sebastian davey:

Thanks for that Basa, I think I get the drift but lets see!

1/ If, following a CCA request, the CC doesn't supply anything, there's not a lot you can challenge them on apart from just sitting tight and sending them away with a flea in the ear and no payment. However, they are likely to register a default which then becomes nigh on impossible to remove and then screws up your credit file for 6 years.

Well with no CCA at all you could take it to court to have the DN removed. Unfortunately I do not know of any successful cases, but with no agreement it is likely the CCC would cave at the last minute and agree to removal. However I am also convinced there is an underground reporting system for poor debtors even where defaults cannot be registered.

sebastian davey:2/ If they have supplied anything then you can challenge this and get it declared unenforceable. I'm guessing that they can still register a DN which again is difficult to remove. If you can get your CCA declared "unenforceable" it would be at this point you might/could be able to claim back all the interest paid? However, I agree with you the benefit of not paying them anymore is more than recompense, I believe they have had more than their monies worth out of me and probably paid back the original amount ten times over.

Removing DNs is incredibly difficult. The ICO and FOS are useless. Both assume where there is any relationship AT ALL processing is 'legal'.

It would be pushing the envelope a lot to claim back interest. Whilst on the face of it it may be justifiable I don't think the judiciary would like to go there.

sebastian davey:I've been following you thread on CAG where you re going to court with a CC based around amongst other things the removal of DN. Has this happened? Do you know of other ways/actions I could take to attack the DN I have? I am going to write to the CRA and to the Data Commissioner but who else can I write to to complain? The DN I have has been registered whilst my request for CCA was still outstanding and even though the account was in breech at the time I also could not remedy the DN whilst that request was outstanding.

I got a default judgement in this case, but a hearing for a set-aside is due next week. The judgement unfortunately didn't rule on enforceability or DN removal.

I am hoping to 'encourage' the judge to hear both those matters at the hearing, but to be honest I'm not sure if it is allowable under the court procedures.

sebastian davey:Any pointers from all would be helpful.

On a general note I am stunned at the tactics of some of these companies. I have received text messages, calls from mobile numbers and also I've taken calls from MBNA and they have launched into me without even going through any security questions to check they were talking to the right person. All this seems to be contrary to advice about "never give out your details" and "beware scams that are just after your details" yet the CC's are actively ignoring this advice when it comes to contacting customers. I am also shocked at their total belligerence not to respond to your letters. I have sent MBNA on average 2 letters a month since February and they haven't responded to most of them in particular nothing from within the last 3 months, yet they have managed to send me 10 letters in a matter of 14 days all about my account!! Surely the FSA have got to step in at some point and shake this industry up and get the banks to act accordingly to stop treating customers so dismissively.

The only advice is, don't be surprised at anything these scumpanies get up to. Be SURE of your case (research and more research), oh and NEVER talk to a creditor or DCA on the phone.

Thanks for that Basa, I think I get the drift but lets see!

1/ If, following a CCA request, the CC doesn't supply anything, there's not a lot you can challenge them on apart from just sitting tight and sending them away with a flea in the ear and no payment. However, they are likely to register a default which then becomes nigh on impossible to remove and then screws up your credit file for 6 years.

2/ If they have supplied anything then you can challenge this and get it declared unenforceable. I'm guessing that they can still register a DN which again is difficult to remove. If you can get your CCA declared "unenforceable" it would be at this point you might/could be able to claim back all the interest paid? However, I agree with you the benefit of not paying them anymore is more than recompense, I believe they have had more than their monies worth out of me and probably paid back the original amount ten times over.

I've been following you thread on CAG where you re going to court with a CC based around amongst other things the removal of DN. Has this happened? Do you know of other ways/actions I could take to attack the DN I have? I am going to write to the CRA and to the Data Commissioner but who else can I write to to complain? The DN I have has been registered whilst my request for CCA was still outstanding and even though the account was in breech at the time I also could not remedy the DN whilst that request was outstanding.

Any pointers from all would be helpful.

