ihpj vs. NatWest Cards (CCA Request) - My Contribution

[ihpj]

** UPDATE **

 

Received the following automated correspondence from Natwest:

 

http://www.frontiers.plus.com/natwest3.jpg

 

Nothing special, just usual automated responses.

Edited February 11, 2009 by ihpj
Uploading misc. corres. from NatWest.

[ihpj]

** UPDATE / ADVICE SOUGHT **

 

I have now had a substantive reply from NatWest, in reply to my above letter:

 

http://www.frontiers.plus.com/natwest4a.jpg

http://www.frontiers.plus.com/natwest4b.jpg

 

To me, there is nothing surprising in the content. And I read it as that they assert to having complied fully with my CCA request, therefore as they feel have met the requirement, do not consider the account to be in dispute - which therefore allows them to continue to add debit interest/charges/pursue the debt.

 

They have not sent anything else or provided any further information.

 

We clearly are at an impasse situation where they will now no doubt pass this debt onto a DCA; so in anticipation I prepare for their intervention and am confident that I can fend off the DCA.

 

I do not intend to reply to them as they have made it clear that they will not enter into any further correspondence with me - however, I would welcome feedback/advice/comments/suggestions folks may have not only on this letter, but also on the situation thus far.

 

Now it gets interesting!

[davey77]

They rely heavily on s 78 and are extremely keen to show they have complied with the 'true copy' principle. If however, they had read the CCA1974 they would also add that without a signature document they cannot enforce this in Court. Shame they didn't mention that bit.. must have forgotten eh!

 

What they have said is correct but.. now i think it's time to look closer at PT's thread (post 32) as it is going to be useless from now on to ask for an agreement under s 78. That has served it's purpose and you have a basis on which to go down the CPR route. That should be your next step IMO.

Edited February 11, 2009 by davey77
spelling

[ihpj]

I have had a read of that thread Davey77, vey interesting read. I don't think I have the nuts to do that just yet

 

I think I understand the concept behind it, but if I start to chase them then I had better be in a position to pay them in one go should things go very wrong. As things stand, the onus is on them to engage me - and I am sure they will sell the account onto one DCA after another.

[davey77]

Don't worry. Doesn't take nuts.. just typing skills. Initially. It's just a letter and you can leave it a fair amount of time (making you look really understanding and generous) before asking the Court to order Disclosure should that become needed.

 

It's up to you.. although take note of my main thread and stats. 18 DCAs, over 250 letters written and over 2 yrs with no change (apart from when i took Cap1 to Court.)

 

Personally, i feel you get sick and fed up with just hanging about waiting for the next DCA letter and want some kind of resolution. But it's up to you entirely.

[ihpj]

** URGENT: ADVICE SOUGHT **

 

I have today recieved a Default Notice from NatWest in which they cite the fact that I have failed to make payments as and when due and go on to mention that Court action may ensue if I fail to remedy the situation by bringing my account into line:

 

http://www.frontiers.plus.com/natwest5a.jpg

http://www.frontiers.plus.com/natwest5b.jpg

 

Advice/Support/Guidance appreciated please!

[davey77]

I think it's time it hit back at them. You are never going to get a letter saying 'ok we cave in'. Not unless you back them into a corner. Until then they are going to do whatever they want.

 

I strongly suggest the full CPR letter. Which in itself is just a letter and doesn't mean you will have to go near a Court unless you make the decision to follow it through.

 

Otherwise all you can do is reiterate previous points made (which they are ignoring mind you.)

I would try the short and sharp approach but if it doesn't get you anywhere then, to stop this from dragging on for quite some time, you will have to decide upon a course of action that is aggressive in nature in my view.

 

I would throw something together like this. I have added a CPR request although it isn't as formal as the proper one:

 

-----------------------------------------------------------------------------------

 

"Upon taking Legal Advice i am now considering my options to resolve this matter.

 

In reference to previous generic documentation sent to me regarding the above account i must inform you that you have failed to produce a document signed by myself that contains the prescribed terms as per section 61(a) and section 127(3) of the CCA 1974.

