Fos ruled in eggs favour over charges help grealty appreciated on what to do next

never-in-doubt

Premier wrote: »

Why? They don't need to.

http://www.moneysavingexpert.com/news/loans/2009/12/high-court-ends-debt-avoidance-loophole

Ermmm, actually yes they do need to! :rotfl: :rotfl:

janey17

Sorry for the delay in posting had internet connection problems.

Thank you to everyone so far for you advice/suggestions. I am still pondering asking this to be referred to the Ombudsman as it says in the letter.

I too am confused as I have had £12 charges refunded from even Capital 1, yet the £16 charges are fair? The letter quoted 2004 to 2006 but nothing about the costs from then on.

The situation just snowballed.

Mnay thanks once again

Premier_2

janey17 wrote: »

...I am still pondering asking this to be referred to the Ombudsman as it says in the letter. ...

I thought you said you had already done that? :huh: :cool:

janey17 wrote: »

... We took this to the FOS in February after Egg would not budge on their £16 charges and did not expect to gain a decision so soon.

Received a letter yesterday from FOS quoting the OFT report in April 2006 who did not take any action against Egg. ...

dunstonh

Ok, the "loophole" that you mention HAS NOT BEEN CLOSED - It cannot be closed, because it is not a bloody loophole in the first place! You're taking somthing that a MSE reporter quoted as saying, as being gospel... No offence to MSE Guy but I told him at the time and repeat it now, that article is misleading and incorrect!

It wasnt a loophole in that respect. It was something the claims companies thought they could use to get the agreements made unenforceable. The court case settled that they didnt need to supply the original agreement and that basically dashed the hopes of the claims companies for getting credit made unenforceable easily. That is not misleading or incorrect.

A lender MUST send a true copy of the CCA encompassing the prescribed terms, signed by both with the debtors full address before they can take any formal (court) action.

sections 77-79 of the CCA allows a consumer to request a 'true copy' of their agreement. The High Court ruled that a true copy does not have to be a photocopy or an exact copy of the original. The lender is allowed to provide a reconstituted agreement, as long as that version is accurate and contains all the original information apart from the few exceptions that the law allows (which include the signature, signature box and date of signature).

The guidance also makes it clear that if a lender cannot comply with the sections - making an agreement unenforceable - then it is restricted in the debt collection activities it can undertake. The OFT considers it would be wrong to threaten court action if the lender knows that it is not possible.

The OFT has made it clear that 'Unenforceable' does not mean that an individual’s debt is wiped out. Any outstanding debt is still owed, but there are some consequences for the lender’s ability to enforce the debt, but they can:

· request payment
· issue a default notice
· pass details of the default to a credit reference agency (e.g. Equifax, Experian or Callcredit)
· pass the individual’s information onto a debt collector

Ermmm, actually yes they do need to! :rotfl: :rotfl:

No they do not.

The poster said "Was wondering if egg had supplied a genuine signed copy of the original credit agreement?"

They are not required to supply a genuine signed copy of the original credit agreement. It can be a true copy.

never-in-doubt

dunstonh wrote: »

The court case settled that they didnt need to supply the original agreement and that basically dashed the hopes of the claims companies for getting credit made unenforceable easily. That is not misleading or incorrect.

No, you're confusing fact with fiction here (again!)

What you fail to grasp here is that a true copy, whilst it may be reconstituted, will not stand up in court because it is still the lenders prerogative to prove that the agreement was properly executed. How can they confirm this with a recon? Point here is that nobody has taken the test since the Carey verdict, however that should not sway your thoughts from the facts....

See here for the judgments in full: McGuffick v RBS & Carey v HSBC cases However I have condensed this into manageable bits for people that struggle with facts, like you:

a.1) - McGuffick v RBS - Case & Judgment Breakdown
a.2) -Carey v HSBC - Case & Judgment Breakdown


Pay attention to my note below:

So, what does all the above mean, in laymans? Ok, quite simply the lender must provide you with a copy of the agreement whether it be the original or a recon, the details can be used from other records to create the recon so long as it does not try and mislead you in any way, or add/omit details that were not present on the original. Part of this means yours and the lenders name and address must be present. The name and address must be those at the time the agreement was taken out, it can obtain such details from other sources other than the original (i.e. other accounts held with the bank etc). If an agreement has been varied, the lender must supply a copy agreement for the original account and as currently stands, since the variation. If a creditor has breached s.78, it does not give rise to claim an unfair relationship however the court has jurisdiction (i.e the final say) on whether an account will be deemed unenforceable and whether such a declaration will be forthcoming based solely on that particular case.

It should also be noted that this "test case" was paramount for a pre-determined set of rules, which is highlighted in the relevant sections above, entitled Para 173 & Para 177 - basically, if your circumstances do not match those mentioned then this judgment does not matter, being it was judged soley on those pre-determined rules.

Each specific case can be taken to court allowing a judge the opportunity to hear your case, albeit the above judgment may well be used in certain areas of your claim. However this should not put you off, if your case is different to the material facts mentioned above.

Remember at the top of this post I quoted that the Judge was basing his findings on his own knowledge and was not trying to find solution or clarity for the whole unenforceability spectrum. This means he only made judgment on the facts given to him and these can be argued, repealed and appealed as cases and time goes by.

zppp

http://news.bbc.co.uk/1/hi/business/8393768.stm

never-in-doubt

zppp wrote: »

http://news.bbc.co.uk/1/hi/business/8393768.stm

That's from the BBC - also old news and similar to the other stories, incorrect in the main! It does confirm one thing which was that a lender cannot say it is enforceable when they know it is not, i.e. fabricate an agreement to then tell you they have the original....

This amazing little fact from the case should help:

never-in-doubt wrote: »

Parameters of the Case:
The judge made a couple of points at the start of the hearing, mainly relating to what he would and would not be dealing with. The main points are as follows:

a) This was not to be a test case because the claimant accepts that the agreement was valid and enforceable, furthermore once the bank provided the missing signed statement of account as requested under s.77 this would render enforceability again;
b) This was to be a case of temporary or redeemable unenforceability concerned only with s.77 of the Act, in that it differs from other factual arguments where unenforceability can be said to be permanent or irredeemable (where the agreement is improperly executed only a court can make an order for enforceability - i.e. s.65(1) of the Act).

zppp

never-in-doubt wrote: »

That's from the BBC - also old news and similar to the other stories, incorrect in the main! It does confirm one thing which was that a lender cannot say it is enforceable when they know it is not, i.e. fabricate an agreement to then tell you they have the original....

This amazing little fact from the case should help:

[/INDENT]

http://www.oft.gov.uk/shared_oft/consultations/OFT1175con.pdf

Well, actually this is all in the OFT guidance, published in January. It states that in their interpretaton as per Carey v HSBC Bank PLC, a reconstituted agreement is acceptable for the reasons they discuss.

never-in-doubt

zppp wrote: »

http://www.oft.gov.uk/shared_oft/consultations/OFT1175con.pdf

Well, actually this is all in the OFT guidance, published in January. It states that in their interpretaton as per Carey v HSBC Bank PLC, a reconstituted agreement is acceptable for the reasons they discuss.

The OFT do not get involved in cases of unenforceability - it is for a court to decide!! LOL - as I say, you need to learn more than just one thing you see online! :rotfl:

zppp

never-in-doubt wrote: »

The OFT do not get involved in cases of unenforceability - it is for a court to decide!! LOL - as I say, you need to learn more than just one thing you see online! :rotfl:

Hence why I stated in their opinion in my post.