On a general note I am stunned at the tactics of some of these companies. I have received text messages, calls from mobile numbers and also I've taken calls from MBNA and they have launched into me without even going through any security questions to check they were talking to the right person. All this seems to be contrary to advice about "never give out your details" and "beware scams that are just after your details" yet the CC's are actively ignoring this advice when it comes to contacting customers. I am also shocked at their total belligerence not to respond to your letters. I have sent MBNA on average 2 letters a month since February and they haven't responded to most of them in particular nothing from within the last 3 months, yet they have managed to send me 10 letters in a matter of 14 days all about my account!! Surely the FSA have got to step in at some point and shake this industry up and get the banks to act accordingly to stop treating customers so dismissively.

Levy of interest and fees does not constitute ‘enforcement’ in any event, and following a recent case (McGuffick v RBS) enforcement in cases fought on non compliance with s.77-79 only begins at the courtroom door. To me this is only common sense, since the creditor could find an enforceable agreement at any time.

I would only ever dispute unenforceability of a supplied agreement under s.60/61/127.

Unfortunately, in the current battle between creditors and debtors there is no known remedy to default notices short of injunction. In most unenforceable cases this is their only way to ‘punish’ you!

You need to be clever in the arena of absence of CCA. If the creditor has sent you anything at all in response to a s.77-79 request, then under s172(1) they have supplied a CCA. This short circuits the above case. You can then challenge the agreement under s.60/61/127, and ask for relief under s142.

You have a big decision to make. Leave things as they are (i.e. make no further payments) and just bat back all demands and threats citing no enforceable agreement, or instigate legal proceedings to declare the agreements unenforceable and ask for removal of damaging subject data (DNs).

Be advised the latter route is hard and costly and unless you are confident in preparing your case I would leave it to solicitors experienced in this field.

I wouldn't bother (at this stage) to attempt to sue for return of interest or charges. The relief from repayment, to my mind, is compensation enough.

Advice from all would be very helpful but a quick summary of Egg and Marbles.

Egg refuse to acknowledge or respond to any of my correspondence where I am offering a settlement. Instead they have passed this to a solicitor who have written to me. I have replied stating my case and requesting a response. Marbles, who admit having no CCA, have also ignored my letters and offers of settlement and passed my account to Robinson Way. They have called me twice a day for the last two weeks plus several letters, the calls have stopped since I sent them a letter telling them Marbles had no CCA.

I was reading a thread posted by Basa about "Making a Claim", am I right in that any charges of interest and late payment fees constitutes enforcement? And in the absence of a CCA you could go to court to claim back any interest paid etc? If I'm right I was thinking of writing to those that have ignored my "without prejudice" offers and don't have a CCA with the threat of going to court to claim these charges back. Any thoughts?

NatWest who have only sent me my original application form are playing hardball and after just two months of non-payment I have received a letter today titled "Default Notice" giving me 17 days to pay up all the arrears or face having a DN placed on my credit file. I already have DN on my file registered by Egg and this is giving me some considerable problems as I run my own business ( even though it's Ltd it still comes into play) and currently looking to move house. Also the registering of the DN is counter productive, as it makes getting a remortgage to raise any money to settle debts nigh on impossible! Anyway I ramble on, my question is can anyone advise me what to do next with Natwest? I really don't want another DN as this would screw my credit file up even more but I'm confident that all they have sent me is an application form and not the CCA. I'm aware that once on DN's are very difficult to remove, as I'm experiencing with Egg.

Advice please?

You need to advise Egg that you dispute the debt and need to enter into negotiations about a very much reduced full & final. You can hint at the reasons you dispute the debt (i.e. the agreement is unenforceable), but do not give chapter and verse. They will wriggle and squirm but you will not get the default removed unless this goes to court (which I doubt).

Things may change once the test cases in the Commercial Court are judged.

Unforunately I am not at my home PC at the moment and can't give the CAG link, but the thread is (from memory) entitled 'What I think is wrong with the egg agreement' (or something similar).

It is extremely long but is well worth an hours read.

Basa.

Wow! Very thorough I thank you indeed. I was fully expecting the Egg agreement to stand up. I have been having a serious battle with DLC ( their debt agency ) and Egg to get my default removed. They have absolutely refused to do so. DLC have told me they are closing their file and sending back to Egg as they can't get any further forward as I am adamant that any settlement agreement requires the default to be removed but they refuse point blank. Unless they agree I've got nothing to loose and £0000's to gain by pursuing an unenforceable agreement.

Do you have the CAG link for the victorious Egg case?

