unenforceable loan

[newward]

I have a loan, which is unenforceable. I did a Subject Access Request for my CCA, and NatWest replied firstly with just a list of payments due to be made for the rest of the loan, the amount I took out, the date. But, NO APR, NO PPI amounts etc. I wrote back to say that this was unacceptable, and that I wish to see a signed copy of my credit agreement, with all of these details. They then write back to tell me that they have "misfiled and cannot locate my credit agreement". I write back, using templates provided on this website, and some others, informing them that I am refusing to pay this loan anymore,I want a full refund of any amounts paid to date and to return my account back to zero.

 

I receive a letter from them on xmas eve?!, to inform me that under s.77 (4) of CCA, that they would be unable to take steps to recover the debt via court, they would register me as a default with the credit reference agencies. I have written back to explain that they would be in contravention of consumer credit act, and data protection laws etc etc. Matter now raised to FOS - from what I see, hear, they take ages... I spoke to the local CAB near my work in the city of London, and they seem very interested in my case, and agree with all steps that I have taken. Anyone else at this stage, or been past this stage and won ? thx very much.

[davey77]

As they have admitted they don't have an agreement then in doing so they have admitted they are unable to process your data (add information to the Credit reference agencies.)

 

You give permission for them to add data to your credit file within an agreement. No agreement = no right to process data.

 

The FOS in my case took 7-9 months to review after initial complaint was sent in. (They didn't uphold my complaints re CCA but that was a completely different matter than your response from NatWest.)

 

They have said the agreement has been 'misfiled' which is not the same as saying it is gone forever. Only that they cannot locate it right now.

 

I don't think you can afford to wait for the FOS to look into your case for months knowing that Natwest could suddenly locate a valid agreement. (A possibility.) I believe you need to strike while the iron is hot and if the CAB are not fast acting enough then your best course of action is to give Natwest formal notice of your intention to proceed to Court IMO.

 

I would also copy the letter they sent saying they don't have an agreement and send it to all three CRAs stating you want all information removed otherwise you will issue proceedings for Libel. They won't do it but they should add a dispute notice to the files.

 

If your Local CAb seem interested in this i would really ask them to keep the pressure on Natwest.

Edited January 16, 2009 by davey77

[newward]

Hello Davey, I haven't defaulted yet.I will miss my first payment this month, as I am steadfastingly refusing to pay anymore towards the loan, for the reasons outlined above etc. I will send some letters to the CRA's to add a dispute - I contacted them via e-mail, in anticipation of Natwest trying to default me soon - and they said they couldn't comment - as they are not a regulatory body. Natwest have not replied to my last letter - see attached ..when you say taking to court, which I have threatened to do - what would be the first step in me doing this ? I haven't really got the spare cash, to take them on - would I just go via a small claims court?

 

 

In your most recent letter, you state that you write in response to my recent letter, but I am concerned that you have not understood or heeded the points I made in my letter.

 

As you are unable to locate my credit agreement, and the documentation that you provide me is unacceptable – as I explained previously, no signed agreement ( you are now in violation of CCA 1974 –Section 77 – paragraph 4 ) no rate of APR, no rate of PPI..the loan is LEGALLY UNENFORCEABLE You have stated in your most recent letter, that you are unable to take steps to ENFORCE the loan, via COURT, under section 77 ( 4 ) of the Consumer Credit Act, so..

 

Please take this letter as notice under section 78 ( 6 )

• He is not entitiled whilst default continues to enforce the agreement

• If the default continues for one month, he commits an offence

 

Also …

 

*I will not be making further payments on my loan – as the loan is LEGALLY UNENFORCEABLE.

*Refund to me, any payments that I have made to yourselves on this loan, thus far – approx £****** PLUS 8% interest on this amount.

 

*Return my loan balance to zero, from approx £*****.**

 

• I look forward to compensation under Section 13 of the Data Protection Act 1998 to be offered for the processing of my data in the manner it has been done over the past number of years.