 

What you have sent may well be compliant in response to a S 78 CCA1974 request but as I am sure you are aware when an agreement fails to include the prescribed terms as per section 61(a) of the Consumer Credit Act 1974 and is signed by the Debtor then the agreement will be irredeemably unenforceable.

 

In this regard, I refer you to the decision in Wilson v Hurstanger (2007) EWCA Civ 299:

 

"...Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself:

they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them."

 

Accordingly, what you have supplied to date is NOT compliant with the CCA1974 and therefore, despite your protestations to the contrary, this matter is in Formal and Lawful Dispute and the recently received Default Notice is therefore invalid and void.

 

I look forward to your reply within 14 days to settle this matter amicably. Otherwise i reserve the right to instruct a Solicitor. Should this become necessary, and in line with the principles of the Civil Procedure Rules, I ask that you supply me with any and all documentation you would rely on in Court to substantiate your position.

 

Please respond no later than the (date)

 

Yours sincerely,

Edited February 28, 2009 by davey77
spelling 'advice' properly - XadviseX

[ihpj]

Davey77 - Many thanks; it may not come as a surprise to you to learn that I was thinking along those lines anyways But I wasn't sure how to go about scribbling something down. your contribution is VERY helpful (yet again) - and the generosity of people on this forum in helping people like me never ceases to amaze...THANK YOU!

[the_shadow]

"Upon taking Legal Advise i am now considering my options to resolve this matter.

 

 

"Advice"

 

Sorry for being pedantic:(

[davey77]

No worries! Thanks.

[alangee]

Your DN is dated 20th February 2009, which is a Friday. Did you keep the envelope that it came in? If so, did it have a date stamp? Posted 1st class, it has to be given two working days to get to you, so the earliest that you could have received it is Tuesday 24th February.

 

They state 17 days from 20th February to remedy the breach (9th March), but they have only allowed you 13 days at the most, instead of the 14 days that are required. This makes it invalid. If you had unlawful charges to claim back, this also makes the arrears wrong, which is another reason for its invalidity.

 

Alan

[ihpj]

Alangee I (stupidly) did not keep the envelope but have dug around in my recycle bag and found it...unfortunately it is one of those permanently franked 1st class envelopes that has no date of posting showing. I have retained the envelope though just in case.

 

Interesting what you say about the timescales - never occured to me to count the dates! Just because it is a day (or so) out of the 14 day limit, can it really render the DN invalid? Would love to think so!

[the_shadow]

Alangee I (stupidly) did not keep the envelope but have dug around in my recycle bag and found it...unfortunately it is one of those permanently franked 1st class envelopes that has no date of posting showing. I have retained the envelope though just in case.

 

Interesting what you say about the timescales - never occured to me to count the dates! Just because it is a day (or so) out of the 14 day limit, can it really render the DN invalid? Would love to think so!

 

In legal terms yes, the act clearly states you MUST be given 14 days to rectify... there are a couple of threads that show what happens if they then attempt to terminate the contract... basically you are only held liable to the monies mentioned as arrears on the notice.

 

I think the most telling one was called "Tale of a dodgy DN", I'm at work so cant do a search for it but if you take a look it'll give you an idea of the power of a faulty DN and later termination of contract.

[davey77]

If the Default Notice is a Bad'n then that's good to keep up your sleeve for later. (Should they try to take you to Court you can produce it.)

 

The main area to go for i still think is the agreement. I prefer to think of the agreement as gunpowder and the DN as the bullet.

Neutralising the gunpowder makes the bullet ineffective = backing Natwest into a corner and getting the debt written off due to non-compliance of the CCA can be used to remove the default.

 

That's the way i look at it. Other's may have a better suggestion tho.

[atwozee]

The banks never learn do they – it is a statutory requirement to allow 14 days after service to remedy any breach – your DN actually says they will terminate the agreement if you don’t pay the arrears by this date.

Here’s a link to that thread

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

[ihpj]

OK first off, BIG THANK YOU to everyone for their input/thoughts/advice. I have to admit, my knowledge on Default Notices isn't what it should be but you guys have helped HUGELY.

