reason of any breach by the debtor or hirer of the agreement.

19. The claiment was not required by the act to serve a default notice on the defendant before terminating the agreement. Any discrepancy in the notice is therefore irrelevant to the debt owned by the defendant.

 

 

 

What I would maintain is there's little point in posting here if you're going to argue against everything that is offered. The aim is to help you, not work against you, but this is impossible if you have decided the action you are taking, irrespective of anything posted here. You seem to want ratification that your defence is a solid one; you're not getting that, but seem unwilling to change your stance and rethink your defence. In this situation it is very hard, with the best will in the world, to offer constructive advice.

Thanks for that info Tingy.

It's difficult to to fully understand the points you raise without knowing exactly what sort of agreement was in dispute.

For example, did the dispute concern a credit card agreement which was in default?

[Tingy]

Thanks for that info Tingy.

It's difficult to to fully understand the points you raise without knowing exactly what sort of agreement was in dispute.

For example, did the dispute concern a credit card agreement which was in default?

 

Yep, it was over a credit card agreement, specifically Egg. Egg were very crafty at the time getting around S98 and thousands suffered because of Egg's actions. Your case doesn't fall exactly into this category having said that, but Egg are very slippery as they seem to find areas the CCA does not cover. However, 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.

 

Sorry I appear to be being deliberately awkward - I'm not! I just wouldn't like to see you end up in a worse situation by taking the wrong line for your defence.

 

That's me done for tonight I'm afraid - off to bed!

[spamheed]

Thanks for that info Tingy.

It's difficult to to fully understand the points you raise without knowing exactly what sort of agreement was in dispute.

For example, did the dispute concern a credit card agreement which was in default?

 

I fail to see any relevance in this argument, or any merit in its continued and quite protracted discussion.

 

If we are here to assist in the compilation of a defence based on all evidence available then fair enough, however, if we are here to bang heads in an attempt to get everyone to agree to a defence hinged solely on an individuals interpretation of s98 which would fall apart under even the vaguest of scrutiny then I will take my leave of this thread without further comment

[Tingy]

 

Sorry I appear to be being deliberately awkward - I'm not! I just wouldn't like to see you end up in a worse situation by taking the wrong line for your defence.

 

 

Hi Spamheed,

 

As you can see from the direct quote from my last post last night I would agree. However, despite my previous very blunt post #30 I feel toymaker needs convincing to drop this line of defence and produce one based on more subtantial claims. I agree S98 would fall apart immediately, hence my posts about it in direct response to OP's post #31.

 

I appreciate that members have to make their own decisions and live with them in the end, but also believe part of the aim of this site, as I see it, is to try and stop them making the situation worse for themselves by following the wrong course of action. The OP has obviously put a lot of thought and research into this for which we should give him/her credit. However they also seem determined to follow that course of action regardless of any advice. I feel this will get them into a worse position so am trying to persuade them otherwise. If this means dissecting sections of the CCA then so be it.

 

With your post I would simply have said, "If we are here to assist then fair enough." Part of the assistance is persuading the OP not to follow the lines they currently are following. I fail to see any banging of heads trying to get everyone to agree over S98, I see someone (me) trying to give sensible guidance to another poster. As the saying goes, "Patience is a virtue!" - this requires patience, and I will admit I ran out of it last night and went to bed as I was fed up of the OP endlessly coming back at my attempts to help. However, today is a new day, and I'm currently giving the benefit of the doubt to the OP as I know when you've put a lot of work into something it's hard to admit you may have gone down the wrong line.

 

What we definitely do not need is arguments on an amicable site.

[toymaker1]

nowhere in the CCA does it say that the credit may not terminate the agreement at any time, 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.

 

 

I take your point, regarding termination of agreements by the creditor, that all the CCA does say is about what steps the creditor must go through in order to terminate the agreement.

It would be very useful if you would indicate the relevant section in CCA which sets out the steps the creditor must go through in order to terminate a credit card agreement in non default cases. ?

 

Thanks.

[toymaker1]

Is there a Cagger out there who knows the prescribed form which a creditor must comply with if he wishes to terminate a credit card agreement in non-default cases.?

