Tobes v Egg

[Tobes]

Great site, great people

 

I understand that penalty charges are wrong, but I'm not sure what I should claim. Due to various reasons I have experienced financial difficulties over the years, and am now a defaultee with Egg's credit card. I've had charges over a number of years and now charges because of going over the limit. I still owe a balance (I of course accept that I owe the money I've actually spent) and it seems to have been frozen whilst it is sent out to unpleasant debt companies.

 

Because I haven't paid the the balance, having just paid minimum payments or partial payments, and have a balance outstanding, have I actually any claim? I'm thinking that it could be said that the charges form part of the monet outstanding that I have not paid...Would the charges be removed from the balance, reducing the total, or would you actually be sent a payment if successful? this point is confusing me!

 

Really grateful for any help on this - I looked at the FAQ but I think it is either too simple to be included or I am blind :o

[Seminole]

You will not receive a cheque unless you have actually paid the charges! If you owe £1,000 and this includes charges of £500 then this £500 plus any interest that you've accrued on it should be offset against the balance. In other words it would reduce the balance of the debt. However, if in this case, the charges were £1,200 then you should get £200 plus some interest back.

[Tobes]

You will not receive a cheque unless you have actually paid the charges! If you owe £1,000 and this includes charges of £500 then this £500 plus any interest that you've accrued on it should be offset against the balance. In other words it would reduce the balance of the debt. However, if in this case, the charges were £1,200 then you should get £200 plus some interest back.

 

Makes sense will probably go ahead with making a claim then

[Tobes]

Makes sense will probably go ahead with making a claim then

 

ooooh, what if the reduction takes the total to less than the limit - could i ask for defaults to be expunged, or as the penalties are made over time are they not considered to be the reason?

[Seminole]

ooooh, what if the reduction takes the total to less than the limit - could i ask for defaults to be expunged, or as the penalties are made over time are they not considered to be the reason?

 

Possibly if the deduction of the charges meant that you would not have been in default at the time they issued the default notice. Do a search on "defaults" as this has been discussed quite a lot here. In the meantime, follow the step by step guide in the FAQs to get the ball rolling.

[Tobes]

Just sent my initial letter requesting a refund of charges - sent it by Special Delivery and it cost £4.10

 

I didn't do a DPA, I just phoned up Egg and asked for all my statements; the first guy hung up but the second person said 'ok' and I received them a couple of days later, no £10, yay

 

Have also sent a DPA to HSBC through my local former branch, so have two claims, and I have another card with Egg so in the end it might get to three.

 

Will update when I need to

[Guest Lueeze]

Good Luck!

 

Lou x

[Tobes]

Thanks

 

 

Received a reply today, just a standard 'we have recieved your complaint, this is how long it could take blah blah'

[Tobes]

Received a proper response today, but it was just quoting terms and conditions at me. It states that they will not refund the charges so I am going to immediately issue the LBA instead of waiting any longer.

Wish me luck!!

[Tobes]

Hi guys, I'm trying to write my claim right now to send via Moneyclaim which I've said I'll do on Monday morning if I'm not contacted with a satisfactory offer...So can anyone offer me any advice on what to say on my claim? I've found the Which? document which details what you can say in three paragraphs but I was wondering if there are any examples anywhere on this site or if there is just stuff I MUST include - I have seen the Guidance section and it says the two arguments the banks can use and that I must argue against both, but can't find anything else...Just wondering if I'm missing something or if at this point we must do it for ourselves!

[barracad]

Hi guys, I'm trying to write my claim right now to send via Moneyclaim which I've said I'll do on Monday morning if I'm not contacted with a satisfactory offer...So can anyone offer me any advice on what to say on my claim? I've found the Which? document which details what you can say in three paragraphs but I was wondering if there are any examples anywhere on this site or if there is just stuff I MUST include - I have seen the Guidance section and it says the two arguments the banks can use and that I must argue against both, but can't find anything else...Just wondering if I'm missing something or if at this point we must do it for ourselves!

 

In the library section there is an example Particulars of Claim to use.

[Tobes]

oh damnit, thank you :o

[Tobes]

Well, claim issued via Moneyclaim today, so now just waiting for Egg's response etc etc wish me luck

[Tobes]

I signed into moneyclaim and my claim made on the 5th has already been acknowledged (I assume by Egg!?) - though that might be because I sent them a secure message saying oi, biatches, I'm suing you...But would the speed hint that they did it by using moneyclaim as well?

[hondamad21]

Hi Tobes,

 

Just wanted to wish you luck!!!

 

hondamad21:)

[Tobes]

Cheers dude, you too

[Tobes]

Received a thingy today stating that Egg intend to defend my claim

[Tobes]

ok I have now received Egg's defence, and they have also submitted a counterclaim, so this is getting quite interesting now.

 

Do you guys think this will actually get to a courtroom?

 

I would really appreciate some help in filling out the allocation questionnaire!

