Being taken to court for natwest joint OD debt - advice please

[sequenci]

hang on are they chasing YOU for money which already vests within your partners bankruptcy?

 

i'm really not sure that is right at all.

[rbrears]

Joint debt means joint and several liability. Im afraid that does mean that the bank can chase you both for the full amount at the same time. They will have to give credit for any money recovered in the bankruptcy to you or vice versa. But, they are probably going on the basis that they will finish their court proceedings against you before the bankruptcy is concluded so in fact they may well expect to recover as much as they can from you and then see what might be left to seek to recover from the bankruptcy. As far as the bank are concerned you are solvent and your husband is not. It is natural, i'm afraid, that they will pursue you.

[The Phantom]

Joint debt means joint and several liability. Im afraid that does mean that the bank can chase you both for the full amount at the same time. They will have to give credit for any money recovered in the bankruptcy to you or vice versa. But, they are probably going on the basis that they will finish their court proceedings against you before the bankruptcy is concluded so in fact they may well expect to recover as much as they can from you and then see what might be left to seek to recover from the bankruptcy. As far as the bank are concerned you are solvent and your husband is not. It is natural, i'm afraid, that they will pursue you.

 

Yes, but at the moment they are seeking to recover the full amount from both of us at the same time. They are negotiating with the trustee and taking me to court at the same time. Surely they can only do one at a time to see what needs to be recovered from the other party. As far as I see it, whatever they recover from the bankruptcy Estate which they are actively pursuing by their own admittance they cannot request of me, but they are requesting the full amount from me as well which is incorrect.

Well, as I only earn £500.- pcm on a part time job with two children under 6 they will have a hard time to get any money from me at any rate, but I will defend anyway, to see what happens. I have absolutely no money to give them, so I can't be any worse off by defending. Part of the debt is an old overdraft from a joint current account, but I know for sure I never signed any overdraft agreement, my husband arranged that but even he said he never signed anything, it was done verbally. So I have requested from them true copies of the signed agreement for which they are pursuing me. Just to see what evidence they base their demands on. Surely they would have to produce some form of evidence in court anyway, but nothing was included with the court papers, they just wrote on there I owe them X amount

[The Phantom]

hang on are they chasing YOU for money which already vests within your partners bankruptcy?

 

i'm really not sure that is right at all.

 

They are negotiating with the trustee already as they are seeking to recover the money from there, but have taken me to court for the same amount at the same time. So basically in theory they are trying to recover the money twice. You imagine they get a CCJ against me for the full amount and I am ordered to pay X amount per month to clear it over the next 10 years or whatever and then the bankruptcy is settled and they recover most of the debt through there as well. Then what ? I have got a CCJ and are paying for something that is already paid ? Or do I then need to appeal the CCJ ?

To me this appears to be incorrect practice.

[The Phantom]

Hi

 

maybe someone can help me here. Nat west is taking me to court for a debt with my husband who is declared bankrupt since October 2006.

Part of the debt is an old overdraft on a joint current account.

Question: I am sure I never sigend an overdraft agreement for the disputed amount of £6000.-, my husband arranged this. Because it is a joint account, can my husband arrange for the overdraft, sign for it on his own and hence subsequently make me liable for the debt solely after he is declared bankrupt ? He says he arranged the overdraft with Nat West but I never signed for any of this and now they tell me I have to pay it back because it is a joint account and my husband is insolvent ? The same with a loan agreement I cannot ever remember signing and have no copy of. Again they say it is joint and I have to pay it all back because he is insolvent. It is bizarre, because they hunted me down at work and at home and bombarded me with letters and phonecalls I assumed they must be entitled to the money.

As part of the entire matter I have made them an offer of repayment of £27.- which they turned down ( I only work part-time with two children) and started court proceedings instead. I filed an acknowledgement of service and sent Nat West a request for information asking them for a signed copy of the agreements they are referring to and how they calculate the outstanding amounts which are substantial. I asked them to provide this within 21 days to give me still a little time then to file a defence with the court. They are also trying to recover the same amount from my husbands bankruptcy estate and negotiating with the trustees at the same time. So basically (if indeed the debts are joint despite me not signing anything) they are trying to recover the debts from me and my husband at the same time.