Cheers

Egg arguments:

1. The terms ‘Approved’ and ‘Individual’ Limit are not sufficient to describe the prescribed term ‘Credit’ limit. These terms could lead the lay reader to confusion as to what these terms relate and as to what the ‘credit’ limit is (or how it may be determined). The term ‘credit’ is nowhere specifically stated or referenced in the financial terms.

Section 10 of the Act clearly defines what is meant by 'credit' and 'credit limit' but does not mention the terms 'approved' or 'individual' limits in its definitions. The syntax of the terms ‘approved’ and ‘individual’ in the agreement gives no idea as to their meaning. The terms 'approved' and 'individual' are not synonymous with ‘credit’ and could apply to any number of items related to the account. The lay reader may not reasonably identify what the 'credit' limit for the account is.

2. Being a multiple agreement (restricted & unrestricted use) there should be prescribed terms for each type of agreement (purchases & cash advances). There is no separate term for the interest rate for cash advances.

(It is possible that Egg might seek to argue that the word "otherwise" in para 4.1 (in a series of paragraphs, mark you, in which the numbering starts at 3!) was intended to cover cash advances, on the basis that it encompasses all transactions other than purchases and transfers completed before the cut-off date. Indeed, it is ambiguous, since the word "otherwise" in the context of para 4.1 can easily be read so as to limit its scope simply to purchases and transfers other than those completed before the cut off date and not also to include cash advances and credit card cheques. So, even if Egg do try to argue their way out of there being no interest rate for cash advances, I don't think it should succeed.)

3. Schedule 1(22) of the Act requires that regulated agreements should provide “an indication of any charges payable under the agreement to the creditor upon failure by the debtor or a relative of his to do or refrain from doing anything which he is required to do or refrain from doing, as the case may be”. This information for ‘charges on default’ is not directly shown nor referred to in the agreement, but is clearly applicable as indicated in a separate document entitled ‘Conditions’ which is referred to in an accompanying covering letter sent with the agreement and conditions.

4. The agreement fails to set out a term as required by schedule 1 Para 19 Consumer Credit Agreement Regulations 1983 which requires “A statement indicating the circumstances in which any variation referred to in paragraph 18 above may occur and, where the information is ascertainable at the time at which the document referred to in section 61(1) of the Act is presented or sent to the debtor for signature, the time at which any such variation may occur”.

It should be noted that in the agreement there are variations in APR permissible and therefore in accordance with Regulation 2(4) Consumer Credit Agreement Regulations 1983 the statutory information set out within Para 3-19 of schedule 1 should be shown as a whole and not interspersed with other information.

5. In a similar vein, the prescribed term relating to payments cannot be understood without reference to terms defined in a separate document: i.e. Revolving Balance, Transferred Balance and Payment Date.

Hope this helps!!

sebastian davey:

Basa

Thanks for the reply very informative. Do you have a view on the Egg agreement ( link posted in earlier post) ?

Page 1 : http://i781.photobucket.com/albums/yy92/sebastiandavey/egg2.jpg

Page 2 : http://i781.photobucket.com/albums/yy92/sebastiandavey/egg1.jpg

That is the typical Egg agreement of the time. Identical to mine and I believe (as do many others) it is unenforceable. (So much so that one member of the CAG has won his case against Egg with this agreement.)

Give me some time and I will post what are regarded as the fatal errors in it.

Basa

Thanks for the reply very informative. Do you have a view on the Egg agreement ( link posted in earlier post) ?

Page 1 : http://i781.photobucket.com/albums/yy92/sebastiandavey/egg2.jpg

Page 2 : http://i781.photobucket.com/albums/yy92/sebastiandavey/egg1.jpg

seb

The NatWest CCA is as you observe nothing more than an application form and as it stands in isolation is unenforceable. It contains none of the prescribed terms. Unless NatWest could prove it was accompanied by another page of prescribed terms such that it formed one contiguous document they are screwed.

Unfortunately the MBNA is an enforceable document as it appears the prescribed terms are present in the left hand panel. It appears to be a genuine document despite MBNA having a reputation [disclaimer] *allegedly* [/disclaimer] for perhaps 'manipulating' some agreements and applications to appear enforceable.

The issue of defaults and their remedies is a thorny one that all who challenge credit agreements face.