 

The reason I am asking is that there are numerous places in CCA 1974 where it says that a notice is ineffective if not in the prescribed form.

I was hoping that someone with knowledge of consumer credit law would be able to say what the prescribed form of termination notice is, or where in CCA or regulations one would find it.

[Tingy]

Any use?

 

76 Duty to give notice before taking certain action

 

(1) The creditor or owner is not entitled to enforce a term of a regulated agreement by—

 

(a) demanding earlier payment of any sum, or

 

(b) recovering possession of any goods or land, or

 

© treating any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred,

 

 

except by or after giving the debtor or hirer not less than seven now 14 I believe days’ notice of intention to do so.

 

(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),

 

 

but so applies notwithstanding that, under the agreement, any party is entitled to terminate it before the end of the period so specified.

 

(3) A notice under subsection (1) is ineffective if not in the prescribed form.

 

(4) Subsection (1) does not prevent a creditor from treating the right to draw on any credit as restricted or deferred and taking such steps as may be necessary to make the restriction or deferment effective.

 

(5) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

 

(6) Subsection (1) does not apply to a right of enforcement arising by reason of any breach by the debtor or hirer of the regulated agreement. Quote:

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

 

(1) The creditor or owner is not entitled to terminate a regulated agreement except by or after giving the debtor or hirer not less than seven days’ also now 14 I believe re 2006 act 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),

 

 

but so applies notwithstanding that, under the agreement, any party is entitled to terminate it before the end of the period so specified.

 

(3) A notice under subsection (1) is ineffective if not in the prescribed form.

 

(4) Subsection (1) does not prevent a creditor from treating the right to draw on any credit as restricted or deferred and taking such steps as may be necessary to make the restriction or deferment effective.

 

(5) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

 

(6) Subsection (1) does not apply to the termination of a regulated agreement by reason of any breach by the debtor or hirer of the agreement.

[toymaker1]

 

76 Duty to give notice before taking certain action

 

(1) The creditor or owner is not entitled to enforce a term of a regulated agreement by—

 

(a) demanding earlier payment of any sum, or

 

(b) recovering possession of any goods or land, or

 

© treating any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred,

 

 

except by or after giving the debtor or hirer not less than seven now 14 I believe days’ notice of intention to do so.

 

(2) Subsection (1) applies only where—

 

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

[/font]

 

 

(4) Subsection (1) does not prevent a creditor from treating the right to draw on any credit as restricted or deferred and taking such steps as may be necessary to make the restriction or deferment effective.

 

 

Quote:

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

 

(1) The creditor or owner is not entitled to terminate a regulated agreement except by or after giving the debtor or hirer not less than seven days’ also now 14 I believe re 2006 act 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

 

(4) Subsection (1) does not prevent a creditor from treating the right to draw on any credit as restricted or deferred and taking such steps as may be necessary to make the restriction or deferment effective.

 

[/font]

 

Thanks Tingy.

I notice that termination under S76 and S98 applies only to agreements where a period for the duration of the agreement is specified in the agreement.

As no period for the duration of the agreement is specified in credit card agreements, it seems to suggest that termination in non-default cases of credit card agreements is not provided for under S76 or S98.

What do you think?

[spamheed]

The document you are looking for is the "Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983", a copy of which can be found here

opens as a pdf file - you might want to look at schedule 1 for clarification on non default cases

 

2004 amendment here

 

opens a pdf file

Edited December 29, 2010 by spamheed
fixed link

[toymaker1]

The document you are looking for is the "Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983", a copy of which can be found here

opens as a pdf file - you might want to look at schedule 1 for clarification on non default cases

 

2004 amendment here

 

opens a pdf file

 

Thanks for that information spamheed.

A major part of my defence will be that Egg were not entitled to terminate my non-defaulted credit card agreement merely by telling me that they were terminating the agreement.

It would assist me in thinking things out if you, or anyone else who wishes, would comment on the following points, which derive from my understanding of termination of credit card agreements in non-default cases:

 

The circumstances in which a debtor is entitled to terminate a credit card agreement are set out in S94 of CCA 1974, which provides that there is no requirement for the debtor to give the creditor a notice in a prescribed form.