 

 

• After a full refund of all payments with interest and compensation are received by myself, you will be required under Section 10 and Section 12 of the Data Protection Act 1998 to cease and desist all manual and automatic processing of my data within your company and any other company within your group

 

 

• If you do not respond positively to my request, court action may be taken under Section 14 of the Data Protection Act 1998 to force Natwest, or any other company within the group to comply with the refund of all monies paid, removal of all defaults maintained and compensation for damage and distress as a result of unlawful data processing. I HAVE ALREADY passed the matter to the relevant enforcement authorities including, the Information Commissioners Office, - with particular reference to section 42,43,44 on the below document link. Trading Standards, the FSA, and my local MP. I have also submitted a complaint form to the FOS, who are looking at my case with particular interes, so I expect for you to hear from them very soon.

 

ICO

 

http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/default_tgn_version_v3%20%20doc.pdf

 

SECTION 42,43,44

 

I also refer you to section 39 of the same document…

 

Accuracy of a lender’s default records

 

39 Records

 

Any default record should be accurate. We normally expect a lender to keep records that are necessary to show an agreement exists and to support filing a default. We would also expect a lender to be able to produce evidence to justify a default record they had placed on a credit reference file. Not having any supporting records may indicate a breach of the data protection principle requiring personal data to be adequate, relevant and not excessive for the purpose for which it is processed.

 

You lack evidential proof of a credit agreement between ourselves – this is your ( NATWEST/RBS Groups ) mistake not mine !! This account is in dispute, so you must understand :

•

• You may not demand payment, nor am I obliged to offer any payment to you now.

• You may not add further interest or charges to the account.

• You may not pass this account to a 3rd party..

• You may not register any information in respect of the account, with any credit reference agencies

• You may not issue a default notice, related to this account.

 

Data Protection Act (Data Protection Act 199

Furthermore, under the Data Protection Act (D10), you are also denied the authority to pass on any of my personal data. To do so in the circumstances is I understand a breach of the Data Protection Act 1998, and also the OFT guidelines, and should you ignore my request it would again result in you being further reported to the relevant authorities.


 

I also refer you to the below, in relation to the Consumer Credit Act :

 

Section 85 states that a copy of the executed agreement should be provided, not a copy of an improperly executed agreement. If there is no properly executed agreement then the debt cannot be enforced .The law is the law

 

“executed agreement ” means a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing;

The case law on this is quite clear, no agreement no loan

 

 

Therefore, for the avoidance of doubt in this matter, please understand how seriously I take this matter, and how seriously I believe the above authorities will treat the points I have raised in my previous documentation,and this letter.

 

Please also understand, I have raised the matter of yourselves reporting my account as a DEFAULT to the credit reference agencies – to the credit reference agencies themselves, copying in the ICO & FOS ,and I await their responses to my letters – I still do not understand on what legal basis you feel you are able to do this- considering the loan is UNENFORCEABLE – as you are unable to supply my ORIGINAL SIGNED LOAN AGREEMENT.

 

You have 14 days from receipt of this letter to contact me, with your intentions on resolving this difficult matter.

 

Yours sincerely

 

 

is it worth me speaking to trading standards or my local MP as well, to get some more momentum ? I am also persuing the bank for mis-selling on up to 7 loans I have had in the last 15 years. have a good weekend.

[tifo]

i also have some accounts where the creditor (DCA) has said the OC cannot locate an agreement so they are closing the account (write off) but then that they could re-open it anytime they like if the management so decide in any review.

 

in this case, what should i do?

 

if i chase them for anything, such as compensation for the defaults they maintained or claim back all money i paid under an invalid agreement (interest, charges and other fees), they might re-open the account, but then without an agreement what can they do? simply have it open on their system but not able to collect or do anything else?

 

altogether on 3 accounts the DCA wrote off some £7,500, after a letter i sent detailing the requirements of the CCA 1974 and their obligations and what agreements must contain. This was after i passed a complaint to the FOS asking them to send me a valid agreement. MH who were chasing these accounts on behalf of the DCA paid me some compensation as well.

 

(i'm glad some of my posts are useful to the OC in the above letter).