Today I received another letter from Nat West telling me they are seeking to obtain a charge against my property to secure the outstanding debts. But I do not own a property anymore (strictly speaking) as the house has been claimed by the trustee as part of my husbands bankruptcy estate and they are already negotiating with the trustee as well ?? No decision has been made about the house as yet by the trustee. A forced sale would not even cover the outstanding mortgage never mind anything else.

If they can still apply for a charge against the property despite the fact the trustee has claimed it, is there a way to appeal regarding the Mercantile vs Ellis case / 1987 ?

A lot of queries, but I don't want to surrender just as yet, so maybe someone has got a bit more advice.

I posted before and got some hints and tips, maybe I can tap into someones knowledge once again:eek:

[gizmo111]

For the overdraft you will be jointly liable.

To take a loan out in joint names would need your signature.

AFAIK they cannot over ride anything the OR is doing/claiming.

Ask for copies of loan agreements - send a SAR with £10.

[Guest NATTIE]

Nicole99- as gizmo has stated the overdraft bit is joint liability however if there is some sort of loan then that should not be classed as a joint liability as it was only on one name ie your husband's. Rest of the questions I don;t know the answet to/

[The Phantom]

For the overdraft you will be jointly liable.

So you do not need to sign a credit agreement to arrange for an overdraft ?

Is an overdraft not also a credit arrangement or agreement and would therefore require a signature from the party who wants to take it out and if it is two parties who want it would not both have to sign for it ? I.e. would I not have to sign the agreement or at least somehow make me aware of it to make me liable to repay it ? I do not even know the terms and conditions or anything else and have not arranged it but am being pursued to repay it now because it was a joint account ? Can I still request to see the overdraft / credit agreement this is based on ? (well I have done so anyway and for the loan as well to see what they come up with)

[louiboy]

The Trustee is effectively the owner of the property during the course of the Bankruptcy. There's a few things they can do with it. I don't think Nat West can apply for a charging order. This would not be fair to any other creditors.

 

The property aspect is explained here IEL Reference Guide: PROPERTY MATTERS

[The Phantom]

The Trustee is effectively the owner of the property during the course of the Bankruptcy. There's a few things they can do with it. I don't think Nat West can apply for a charging order. This would not be fair to any other creditors.

 

The property aspect is explained here IEL Reference Guide: PROPERTY MATTERS

 

I think the complication comes in whereby my husband is declared bankrupt and I am not and I am a co-owner of the property (or was ?) I received a letter from the trustee saying he has now a vested interest in the property and even I am a non bankrupt co-owner he can still sell the property if he so wishes (great) but I think 50% of any equity would still be mine from a sale. He could only claim 50% of the equity (my husband's) to use to pay off debts, so the equity is reduced to 50%. But all that is hypothetical as the property has no real equity or value (it is in negative equity by approx 30K) so no decision has been made by the trustee. As Nat West is already negotiating with the trustee/OR (and there are a number of other creditors from my husband's side who are also negotiating) I don't see what they are trying to achieve by taking me to court at the same time to get a charging order. The property is in the hands of the trustee so he would have to agree to a charging order or do I see that wrong ? In my view Nat West is duplicating things here. I am not English and English is not my first language, so I have been reading a lot of threads here and information on the internet but as soon as it gets into real "legal talk" I am starting to struggle a lot and have to re-read things to try and understand, so I am fighting my way through based on bits and bobs I have found on this website and see where it will take me

I am waiting to see if Nat West supplies the signed agreemenst and furter information I have requested, if not I may see if I can use that as a defence. I need to file some form of defence by 18.01. by my calculations and requested that Nat West supplies documnets in support of their claim by 13.01.:o

[Guest NATTIE]

Nicole99- when the joint account mandate was signed when you became a joint signatory that contained the joint liability part of it. If either one of you could sign for cheques then either on of you can sign for an overdraft. The plain answer is that he could have signed for an larger overdraft without your knowledge but the fact that it is a joint account means you are still liable for the overdraft on it.

[The Phantom]

Nicole99- when the joint account mandate was signed when you became a joint signatory that contained the joint liability part of it. If either one of you could sign for cheques then either on of you can sign for an overdraft. The plain answer is that he could have signed for an larger overdraft without your knowledge but the fact that it is a joint account means you are still liable for the overdraft on it.