The debtor simply gives notice in writing to the creditor and makes payment to the creditor of all amounts payable by the debtor under the agreement.

 

The creditor, on the other hand, if he wishes to terminate a credit card agreement must give the debtor a notice in a prescribed form.

The prescribed forms for termination of agreements by the creditor are precisely set out in the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

My understanding is that the Regulations cover the prescribed form of notice to be given in every case where a creditor wishes to terminate a regulated agreement.

That is to say, I do not consider that there are circumstances, not covered by CCA 1974 or it's associated regulations, in which a creditor can terminate a regulated agreement merely by telling the debtor that the creditor has terminated the agreement.

The Regulations are not called "The Consumer Credit (Enforcement, Default And Some Types of Termination Notices) Regulations" If it were the case that there are circumstances in which a creditor could terminate a credit card agreement without giving a notice in a prescribed form, then it would render the opening statement of CCA 1974 totally pointless. i.e. that it is an Act for the protection of consumers. - where would the protection for the consumer be if, on a whim, a creditor could, for example, phone a creditor up to tell him the contract is terminated?

The creditor is merely one party to the contract, which is intended to be on an equal footing.

 

To get back to the Regulations. They make it clear that there are only three circumstances in which a creditor can become entitled to terminate a regulated agreement. Those circumstances are S76(1), S87(1) and S98(1).

For each of those circumstances there is a separate form of termination notice, set out in detail in Schedules 1, 2 and 3 of the regulations.

In my case, S76(1) and S87(1) do not apply as the creditor did not need to take enforcement action, as the agreement was not in default.

Termination in non-default cases is covered by S98(1), and it's associated prescribed form of termination notice.

But S98(2) makes it clear that S98(1) only applies where a period for the duration of the agreement is specified in the agreement.

i.e. as credit card agreements do not have a period for the duration of the agreement specified in the agreement, S98(1) does not apply to credit card agreements.

As the Regulations cover all the cases in which a creditor can become entitled to terminate a regulated agreement, there is no circumstance other than as set out in the provisions of CCA 1974 and the Regulations in which a creditor can terminate a credit card agreement.

 

Notes on the Consumer Credit Act 1974 Post-Contract Information Requirements, issued by OFT July 2008:

S6.6 The 1974 Act requires service of a notice in a specified form if the creditor wishes to terminate a regulated agreement.

One could say that those OFT guidance notes are not the law, but what they are is accurate information issued by the body which administers the Act and it's associated regulations, and which regulates those who act as providers of credit.

Then there is S140 of CCA 1974, which provides that a creditor must alway act fairly towards the debtor, and in the manner in which it enforces any of it's rights under the agreement. - and the court will decide what is fair.

 

Regards

Edited December 29, 2010 by toymaker1
odd word

[spamheed]

I hate to say it, but IMHO a dodgy or defective or non existent TN, and/or DN will not be enough, no matter how many breaches it/they contain. I know what you are saying, that they had no right to just terminate and should have gone through the correct process, but what if it boils down to the judge asking you if you borrowed the money?

 

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. It has happened all too often that a judge has asked that very question and when you answer truthfully and say "Yes" that's it - you've lost

 

On this forum and on many others, there are scores of cases where the judge has given judgement for the claimant where the defendant had a much stronger defence based on no agreement or even where the debt didn't actually belong to the defendant, judges are now regularly accepting recreated and manufactured agreements in the court and I think unless you had a an incredible stroke of luck with the judge on the day then you would lose.

 

It is only my opinion and I always stand to be corrected, but even if you do rely on the default and termination arguments as a part of your defence - You should still look at the wider picture and not focus on this single area - it is always better to completely destroy every aspect of their claim rather than rely on one area where there is even the slightest doubt - I really believe that you should look at other areas to strengthen your defence.

Edited December 29, 2010 by spamheed

[Jasper1965]

Is there a Cagger out there who knows the prescribed form which a creditor must comply with if he wishes to terminate a credit card agreement in non-default cases.?

 

The reason I am asking is that there are numerous places in CCA 1974 where it says that a notice is ineffective if not in the prescribed form.