Edited January 17, 2009 by tifo

[davey77]

Hello Davey, I haven't defaulted yet.I will miss my first payment this month, as I am steadfastingly refusing to pay anymore towards the loan, for the reasons outlined above etc. I will send some letters to the CRA's to add a dispute - I contacted them via e-mail, in anticipation of NatWest trying to default me soon - and they said they couldn't comment - as they are not a regulatory body. Natwest have not replied to my last letter - see attached ..when you say taking to court, which I have threatened to do - what would be the first step in me doing this ? I haven't really got the spare cash, to take them on - would I just go via a small claims court?

 

Your letter covers everything and if you have given them reasonable time to reply then they are stalling. I read on this site yesterday of someone in a similar position but after a short time the agreement was found (i think after a SAR was sent) so time is of the essence here!

I believe it's £150 for the N1 form but you would need to send an L.B.A before you issued that (Letter Before Action) informing them of your intention to issue Court Proceedings unless they comply with your demands within, say, 14 days. But, even once the N1 has been served it will take a long time to get to Court (time isn't what you have on your side.) I issued an N1 to Cap1 in April and the hearing wasn't set til Dec! That would give Natwest a lot of time.

 

An alternative, quicker (and slightly cheaper at £75) is the C.P.R route. Civil Procedure Rules. Have a look at the first part of this thread:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

..which explains it although you would use alternative letters as those state you believe the agreement may be improperly executed. (Which isn't your case.) Yours is very simply an inability of the lender to supply information you are legally entitled to which has ramifications on their ability to enforce the debt and something they have kindly already admitted to in writing. Sending the C.P.R letters initially doesn't cost anything, only when you ask the Court for an order to disclose the information requested would you then pay.

You must give the lender time to reply so you are looking at 21 days for the first letter and another 21 for the second.

Please take this letter as notice under section 78 ( 6 )

• He is not entitiled whilst default continues to enforce the agreement

• If the default continues for one month, he commits an offence

 

The Criminal Offence after 30 days no longer applies now due to the new Regs of May 2008.

 

is it worth me speaking to trading standards or my local MP as well, to get some more momentum ? I am also persuing the bank for mis-selling on up to 7 loans I have had in the last 15 years. have a good weekend.

 

The action you should take then as i see it are:

 

1. Make a formal complaint to Trading Standards in writing. Don't waffle on too much, just give the facts and ask them to contact Natwest as a matter of urgency. Include a copy of Natwests letter showing they don't have an agreement.

 

2. Ask your local CAB to write to Natwest on your behalf.

 

3. Send the CPR letter asap to Natwest, keep it fairly short and sweet (no need to point out what they already know) but make it clear they are acting contrary to the Consumer Credit Act and the Banking Code. Post the letter up here for input from others.

 

1 & 2 shouldn't be relied upon to get you a quick result. They are really a formality but it may just help to get those two organisations involved and certainly won't hurt.

 

3 really is your best option.

 

You can write to your MP about it certainly but that is the last task on your list of things to do. Do the others first, they are more important as your MP, like most, is probably a numpty anyway

[davey77]

i also have some accounts where the creditor (DCA) has said the OC cannot locate an agreement so they are closing the account (write off) but then that they could re-open it anytime they like if the management so decide in any review.

 

If the account has merely been 'passed for collection' and not legally 'sold' then all the DCA is doing is closing their file and passing it back to the OC. It doesn't 'write it off' in anyway. It's a small victory but the battle goes on.

 

if i chase them for anything, such as compensation for the defaults they maintained or claim back all money i paid under an invalid agreement (interest, charges and other fees), they might re-open the account, but then without an agreement what can they do? simply have it open on their system but not able to collect or do anything else?

 

Have you seen PT2537's very useful thread on the subject of asking for agreements via the CPR?

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

altogether on 3 accounts the DCA wrote off some £7,500, after a letter i sent detailing the requirements of the CCA 1974 and their obligations and what agreements must contain. This was after i passed a complaint to the FOS asking them to send me a valid agreement. MH who were chasing these accounts on behalf of the DCA paid me some compensation as well.

 

Sorry, don't know what MH stands for

The FOS bined all my complaints re supply of a properly executed agreement! If you have had a good result from them great but if you are still waiting for adjudication then i wouldn't put much faith in them. Pm me and i'll supply you with links to their responses if you need.

 

(i'm glad some of my posts are useful to the OC in the above letter).