 

Right, so to clarify: A DN needs a minimum of 14 days to 'remedy'. But 'they' need to take into account days for service, which cannot not include weekends and bank holidays. So in real terms, if they simply send out a DN +14 days, and do not take into account weekends/Bank Holdiays it can render the DN invalid because the days 'left' are

 

Based on the above, in my case specifically, my DN is dated 20/02 and they have given me 17 days to rectify. But do not appear to have taken into account the weekend (2 days) and time for service (2 days). They appear to have taken a simple view of 20/02 + 17 days = 9th March 2008.

 

BUT (and I guess this is the crucial bit) although my DN is dated 20/02, the 14 day period should start from the 24/02 (25/02 is the FIRST DAY of the 14 days) and if you take the required minimum 14 days from here, it takes us to 10/03...but my DN expires on 09/03 - making it invalid by 1 day.

 

I am sorry to sound ignorant, but I wanted to be sure that I have it right in my head .

Edited February 28, 2009 by ihpj
typos!

[atwozee]

That’s how I see it yes.

[the_shadow]

I am sorry to sound ignorant, but I wanted to be sure that I have it right in my head .

 

 

 

This was quoted on another thread to someone (cant remember who put it up Sorry!)

 

1. Interpretation Act 1978, Section 7

 

This states:-

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

[ihpj]

Yup thats what got me thinking in my own situation - but I wanted to be clear. Seems to me that s(2)(a) is the pertinent point in my case as they seem to (somehow) have allowed for only 3 days rather than the full 4, rendering the DN defective.

 

I have to say that I would not have picked up this error myself - so a BIG THANK YOU to the CAG.

 

Question now is how do I respond? Davey77 has made a very good point that I should keep the defective DN in reserve - no point in tipping your hand sooner than neccessary - and by reading the link [very kindly!] posted by atwozee (and referred to by pmw1971) it may be in my favour to let them close down the account according to this defective DN.

 

In any event, what should my response be? I guess I am left with something along the line sof what Davey77 has generously scripted (as per Post # 39). I guess its time to toughen my stance?

[davey77]

As i see it you have three choices.

 

* Letter post 39 and then CPR 31.16

 

* Straight into the Full CPR letter followed by LBA

 

* LBA followed by N1 after 14days

 

(whether you have to go to Court to get an Order for Disclosure depends on what they send and how you want to play it.)

 

I'd go with one of the first two. Make sure you try to get everything out of them you possibly can before starting Legal Action.

 

It's either that or get yourself some Legal help or spend 2 years being chased by DCAs like me

[ihpj]

** ADVICE **

 

OK in light of Davey77's post, here is the letter I propsoe to send tomorrow, 1st Class Recorded of course! Thoughts invited:

 

---------

 

L ANGELL,

Manager Customer Assistance,

Collections, NatWest Bank,

Debt Recovery Office,

PO BOX 5754,

Southend-on-Sea.

SS1 9AJ.

 

I DO NOT ACKNOWLEDGE

ANY DEBT TO YOUR COMPANY

 

Dear Sir/Madam,

 

Re: [Details]

 

I write with regards to your correspondence of 20th February 2009 and the enclosed Default Notice of the same date.

 

I regret to note that you are holding fast to your position that by supplying generic documentation regarding the above account in some way complies with the requirements placed upon you by the Consumer Credit Act 1974. You have failed to produce a document signed by myself that contains the prescribed terms as per section 61(a) and section 127(3) of the Act; and I am sure you are aware that when an agreement fails to include the prescribed terms as per section 61(a) of the Act and is signed by the Debtor then the agreement will be irredeemably unenforceable. In this regard, I refer you to the decision in Wilson v Hurstanger (2007) EWCA Civ 299:

 

"...Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them."

 

Accordingly, what you have supplied to date is not compliant with the Act and therefore, despite your protestations to the contrary, this matter remains in formal and lawful dispute and the Default Notice is therefore both invalid and void.

 

In light of your recent action, I am now taking Legal Advice and considering my options to resolve this matter peranently. I therefore reserve the right to instruct a Solicitor and should this become necessary, and in line with the principles of the Civil Procedure Rules, will seek that you supply me with any and all documentation you would rely on in Court to substantiate your position.

 

I look forward to your reply within 14 days of receipt of this letter with a view of settling this matter amicably.

