Nat West business OD & Shoosmiths - HELP

[Andyorch]

Yes makes sense to us...now I will play devils advocate

 

"So -

1. they litigated on an account number which was not mine ( yours but without your knowledge )

2. the personal guarantee did not relate to the account number (Im sure they will state they have the legal right to change account numbers once its in the hands of Telford/router acc..therefore the PG still encompances any connected account )

3. the litigated amount that was not the full amount owed by the Ltd co (possibly challengeable)

4. they never litigated against the Ltd Co or remaining £20k. (8yrs later = SB now) Surely that's a plus on the judgment to your LTD company ? Any agreement subject to litigation the clock stops with regards to Limitations.

5. they continued to send interest accruing statements 1/4ly on the Ltd Co account (the part unlitigated which in effect is still outstanding ?) "

 

Just points that I would raise from a Courts perspective should the Judgment ever be revisited

[HP Mum]

Happy for you to play devils advocate...

 

 

re 2 - how can it be legal to transfer an unsecured current bank account into a managed loan on terms that I never agreed to?

 

 

re 4 - what do you mean the "any agreement subject to litigation the clock stops with regards to limitations" ? does that mean that in 2008 when they litigated that the 6y starts then so it would be SB? or that there is no limit and never SB?

 

 

Don't forget my argument is that they litigated on an account they set up without my knowledge and never litigated on the correct account.

 

 

re 5 - the un-litigated part of the debt has never been pursued. I think I read in other threads that they needed to have sent me docs over the years if they ever intend to litigate. They haven't and more than 8y have passed.

 

 

Also - I have mentioned on this thread before - the judge gave them 14 days to clarify any and all debt. Shoos replied that they were only instructed on this new account, not the Ltd Co

[Andyorch]

Happy for you to play devils advocate...

 

 

re 2 - how can it be legal to transfer an unsecured current bank account into a managed loan on terms that I never agreed to? I think if you searched deep down in the T&Cs of the accounts and in general dealing with " The Bank" they will have this covered re transfers/amalgamations..they always do

 

 

re 4 - what do you mean the "any agreement subject to litigation the clock stops with regards to limitations" ? does that mean that in 2008 when they litigated that the 6y starts then so it would be SB? or that there is no limit and never SB? If a claim is issued on an agreement/debt this stops the clock with regards to statute of limitations...unless the agreement /debt was already statute barred pre litigation

 

Don't forget my argument is that they litigated on an account they set up without my knowledge and never litigated on the correct account. See above 1.

 

 

re 5 - the un-litigated part of the debt has never been pursued. I think I read in other threads that they needed to have sent me docs over the years if they ever intend to litigate. They haven't and more than 8y have passed. The agreement/debt has been litigated and judgment attained...(in full or partially) therefore there is no requirement to send any statements or statuary notices pursuant to the CCA1974

 

Also - I have mentioned on this thread before - the judge gave them 14 days to clarify any and all debt. Shoos replied that they were only instructed on this new account, not the Ltd Co

Time has passed..it should have been challenged at the time..unfortunately

 

Andy

[HP Mum]

I'm confused.

 

 

I was advised to send in a CCA request to Shoos and SAR to NW

I have also read that Paulwalton successfully challenged NW on the transfer of his current account into a managed loan account at cms telford.

And Shoos specifically stated to me and to the court, that the litigated account was completely separate to the Ltd Co account. They can't have it both ways.

[Andyorch]

Yes but he did at the time the claim was issued and defended HP not 6 years later...its very costly and complicated to back track on judgments...I think you would be better concentrating on your other threads ...and put this on the back burner for now.

[HP Mum]

If they litigated on an account that they have categorically classified in writing as nothing to do with the Ltd Co then surely the Ltd Co must be considered separate and not part of the litigation at all and could be considered thus as SB now?

 

 

It is a mess and I am just trying to sort it out. Even if more than 8y later.

I'm paying monthly towards an account that they have specified is NOT to do with the original debt....

[Andyorch]

Then make application to set a side and offer all your findings as part of your intended evidence...should the court agree to an hearing this will allow you to defend it properly this time.

[HP Mum]

Yes, I think that is what I would like to do - get it set aside. Even after so many years. Otherwise I will be obliged to keep paying monthly.

First I will send a reminder letter to shoos.

And a SAR to NW.

Just to see how the land lies before considering a set-aside.

[paulwlton]

The problem you face HP Mum is that a judgment supersedes an agreement and therefore ..technically a CCA section 77/78 request is not applicable.Their choice if they wish to comply.

 

CCA request is valid if the judgment creditor is applying PJI,

[paulwlton]

I wouldn't challenge the CCJ it could cost you.

[Andyorch]

CCA request is valid if the judgment creditor is applying PJI,

 

I'm not aware they are Paul. ...but thanks for raising that.

 

Sections 77 to 79 set out a limited number of situations where the duty to supply copies and statements does not apply.

 

• It does not apply to an agreement under which no sum is, or will or may become payable by the debtor or hirer. It will therefore not apply where the agreement has been paid off and terminated.

 

It will also not apply where judgment has been obtained, unless there is an interest-after-judgment clause in the agreement which the creditor or owner has not expressly waived. Where, however, the agreement has merely been terminated, but monies are or will or may be payable under it by the debtor or hirer, the OFT considers that the duty will still apply.