 

I am not actually from this country and such a facility whereby someone else can arrange debts in your name without your knowledge and without your consent or signature seems amazing and then making you liable for it --- unbelievable. Never mind

So to proove this debt I guess they will have to produce the joint signatory bit from when the account was opened ? That was in the early 1990s , (93 or 94) so I guess I will have to wait and see what they produce for the court. Thinking of it I am pretty sure I never agreed to any overdraft facility, so I will have to sit back and wait.

[The Phantom]

Bump....

Have sent SAR to NatWest with £10.- and also asked in a separate request for true signed copies of the alleged agreements but I believe they have 40 days to comply (with SAR) and 21 days (to supply the copy agreements), my defence needs to be with the court on or before 25.01. according to the County Court in Telford

If NatWest does not supply the true signed copies or comply with the SAR request quickly enough for me to post my defence, can I use this fact as an initial defence and if the documents show up later AMEND my defence and possibly inlude a counterclaim for unlawful charges at a later stage ??

[Guest NATTIE]

I think you are looking for a copy of the Joint account mandate which they will be able to provide to you. It is the case that unless both parties to an account have to sign for everything and you remained on that account that any overdraft amount could be signed by your husband and you would still be liable for it. The charges on the other hand you can get back.

[tbern123]

I think you are looking for a copy of the Joint account mandate which they will be able to provide to you. It is the case that unless both parties to an account have to sign for everything and you remained on that account that any overdraft amount could be signed by your husband and you would still be liable for it. The charges on the other hand you can get back.

 

You have hit the nail on the head...

 

Some banks refer to it as either 1 to sign or 2 to sign... this is in relation to the account holders required to authorise a transaction. I would say at least 95% of these types of accounts are 1 to sign as people don't really consider the problems that may occur in the future.

[The Phantom]

I think you are looking for a copy of the Joint account mandate which they will be able to provide to you.

Yes, that is probably what they have to dig up from their late 80s / early 90s archives, but if they do not provide it (as well as the signed loan agreement) in time for me to file my defence, does anybody know if I can put this non disclosure as a defence to file with the court to meet the deadline and IF they provide the documents AFTERWARDS can I still then amend my defence to reflect the new facts ?

[Guest NATTIE]

Did you have a card on the account? Did both or one of you sign for cheques?

You DO have a case for charges no doubt about it. In relation to the loan which I think I missed, they would have to produce evidence that it was signed in joint names.

[The Phantom]

You DO have a case for charges no doubt about it.

Yes, but in order to determine the amount of charges I need the information requested under the S.A.R. If they don't provide it really quickly (which I doubt they will) I can't make the counterclaim at the time I file my defence

So I was wondering if I can amend the defence to reflect this at a later stage

Hmm..maybe I should start a new thread with a different header ?

[Guest NATTIE]

But you can state that the amount is in dispute and that you would request further information as to the amounts that is being claimed that you owe. I see lookingforinfo on the thread so hopefully another point of view re defense

[lookinforinfo]

Nicole, you may have to think about applying to the Court to get them to put

back your case for a month or so in order for you to get all the information

you have requested from the bank. you can use the fact that the bank are

not supplying you with the necessary information in time, and they are constantly harassing you at work as well as at home which is not helping.

Explain also that not being English, your understanding of some of the legal

implications are slowing down your ability to comprehend what is being said,

far less prepare your defence.

 

In addition, it might be helpful for you to speak to someone at the Citizens

Advice Bureau. Their advice is free and they may be of help in giving you

your best defence and how to answer the banks' claims.

[The Phantom]

I have phoned the court today to check by when my defence has to be filed and to make sure they got my acknowledgement

They told my it had to be in by 25.01 (no later) in order to avoid judgement by default against me. I explained that I was waiting for documentation from the claimant without which I couldn't fully prepare my defence. The Lady told me that things like that are between me and the claimant and nothing to do with the court and I must adhere to the deadline, but she suggsted to put the non disclosure bit as part of my defence. She said it is important that the whole case is logged as being defended in the allowed time frame. Then I would get an Allocation Questionnaire which would be more in depth and that would then later be used by the judge to determine what to do with the case

But she also suggested I send copies of my letters to the claimant to the court and they will put them into the file

This took me a bit further down the road today and triggered my query whether I could change my defence if Nat West supplies the documents later. You see, if I just put "they haven't proven the debt by showing signed copies of the agreements" as my sole defence then that will collapse as soon as Nat West produces these after I filed. I would need to change everything really in that case and I don't know if I can