I was hoping that someone with knowledge of consumer credit law would be able to say what the prescribed form of termination notice is, or where in CCA or regulations one would find it.

 

 

You need to stop searching the statute databases for this and look a little nearer to home.

 

The terms and conditions of the credit card agreement itself are the place to look for only there can you accurately establish whether the creditors actions were in breach of "The agreement".

 

Assuming they are entitled to terminate the agreement without reason asubject to serving notice, the failure of the DCA to supply the notice of assignment prior to instigating litigation is possibly one of your best lines of defence.

[toymaker1]

I hate to say it, but IMHO a dodgy or defective or non existent TN, and/or DN will not be enough, no matter how many breaches it/they contain. I know what you are saying, that they had no right to just terminate and should have gone through the correct process, but what if it boils down to the judge asking you if you borrowed the money?

 

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. It has happened all too often that a judge has asked that very question and when you answer truthfully and say "Yes" that's it - you've lost

 

On this forum and on many others, there are scores of cases where the judge has given judgement for the claimant where the defendant had a much stronger defence based on no agreement or even where the debt didn't actually belong to the defendant, judges are now regularly accepting recreated and manufactured agreements in the court and I think unless you had a an incredible stroke of luck with the judge on the day then you would lose.

 

It is only my opinion and I always stand to be corrected, but even if you do rely on the default and termination arguments as a part of your defence - You should still look at the wider picture and not focus on this single area - it is always better to completely destroy every aspect of their claim rather than rely on one area where there is even the slightest doubt - I really believe that you should look at other areas to strengthen your defence.

 

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

In response to Egg terminating my undefaulted agreement, which I was paying regularly at Direct debit of £300 per month,I wrote to Egg with an my proposal of how I intended to repay the outstanding debt. (remember, Egg had terminated the contract, so a repayment plan had to be agreed between Egg and myself.)

Egg totally ignored my repayment proposal, which I requested they consider urgently, so that my repayments to Egg need not be interrupted.

It was at that point- about a month latter, that I became aware, after studying CCA, that Egg had terminated my agreement outside provisions of CCA 1974.

I asked Egg to indicate to me which section of CCA provided Egg with legal authority to terminate my agreement.

I consider that to be a reasonable enquiry, to which I consider I am entitled to received a response from Egg, the other party to the contract, and the party who terminated the contract.

I have no problem recognising that I borrowed the money, but that does not give Egg the right to bully me.

I consider that the dispute has moved on into the area of unfair conduct within the meaning of S140.

Egg, and it's solicitors were made well aware by me of the dispute, but ignored me.

They assigned the debt to Cabot who is the claimant.

which should have been answered by Egg.

Egg has never provided substantive answer, so I have not paid any money to Egg until the dispute is resolved.

[toymaker1]

Following up my previous post,

At the allocation hearing the judge made it clear to the claimant that he wanted a witness from egg at the trial.

My feeling is that Egg will not want to appear as a witnessl, as they will be put on the spot.

I had been wondering wether to apply to Add Egg as a party to the proceedings - in addition to the claimant Cabot.

What do you think?

[toymaker1]

The terms and conditions of the credit card agreement itself are the place to look for only there can you accurately establish whether the creditors actions were in breach of "The agreement".

Surely the terms of the agreement are subject to the provisions of CCA 1974?

S173 of CCA says 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 the Act.

The provisions covering termination are set out in S76, S87 and S98 of the Act. The prescribed forms for termination notices are specified in Consumer Credit (Enforcement, Default and Termination Notices) Regulations.

As I understand it, there is no provision in CCA or the Regulations for a creditor to terminate an agreement outside the provisions of S76, S87 S98 and the Regulations just by telling the debtor it is terminated. - therefore a term in the agreement saying that is void.

As I understand it, no notice can be given to a debtor which is not in a prescribed form.

[Jasper1965]

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.

[Tingy]

Toymaker - I honestly admire the huge amount of work you've put in here, but I'm afraid to say I have to agree with Jasper here. You need I think to look carefully at the terms and conditions of the actual agreement itself and have a serious think.