 

Nice to get compensation... never had that .. not yet anyway!

[tifo]

Hi,

 

Tessera bought the debts and Mackenzie Hall (MH) was chasing them.

 

Tessera wrote them off after a few letters, after the FOS complaint, and MH paid me £250 for chasing. I made a separate complaint about each DCA to the FOS.

 

Prior to this, i'd been paying something to Tessera every month until my CCA s.78 request in Jan 2007 and nothing substantial turned up, apart from an unsigned (by the bank) application form, so they haven't been paid anything from me for the last 2 years. They used to chase occasionally, until i went pro-active this time!

[newward]

Davey, I'll do exactly what you have said, on 3. Thank you very much for your help!

[davey77]

Newward, no worries. Just make sure that your letter (post it up) is very reasonable and patient in tone as that's what the Court will want to see before they agree to order a disclosure and you should be fine. The OC might even cave in before you have to issue the Court form. You never know

 

Tifo, will look at your thread.

[newwardfc]

trading standards ( ie consumer direct ) were pretty much useless, said that I had done everything they would recommend. As they are regulated by FOS/FSA, they are the regulatory/governing bodies.

[davey77]

trading standards ( ie consumer direct ) were pretty much useless, said that I had done everything they would recommend. As they are regulated by FOS/FSA, they are the regulatory/governing bodies.

 

It's not acceptable to be fobbed off by TS. I think you'll find it is the OFT that have the closest relationship to TS:

 

The Office of Fair Trading: The OFT and TSS

 

TS should supply you with a named officer who deals with your complaint (which should be in writing). I would not bother with consumer direct who 'work in partnership' with TS and whose website looks like it was designed by the guy that created the set for Playschool.

 

Details of your complaint, along with relevant copies of documentation and correspondence, should be sent to TS in a letter headed 'Formal Complaint' and with the sub-heading "re: non-compliance of Royal Bank of Scotland (Natwest) under the Consumer Credit Act 1974".

 

Send by recorded delivery so TS can't say they never received your complaint. Ask them to investigate as a matter of urgency and to reply promptly.

 

If you hear nothing after 2 weeks. Send another complaint. If you hear nothing or only that they will contact you again later etc give them the amount of time you feel fair (2 weeks?!). If you still have no joy then download your local Council Complaints form and complain about Trading Standards failure to investigate and/or keep you informed of their progress. In other words: Be a darned nuisance.

[newwardfc]

thx Davey - did you see my PM about the CPR ?

[davey77]

thx Davey - did you see my PM about the CPR ?

 

Hmm nope, can't see that one showing?!

[newwardfc]

I was just a little bit confused by it, I agree its a good/suitable act for my case. I just need to adapt the first letter I guess.. I was a little confused by the witness statement. Now that I intend to take this action, do I need to keep the FOS informed ? I also sent off the letters to the CRA's yestreday,and a letter is being sent to the information commissioner today, along with a letter to the OFT/TS. I am also sending a letter re PPI mis-selling on 7 loans and a credit card to the FOS now, as Natwest have had their 8 weeks !

[davey77]

I was just a little bit confused by it, I agree its a good/suitable act for my case. I just need to adapt the first letter I guess.. I was a little confused by the witness statement. Now that I intend to take this action, do I need to keep the FOS informed ? I also sent off the letters to the CRA's yestreday,and a letter is being sent to the information commissioner today, along with a letter to the OFT/TS. I am also sending a letter re PPI mis-selling on 7 loans and a credit card to the FOS now, as NatWest have had their 8 weeks !

 

A small adaptation is required for the first CPR letter. I personally would leave in the 'belief it may be improperly executed' line incase they come up with it at a later stage. But i would add also that you are entitled to receive an agreement upon request and the lender (for reasons stated in their correspondence) have failed to provide one.

 

I was confused by the Witness statement to start with but as i see it the ABC1 refers to copies of all correspondence where you have requested the agreement along with the replies received. (I'd check with PT once you are ready to compose your witness statement at a later date and post it up here at the time.)