I read a post from Bankfodder in a thread somewhere (can't remember which one) and I remember he said "you may have to amend your defence later" in a similar context, so I was thinking maybe there is a possibility the court will let a defendant change their defence if circumstances change

I know I should see the CAB but to explain the whole mess to one of their advisors will probably take all day (my spoken English is not quite as good as written one when trying to explain something verbally) and I was told the real legal advisors there cost money like solicitors, i.e. I have been told they only assist you if you qualify for legal aid. I don't know if I would and what the requirements are for that. It is so messy and so much work because I also have to deal with all my husbands

bankruptcy side of things at the same time, raise two kids and work. There are not enough hours in the day at the moment, hence I am still up and working at 00.30 am !!

[lookinforinfo]

Well Nicole, before going to Citizens advice, you could write your situation

down for them before you go, then all you have to do is answer any questions arising from your letter and listening to their advice and asking

further questions of them as they occur to you. As money is tight, I would

recommend avoiding solicitors, though I would consider speaking to your

local council as far as getting possible financial help with your case-in fact you could ask Cit. Adv. about that.

As for your defence, there is no reason why you cannot put down as many

lines of defence as you can think of, with the caveat that they still have not

supplied you with all you need to properly put your case together and

depending on what they finally forward to you, may result in further points

in your defence.

y

[MARTIN3030]

Yes, but in order to determine the amount of charges I need the information requested under the S.A.R. If they don't provide it really quickly (which I doubt they will) I can't make the counterclaim at the time I file my defence

So I was wondering if I can amend the defence to reflect this at a later stage

Hmm..maybe I should start a new thread with a different header ?

 

 

You have some experienced posters here so its unlikely to be of much benefit merely changing the thread titles.

You have until the 25th that gives at least almost 3 weeks.

If the agreements do fall within the Consumer credit act then Trading standards will also advise you on this free of charge,and they do know their stuff.!!

Although I dont suggest that you use a solicitor everyone is allowed 10 minutes free under the green form scheme,that could give you some pointers.

It seems that you need both clarifications and also documentation to be in the driving seat,3 weeks may just enable you to tip the balance.

[The Phantom]

.

As for your defence, there is no reason why you cannot put down as many

lines of defence as you can think of, with the caveat that they still have not

supplied you with all you need to properly put your case together and

depending on what they finally forward to you, may result in further points

in your defence.

y

 

That's what I contemplated. I wanted to start it off by saying I have requested the following information (blah blah blah) but claimant failed to supply before my defence had to be logged hence limiting the way I can compile my defence and possibly a counterclaim against the claimant. Then go on to what I would say if they provide the signed agreement copies at a later stage and just put it all in and see what happens.

I do want to avoid solicitors if I can due to cost implication, although I have been told by a friend that due to my low part time income I would qualify for legal aid, but I am doubtful as they would most likely take my husbands income also into consideration and that may just knock us over

As there really are some very experienced posters here (I totally agree !!)

I will compile my defence and post it here and ask for comments before posting it to the court and then just go for gold.

[The Phantom]

I have done some research on the internet to find out more about the Mercantila vs Ellis Case in 1987 and the subsequent judgement as it may be important to know in my case

I wanted to know exactly what it entails and when it applies

It would appear that the debtor needs to have defaulted on a county court judgement in order for

A creditor to seek enforcement of the judgement which can be done through a charge of the property.

Only if the debtor already had a repayment / instalment type judgement in place and has not actually defaulted on these payments the Mercantile vs Ellis case would apply and no additional charge on the property could be taken out

It would appear that creditors now try and do it the other way around to get a definite charge on the debtors property – get a judgement for the full amount forthwith straight away and then default the debtor on it and then get the charge with no problem , as the Mercantile vs Ellis case would not apply

And then in the subsequent re-determination hearing agree to a repayment plan with a charge already

In place ?

This would explain why Nat West did not want to enter into any discussions regarding

Repayments but took me to court instead. I believe they want to get a judgement on the full amount against me and then default me on it to get a charge on the house.

This is supported by their last letter to me that stated “ we are seeking to obtain a charge

Against your property and will then re-consider any repayment offer”

Would this however not indicate that they want to intentionally default me just to secure

The debt and circumvent the Mercantile vs Ellis court law ?

Could this be used as a defence against them in some way as it would be unfair or deceptive ?