The default notice should have included an amount and time limit to pay the arrears at which point the default is remedied and does not appear on any credit reference files. Presumably you missed the deadline and the default would then be deemed to be correctly recorded.

You are correct that after the 12+2 days time limit for a s.78 request the creditor is technically in default and cannot enforce the debt. However it would be a brave man who took that argument into court.

At the end of the day if at any point you have signed any document for this account containing a reference to processing data with credit reference agencies, whether it forms part of an enforeceable agreement or not, I fear the default will prove very difficult if not impossible to remove.

I hold this argument that where an agreement is proven invalid it renders any terms of repayment also invalid and thus late or non payment cannot be a default. However I have given up banging my head against the brick wall that is the ICO arguing this and they refuse to agree.

I have a situation where the creditor has no original agreement documentation whatsoever but issues regular statements and requests for payment. The ICO insist this is enough to prove agreement to process!!

Such is the weight given to banks and their cronies to throw their dummies in the face of us belligerent debtors.

There is case law that supports yours (and my) views in Durkin v DSG Retail, but I have found that even where a creditor has removed a default it is replaced with a 'no information' marker which is obviously a warning signal to other creditors, but probably not challengeable.

Could anyone give me some specific advice on fighting a default notice. I requested a copy of my CCA in February and nothing arrived until August. After two months I sent a letter saying that the account was in dispute and stopped making payments in April. The CC then put a default on my credit file at the beggining of June well before any so called agreement was sent. As I understand it, I was fully entitled to stop make payments in the absence of any CCA. Now that they have produced what they say is my CCA ( I don't think it is but am not qualified to judge whether it is or not ) I have been in touch with the the debt agency handling it to discuss resuming payments whilst I check out the CCA they sent. I called them this week I stated that whatever agreement we made it was not negotiable that the default had to be removed from my credit file as they had incorrectly applied it. The debt agency immediately offered a full and final settlement of 25% less of the total balance. I made an offer of full and final settlement of a much lower figure or to resume payments as I was making before April. On all accounts the CC refused to remove the default notice.

I feel extremely hard don by that I am willing to come to a resumption of payments or full and final settlement but the CC are refusing to remove the default notice even though it was placed on my credit file whilst the account was in dispute and my CCA requestremained unsatisfied.

What I'd like to know is what to do next? Who do I complain to and more importantly as they broke the consumer credit act how can I rectify this? I'm pulling my hair out on this one as the default has trashed my credit rating which has serious consequences for me as I use finance to run my business and this is already starting to have an effect. I feel this has been so unfair, I made my legal right to request my CCA , they failed to deliver for 6 months but I get penalised. Please any help would be much appreciated.

Mod - Related post moved to relevant thread. New posts do not need to be made all over the forum when they can receive exactly the same attention in the original existing thread, assuming anyone is able to provide the advice.

I've read lots of postings on this site about whether what the CC's have sent is a true copy of an agreement or an application form. I'm yet to see what looks like a real true copy of a CCA, I requested them from four CC's in February and what I've received appears to be application forms. It begs the question why have the CC's kept copies of the application and not the CCA. Is it possible that they didn't realise at the time they should be keeping this stuff or was it that they were so laxed they just didn't bother. I have read with great interest over this weekend the HBOS v Mitchell case which was based around this central point of an application or agreement. But not being a legal person it's all to easy to think "me to" and believe that what I've received is exactly that, application forms and not CCA.

I would greatly appreciate it if some of the more qualified contributors to this forum would take a look at the two documents I've uploaded that I received from NatWest and MBNA. The links are ;

NatWest Doc. http://i781.photobucket.com/albums/yy92/sebastiandavey/Natwest.jpg

MBNA Doc. http://i781.photobucket.com/albums/yy92/sebastiandavey/MBNA.jpg

They both clearly state "Application" at the top and I have blanked out the personal details that were all hand written. Despite some of the form being illegible the NatWest doc has written down one side "moisten along this side and ....." If that's not a postal application form I don't know what is.

Any comments or guidance on these would be appreciated.

Thanks for your reply Basa. I've posted the paperwork Egg has sent me on photobucket ad the two pages can be viewed at the following links. Sorry bit of a novice at this so couldn't figure out how post as single link.