 

If you already have a complaint lodged with the FOS then yes, they would need to know if actual Court Proceedings had begun (the issue and receipt on your N1) as they don't investigate when a Court case is ongoing. But... the CPR is Pre Action Protocol (before official action has been instigated) therefore i would not bother to inform the FOS until such time as the N1 has been received by the lender at a later date.

 

You can still continue to complain to the Information Commissioners Office and CRAs. Complain to the OFT either way as i know you will only receive a 'thank you' standard letter informing you they do not get involved in individual complaints anyway.

 

The PPI aspect is included in the CPR letter/witness statement so you can certainly complain about that separately but no agreement (or improperly executed one) = no right to take PPI payments and if the CPR gets a result then you would request all charges, payments and PPI to be refunded.

 

You say 7 loans.. is that all with Natwest?

[newwardfc]

yep 7 loans, they are looking at all loans taken out with them during my 15 years banking, as essentially, they were all taken out under the same proviso.. I understood, and was told consistently.. you need the PPI to get the loan, otherwise underwriters will not view you favourably. 6 of these 7 loans have settled.

[newwardfc]

I just called the CAB , they have had a reply from their specialist legal team. I will be getting a call from the counsellor I saw there, on Thursday, to attempt to translate what this department have said.. sounds interesting.. I'll post up what they say, once I have had the feedback..

[davey77]

Ah i see. I wonder if it's at all possible to request agreements for accounts that have previously been settled? hmm interesting thought but a fight for another day perhaps.

 

Ah well done with CAB then.. hope that proves fruitful!

[newwardfc]

I took the decision to go to a CAB in the City of London, rather than one nearer home, as I thought they might be more well versed in these matters, and I think I made the right decision so far !

[davey77]

Sounds like you made a wise move there for sure!

[newward]

ok, here is the letter that I am going to send them tomorrow :

 

 

Manchester Retail

Customer Service Centre

1 Hardman Boulevard

Manchester

M60 3NS

 

 

FORMAL REQUEST FOR INFORMATION

CPR part 31.16

 

Dear Sir/madam

 

Account number: xxxxxxx S/C xxxxxxxx

 

I have previously requested a copy of my loan agreement, which you have been unable to provide – as you “mislaid it” and you state that you “have been unable to locate it.”

 

* I have reason to believe that the agreement may have been improperly executed

 

* I also believe that I have been mis-sold payment protection

 

I must stress that the particular request, I am making through this letter, is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules ( Pre action protocols and Part 31.16) and therefore unsigned copy ( through lack of the original ). will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances

 

Please confirm AGAIN, if you DO, OR DO NOT hold a copy of my signed agreement and that you will provide me with this document OR , if you cannot provide me with this agreement.

 

I do not view this as an unreasonable request..

 

Since this matter is likely to be subject to proceedings, and given that your organisation is likely to be a defendant in any action which would be brought by me, I must draw your attention to Civil Procedure Rules part 31.16(3)©&(D) which gives the court the power to order you to disclose this document to me.

 

The disclosure of these documents will allow me to consider any claim I may have against your organisation and will allow for the matter to be dealt with possibly without the need for costly litigation.

 

Therefore I again ask that you provide me with the documents which I have previously requested . I don't not consider this request unreasonable and therefore if you fail to comply with my request I will be left no option but to make an application to my local County Court for an order made under the provisions of CPR 31.16 ordering you to disclose the documents which i have requested.

 

In addition to this,I will ask the court to make an order for my costs in bringing this application and reserve the right to disclose all communications in this matter before the court should such an application become necessary

 

Please confirm by no later than 4pm on 6th February that you will comply with my request or if you will not comply, please provide your reasons in writing.

 

Please also be informed that the Financial Services Ombudsman, The Information Commissioner, and my local branch of Citizens Advice Bureau, in the City of London – together with their legal team, are currently assessing my case. I have also recently written to the OFT, and my local Trading Standards group, in Guildhall, London. I have also made the main Credit Reference Agencies, aware of our current dispute.

[davey77]

ok, here is the letter that I am going to send them tomorrow :

 

 

Manchester Retail

Customer Service Centre

1 Hardman Boulevard

Manchester

M60 3NS

 

 

FORMAL REQUEST FOR INFORMATION

CPR part 31.16

 

Dear Sir/madam

 

Account number: xxxxxxx S/C xxxxxxxx

 

I have previously requested a copy of my loan agreement, which you have been unable to provide – as you “mislaid it” and you state that you “have been unable to locate it.”