 

 

Yours sincerely,

 

[Printed Name]

[davey77]

** ADVICE **

 

OK in light of Davey77's post, here is the letter I propsoe to send tomorrow, 1st Class Recorded of course! Thoughts invited:

 

---------

 

...I regret to note that you are holding fast to your position that by supplying generic documentation regarding the above account in some way complies with the requirements placed upon you by the Consumer Credit Act 1974....

 

They have probably complied with the CCA in as much as they are permitted to omit signatures in supplying a 'true copy'. There is no statutory requirement on their part to supply you with the original agreement (even though that's what they would need to enforce the debt in Court).

 

I would 'bold' the important aspects of the quote from Wilson.

 

In light of your recent action, I am now taking Legal Advice and considering my options to resolve this matter peranently. I therefore reserve the right to instruct a Solicitor and should this become necessary, and in line with the principles of the Civil Procedure Rules, ask that you supply me with any and all documentation you would rely on in Court to substantiate your position.

 

Are you after interest and charges as well? I understand that 'not acknowledging any debt' and also, later perhaps, asking for the return of monies paid can be a tricky thing to do at the same time. Hard to say as it were that you don't acknowledge the account and yet ask for the return of funds paid into it. Others may have more expert opinion on that aspect tho.

 

---------------------

 

Dear Sir/Madam,

 

Re: [Details]

 

I write with regards to your correspondence of 20th February 2009 and the enclosed Default Notice of the same date.

 

In supplying the generic documentation regarding the above account you may have complied with your requirements under Section 78 of the Consumer Credit Act 1974 and I am aware that under the Consumer Credit (Cancellations Notices and Copies Documents) Regulations you only need to provide a true copy and that copy can omit signatures and other personal details.

 

However, what you have provided does not entitle you to seek enforcement on the above account as you have failed to produce a document signed by myself that contains the prescribed terms as per section 61(a) and section 127(3) of the Act; and I am sure you are aware that when an agreement fails to include the prescribed terms as per section 61(a) of the Act and is not signed by the Debtor then the agreement will be irredeemably unenforceable. In this regard, I refer you to the decision in Wilson v Hurstanger (2007) EWCA Civ 299:

 

"...Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them."

 

Accordingly, what you have supplied to date is not compliant with the Act and therefore, despite your protestations to the contrary, this matter remains in formal and lawful dispute and the Default Notice is therefore both invalid and void.

 

In light of your recent action, I am now taking Legal Advice and considering my options to resolve this matter permanently. I therefore reserve the right to instruct a Solicitor and should this become necessary, and in line with the principles of the Civil Procedure Rules, ask that, included in your reply, you supply me with any and all documentation you would rely on in Court to substantiate your position.

 

I look forward to your reply within 14 days of receipt of this letter with a view of settling this matter amicably.

 

 

Yours sincerely,

Edited March 1, 2009 by davey77
spelling

[ihpj]

Thanks Davey77, embarassingly I didn't pick up the spelling mistake despite having spellcheck, and as for the bold of the comments quoted, yup they have been suitably highlighted - just not bothered to do that when I posted here.

Edited March 1, 2009 by ihpj
typos!

[ihpj]

Dear All,

 

Have received the following from NatWest today. In essence they have now closed my account and have given me 14 days in which to settle the account in full OR have it passed onto a DCA

 

Thanks to the info./support/advice given on this Forum I am not preturbed about them passing this account to a DCA, I am confident I can rebuff any the DCA, however I am wondering what I should do now in response to NatWest? Here is the letter:

 

http://www.frontiers.plus.com/natwest6a.jpg

http://www.frontiers.plus.com/natwest6b.jpg

[the_shadow]

Dear All,

 

Have received the following from NatWest today. In essence they have now closed my account and have given me 14 days in which to settle the account in full OR have it passed onto a DCA

 

Thanks to the info./support/advice given on this Forum I am not preturbed about them passing this account to a DCA, I am confident I can rebuff any the DCA, however I am wondering what I should do now in response to NatWest? Here is the letter:

 

http://www.frontiers.plus.com/natwest6a.jpg

http://www.frontiers.plus.com/natwest6b.jpg

 

files arent there or I cant see them... sorry! [edit] URL/web address looks wrong http://www.[domainname].[org] should be the format?