Page 1 : http://i781.photobucket.com/albums/yy92/sebastiandavey/egg2.jpg

Page 2 : http://i781.photobucket.com/albums/yy92/sebastiandavey/egg1.jpg

I understand what you say about the fact that they have remedied there part by sending me the "agreement". My point is that they placed the default on 2 months before they provided the paperwork. Having followed postings on this site as I understand it during the period whereby the request for a CCA remains outstanding and over the 12+2 days they cannot, amongst other things, register a default. As they hadn't provided me with the agreement that I requested in February I had stopped paying them. Which again is what I'm entitled to do after the 12+2 days. I'm no legal bod and have only gained this information by reading online on sites such as this. If I've got this wrong please tell me?

Your thoughts on the actual agreement that Egg have sent me would be really great. Might post my other "agreements" for comments now I've got the hang of photobucket!

You seem to be arguing pedantics here. They are correct that the ‘offence’ bit is abolished and again correct in that the default of not responding in 12 days (+2 days postage allowance) was remedied by responding (eventually).

Technically you were in a default situation (assuming you missed payments) whether or not they were also in default at the time. I don’t think their default (now remedied) invalidates your default.

There is a difference between passing on (selling) the debt and asking a third party to act for the creditor. It is not clear whether the DCA owns the debt or is just attempting collection on behalf of the creditor. Also in it is unclear (in that I know of no case law) whether adding interest or issuing default notices constitute enforcement, which is the only constraint within the Act for a non compliance with s.78(6).

Without sight of the ‘agreement’ I can’t really comment on its enforceability, but it is nonsense to say the prescribed terms can be on a separate piece of paper from the signature, unless there is a clear indication the page containing the terms must have been present and part of the agreement at the time of signing.

Direct Legal & Collections have sent me a reply to my "without prejudice" letter to Egg. At last a reply within the requsted time of 14 days, the first time in 7 months of correspondence! This is how their response goes;

Dear Mr xxxxxxx

Acount number xxxxxxxxxxx Egg Banking PLC

Thank you for your letter dated the 15 September 2009 regarding the above account. I can confirm and advise the following:

1. It is no longer an offence not to supply copy documents within the timescale of one month. The offence was abolished in Schedule 2 Part 1 paragraph 20 of the Consumer Protection from Unfair Regulations 2008.

2. Technically we were in breach of the Consumer Credit Act 1974 in not having provided the copyof your original agreement, however that breach was remedied by sending to document to you.

3. The document sent is a true copy of your original signed agreement therefore we have complied with the Consumer Credit Act 1974. As the agreement is not a fixed term agreement the prescribed terms are not required to be on the face of the agrement but are detailed in the terms & conditions. We enclose a copy of a standard set of terms & conditions for your reference.

4. We have referred back to our client Egg Banking Plc in relation to your utility bill and have asked for their confirmation that this has been returned to you.

5. With reference to your offer of £xxxx in full and final settlement, this has been referred to our collections team who advise that they are unable to accept your offer however, if you contact them on 01280 846623 they will be happy to discuss the options open to you.

Yours sincerely

A E Locke

Director & Data Controller

There are no typo's on that it is exactly how they sent it to me. The other thing is that DLC are a third party so why do they refer, in point 2, " .... we were in breach...." Shouldn't that be ".... our client was in breach...." . Ok I might need a little help here so here's how I read it;

1. I did put in my letter about the initial 12 days and then a further 30 days but having read this forum I think the correct timescale is12 + 2 days. Is that correct? Technically they are correct but they make it sound like the whole time limit thing was abolished.

2. They admit they breached the Consumer Crdit Act but what they heck we put a default notice on you anyway! How do I now get the default removed now they've admitted they were in breach? At the time they registered the default I had notreceived any paperwork from them, application or agreement. Whilst the CCA request remained outstanding over the statutory period they can't pass to a third party, add interest or register defaults, I am n ot obliged to make payments whilst the account is i dispute, am I correct on that?

3. Can someone explain this one? Are they saying that the original CCA didn't have to have all the terms on it?

4. Last I'll see of that then!

5. Not surprising but who are the collections team DLC or Egg?

I'm going to scan the "CCA" they sent me and post a link on here so someone can advise what I'm looking at. Can anyone advise what letter to send in response?