 

* I have reason to believe that the agreement may have been improperly executed and/or that no valid or enforceable agreement exists between us

 

* I also believe that I have been mis-sold payment protection

 

I must stress that the particular request, I am making through this letter, is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules ( Pre action protocols and Part 31.16) and therefore unsigned copy ( through lack of the original ). will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances

 

Please confirm AGAIN, if you DO, OR DO NOT hold a copy of my signed agreement and that you will provide me with this document OR , if you cannot provide me with this agreement.

 

I, personally, would leave that bit out. You don't want it to be construed (twisted) as a request. Thereby getting a response of "we will undertake to investigate and search our archives to confirm that we do not hold an agreement. This will take weeks oh, and we might just find it?!"

I do not view this as an unreasonable request..

 

Since this matter is likely to be subject to proceedings, and given that your organisation is likely to be a defendant in any action which would be brought by me, I must draw your attention to Civil Procedure Rules part 31.16(3)©&(D) which gives the court the power to order you to disclose this document to me.

 

The disclosure of these documents will allow me to consider any claim I may have against your organisation and will allow for the matter to be dealt with possibly without the need for costly litigation.

 

Therefore I again ask that you provide me with the documents which I have previously requested . I don't not consider this request unreasonable and therefore if you fail to comply with my request I will be left no option but to make an application to my local County Court for an order made under the provisions of CPR 31.16 ordering you to disclose the documents which i have requested. If this order is thereby granted I understand failure to comply would be considered Contempt of Court.

 

In addition to this,I will ask the court to make an order for my costs in bringing this application and reserve the right to disclose all communications in this matter before the court should such an application become necessary

 

Please confirm by no later than 4pm on 6th February that you will comply with my request or if you will not comply, please provide your reasons in writing.

 

Again, that rather asks for a confirmation letter in reply. To the effect that they will reply by confirming their future intent to answer this letter of yours in 4-6-8 weeks (Delay tactic). Also the 6th isn't very long away under the CPR. The object (should this get to Court) is to appear reasonable and 21 days should be the timeframe at least. I am giving my CPRs 28 days now thereby showing my ultra reasonableness in attempting to avoid wasting the Courts valuable time

 

Please also be informed that the Financial Services Ombudsman, The Information Commissioner, and my local branch of Citizens Advice Bureau, in the City of London – together with their legal team, are currently assessing my case. I have also recently written to the OFT, and my local Trading Standards group, in Guildhall, London. I have also made the main Credit Reference Agencies, aware of our current dispute.

 

It's entirely up to you but should you wish to give them a final chance to back down and admit defeat you could give them the option to reach an agreement. This would look like a very nice gesture on your part and could be pointed out at future CPR or N1 hearing:

 

Should you be unwilling to enter into negotiations to resolve this matter out of Court then please pass this correspondence on to your Legal Department for their immediate attention and since this letter is the first stage of intended court action I may be forced to instigate, you are required under the general pre-action protocol of the CPR to send me any information I request. Please therefore supply me with a copy of any and all documents in your possession that you will be relying on as a defence to this claim.

[newwardfc]

Hi Davey - amendments made.. have given them till 23rd Feb to comply. I will post information from CAB,and their legal team tomorrow, as soon as I know it..

[newwardfc]

spoke to Natwest this evening.. they tell me they have sent me a letter to tell me their legal department, is now looking at my query ? not sure what that means for me at the moment. I spoke to the CAB , they gave me, their legal teams overview, which pretty much concurs with a lot of the things I have seen on this website, but I will wait till I get the letter in my hand,and digest it, before I give any details. Feeling a bit overrawed by it all now !!!! The FOS are looking at my claim now, but I see from other websites, that the FOS dont really have a concern on CCA agreements - as its seen to be more of a legal issue ?

[newward]

hello,my next loan payment is due out on Monday, I don't know whether to make it or not...I know it would contradict some of the things I have said above, but would stopping paying, prejudice my case, if/when it goes to court?