 

Regards

 

Andy

[paulwlton]

I'm not aware they are Paul. ...but thanks for raising that.

 

Sections 77 to 79 set out a limited number of situations where the duty to supply copies and statements does not apply.

 

• It does not apply to an agreement under which no sum is, or will or may become payable by the debtor or hirer. It will therefore not apply where the agreement has been paid off and terminated.

 

It will also not apply where judgment has been obtained, unless there is an interest-after-judgment clause in the agreement which the creditor or owner has not expressly waived. Where, however, the agreement has merely been terminated, but monies are or will or may be payable under it by the debtor or hirer, the OFT considers that the duty will still apply.

 

Regards

 

Andy

 

That it, if the judgment creditor is applying PJI then he needs to prove there's a PJI clause in the agreement otherwise he's stuffed.

 

I believe it's possible to have a judgment, charging order set-aside if they were born out of an unenforceable agreement, so a Pre 2007 CCA agreement. The problem of course is obtaining one post CCJ. I'm sure a COA ruling confirmed this.

[Andyorch]

We will have to wait and see if OP can confirm Paul

[tedney]

I'm sure a COP ruling confirmed this.

Please elaborate. What is a "COP ruling" please, I cannot work it out, sorry! t

[HP Mum]

The terms of the overdraft and guarantee allow for post judgment interest so, I assume it is being applied.

(However - the terms of the overdraft and the guarantee refer to the Ltd Co account - which is not the litigated account with new #s NW set up)

 

 

I have asked shoos for a statement.

I asked for current balance and full transaction history to show exactly what I have paid to date and exactly what they have added to the balance.

They have failed to respond to this request,

I have sent another letter reminding them that I am waiting for this info.

 

 

So as I understand the recent feedback above - I need to wait to see how Shoos replies & I have sight of the up to date statement to see if they have added PJI.

But, I am sill confused as I never had an agreement for the account on which they litigated....

 

 

Also - what is a COP ruling?

[Andyorch]

Interest PJI

 

If a creditor has got a CCJ against you, they may be able to add extra interest once a charging order is made.

 

For some types of debt, the law allows interest to be added onto CCJs separately from the terms and conditions of the agreement. This is known as ‘statutory interest’ and it runs at a standard rate.

For some debts, there is a clause in the agreement which allows further interest to be added to the debt after the creditor has got a CCJ. This is known as ‘contractual interest’.

 

Statutory interest cannot be added to a CCJ if:

 

the debt is for an agreement regulated by the Consumer Credit Act (most ordinary credit agreements, including bank overdrafts); or

the debt is less than £5,000 in total, even if it is not covered by the Consumer Credit Act.

 

If:

an agreement allows contractual interest to be added after a CCJ is made; and

the CCJ was made on or after 1 October 2008;

the creditor has to follow certain steps, such as sending you a proper notice, before the contractual interest can be added. Contractual interest builds up separately to the judgment and will not be secured by the charging order.

[paulwlton]

Please elaborate. What is a "COP ruling" please, I cannot work it out, sorry! t

 

Sorry typo COA

[Ford]

Sorry typo COA

Court of Appeal

[HP Mum]

Hi Andy.

NW did not get a charging order against me. I successfully defended that attempt (thankfully).

CCJ - was end summer 08 (so before Oct 08)

 

 

I had no 'official' agreement on the litigated account - nw set up the account, gave it an account number and sort code without my knowledge and I never signed an agreement.

 

 

If this "agreement" (which I have never seen) allowed for contractual interest to be added - then NO I have not been sent proper notice by NW or Shoos.

Do I assume from this situation that if contractual interest has been added in a separate account - that it can not be enforced (by any later separate claim) because NW has never sent proper notice?

 

 

The ccj debt is more than £5k. But because I never set it up/signed any docs for this specific litigated account number & sort code and shoos have not sent a copy of the account docs - then I have no idea if the "agreement" was regulated by the consumer credit act?

If I make an allowance for NW to have been 'allowed' to transport the debt into a new type of account without my knowledge/signature - by default would it be unregulated? And if the debt is more than £5k would NW then be able to add (8%) statutory interest?

[HP Mum]

However, aside from what I have just written above, NW DID continue to send me quarterly statements for the Ltd Co. And I do still get general newsletters addressed to the Ltd Co.

 

 

I am still waiting for info from shoos.

But in the meantime do you think it possible that they are charging interest on the litigated account and putting it into the Ltd Co account?

[HP Mum]

Hi Paul - why would it 'cost me' to challenge the ccj?

[paulwlton]

Hi Paul - why would it 'cost me' to challenge the ccj?

 

Because you are liable for the other sides costs should you be unsuccessful.

[HP Mum]

OK thanks for that tip. Am still waiting to have a written reply from shoos. However, they have written again asking for me to increase payments, despite apologising and saying they wouldn't do it again !!

[HP Mum]

Still NO reply to 2 letters from Shoos.

[HP Mum]

still no response from Shoos. Hardly surprising really, given the lack of account set up details !!

 

have now drafted a SAR to send NW.

 

Couple questions:

should I re-send request for account set up details and CCA to Shoos?

They have failed to respond within the legal statutory timeline & 2 written reminders.

 

Or should I ignore Shoos now?

And send the SAR to NW?

 

 

And tell NW Shoos failed to provide details under legal obligations of CCA request?