 

Here it is in full:

 

1. The Claimant entered into an Egg credit card agreement withthe Defendant on 31 January 2001 (the "Agreement"). The Agreement was terminated due to the Claimant's default under the Agreement and the Claimant's debt to the Defendant was passed to a debt collection agency in June 2005. As at the date of this defence, the Claimant owes £1440.25 to the Defendant.

 

2. It is admitted that charges were added to the Claimant's Egg credit card during the course of the Agreement. Each charge was made pursuant to clause 7.1 of the Agreement as a result of insufficient funds being available from the Claimant's designated current account to cover the amount of the direct debit payment due on the Egg card and as a result of the Claimant exceeding his credit limit. Clause 7.1 clearly states:

 

"If you break the terms of this Agreement we may charge you the following, where relevant, to cover the additional cost to us:

 

£20 each month you go over the Credit Limit...

£20 if you do not keep up payments on the account..."

 

The Claimant failed to make payments on his credit card on 5 separate occasions and exceeded his credit limit on 24 occasions and charges were added to his credit card accordingly.

 

3. It is denied that the charges are "punitive" as alleged. The Defendant recognises that customers, such as the Claimant, sometimes exceed their credit limits and/or fail to make or are late in paying the required repayments and the Defendant therefore puts in place systems and processes to deal with the same. Such systems and processes included the use of computers, staff and other necessary overheads. The charges set out in Condition 7 of the Agreement are calculated by taking into account the total costs incurred by the Defendant in maintaining those systems and processes and the estimated number of customers (such as the Claimant) who will exceed their credit limits and/or fail to make or are late in paying the required payments. The Defendant avers therefore that the amount of the chargesapplied under Condition 7 represents a genuine pre-estimate of the loss and expense caused to the Defendant in respect of such customers exceeding their credit limits and/or failing to make or being late in paying the required repayments.

 

4. Further the Defendant takes steps to try to ensure that customers such as the Claimant do not incur the charges set out in Condition 7. For example, the conditions of the Agreement required the Claimaint to have a direct debit in place to make his monthly repayments. This was done to ensure (as far as possible) that the Claimant would not fail to make his monthly repayments or make such repayments late and thus avoid charges under Condition 7. Despite these steps the Claimant failed to make his repayments on no less that five separate occasions. With respect to observance of his credit limit, the Claimant was able to view his outstanding balance 24 hours a day on the Defendant's website and was thus able to monitor his spending to ensure he did not exceed his credit limit (and thereby avoid any charges under Condition 7). Nonetheless the Claimant exceeded his credit limit on no less than 24 separate occasions.

 

5. Accordingly, it is denied that the charges are unenforeable at common law.

 

6. Further on in the alternative, the Claimant has paid the default charges levied pursuant to condition 7 of the Agreement without demur or complaint on no less than 29 separate occasions over a period of four years: in the premises, the Defendant avers that Claimant is estopped from claiming that the said charges should be reversed.

 

 

Counterclaim:

 

7. In the event that the Court finds that the default charges levied on on the Claimant do constitute an unfair penalty and are thus unenforceable, the Defendant counterclaims for the actual cost to the Defendant of dealing with the Claimant's breach of contract in exceeding his credit limit and failing to make his repayments, such costs to be assessed by the Court.

 

8. The Defendant counterclaims further for all and ny other sums (£1440.25 to date) which may be due and payable by the Claimant to the Defendant as at the date of judgement.

 

Signed Dave St Clare Nelson

Legal Counsel

[Tobes]

Duplicate - sorry

[Tobes]

Do I need to file a defence for Egg's counterclaim against me? If anyone with experience of this stage could look at my Egg thread I'd be very grateful!

 

cheers

[Tobes]

Whichever mod moved this - I put the above post in the general thread because I wanted a general view on claim procedure!!

[Tobes]

Hi - firstly, PLEASE MODS, do not move this, this is a general query!!

 

 

If a bank were to ask as part of its defence/counterclaim for the 'actual cost to the Defendant of dealing with the Claimant's breach of contract in exceeding his credit limit and failing to make his repayments, such costs to be assessed by the Court', would it not then have to provide some kind of evidence as to the costs it bears, or calculations as to true costs?

 

Would that not be a possible weakness, something the banks/CC companies would not want to happen in court?

 

Cheers

[Tobes]

Also, if a judge were to find in favour of the Claimant, i.e. one of us, would he/she then decide that the Claimant should pay true costs, and do you guys think that's fair? I suppose it is, because that's our whole agreement - that the charges and penalties because they're not a true cost.

[alanfromderby]

I am aware that Abbey use this in their latest defence, and yes you are correct. It is absolute twaddle and my view is that it is aimed more at getting people to settle for a percentage - rather than something that they would wish to argue in court.

[alanfromderby]

Also, if a judge were to find in favour of the Claimant, i.e. one of us, would he/she then decide that the Claimant should pay true costs, and do you guys think that's fair? I suppose it is, because that's our whole agreement - that the charges and penalties because they're not a true cost.

 

No, the whole charge would be disallowed.

 

However, if the bank was to go away, and then ask you for a charge that was reasonable, along with proof that they have been put to that expense, then I believe that you would have to pay it.