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

[lookinforinfo]

It would be a help if you increased the font size to around 12 Nicole.

Can't see how it is deceptive, since they have told you their intentions.

Though why they would want a share in negative equity beats me.

[sequenci]

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 ?

 

if they do get a default judgment (without a hearing) then you can have the judgment redetermined, at that point you can request an instalment order. you are quite right with regard to mercantile credit V ellis, no enforcement without a default on an instalment order. so they will not be able to get that charge.

 

but you will need to be quick as some creditors go for the interim charge VERY quickly indeed.

 

you can get a bit more info here National Debtline England & Wales | Debt Advice | Factsheet 15 Charging Orders In The County Court

 

if you need any further assistance just shout.

[The Phantom]

It would be a help if you increased the font size to around 12 Nicole.

Can't see how it is deceptive, since they have told you their intentions.

Though why they would want a share in negative equity beats me.

 

Sorry about the font, on this occasion I typed it in my Word processor and simply pasted it in the forum form which I usually don't do.

I don't think deceptive is the right word I was looking for. I can't think of a fitting one. Hmmm.

Let me try it this way: They are telling me in their letter which is dated before any CCJ has been made that they are seeking to get a charge on the house. But: a charge on any property in such circumstances is a form of enforcing a defaulted CCJ. They haven't even got a CCJ yet and it is therefore not in any default. So beforehand they are basically telling me they will default me and then seek a charge on the property to enforce it.

So I would think all their previous actions were purpose driven to get a charge on the house, but not to be sympathetic or helpful in any way which I thought they are supposed to be.

As for CCJ procedures: if the debtor in the initial stage admits the debt, makes an offer of £X.- through the court, the court will pass this to the Creditor. The Creditor can then reject £X.- and request that the debtor pays the full amount forthwith. Does the Court then automatically grant this "full amount forthwith"request, serve the debtor with the judgement which then inevitably makes the debtor default on it (because if you could pay the whole amount off in one go you wouldn't be there in the first place). In which case you have defaulted on a CCJ and to enforce it the Creditor can obtain a charge on the property without infringing on the Mercantile vs Ellis case ? And only after all this you can re-negotiate an affordable repayment plan in a re-determination hearing ? It would appear that that is what NatWest is trying to do. (although I now have indicated I will defend the case, which maybe makes it all not quite so easy)

I wil make an appointment with the CAB to see them this week, as this is starting to get over my head a bit.

Will still post updates and poss my defence for some suggestions from forum members

[The Phantom]

no enforcement without a default on an instalment order. so they will not be able to get that charge.

 

Hi sequenci, are you sure it is only default on instalments ? I fear it is default on any CCJ, full amount or instalment. Therefore banks trying to get a charge on a property easier by not agreeing to any instalments in the first place and just obtaining a CCJ for the full amount forthwith which they know the debtor WILL default on to get around the Mercantile vs Ellis case ?

[SHERLOCK]

Hi Nicole,

 

Only going off my experience, when I received my Allocation Questionnaire I duly sent a CCA and a DPA Request to the claimant, sent a copy to their acting solicitor and a copy to the courts with the AQ and a strongly worded statement about the fact they are wasting the court and my time by not producing the documents prior to the hearing. I requested a stay pending delivery/non-delivery of all the said documents.

 

A few days after the AQ hearing, I received the notice of discontinuance.

 

Now, I have received nothing so far from the claimant and I can only sit and wait as to their next step. (I have stopped making any payments to them).

 

The bankruptcy dealings are out of my league, I wonder if Natwest are viewed higher in the bankruptcy chain if they secure a charge on the property?????

 

Good Luck and I hope you are asking for the details from all your creditors, debts are being cut by 50%, even written off, with the help of this site and the wonderful advice,

 

SHERLOCK

[sequenci]

Hi sequenci, are you sure it is only default on instalments ? I fear it is default on any CCJ, full amount or instalment. Therefore banks trying to get a charge on a property easier by not agreeing to any instalments in the first place and just obtaining a CCJ for the full amount forthwith which they know the debtor WILL default on to get around the Mercantile vs Ellis case ?

 

 

well if there is no instalment order then the order will be in default which would mean that the whole amount would be due straight away and therefore, in default. the creditor could then go for the interim charge, you wouldn't even know they have done this as you do not get informed of this. if the creditor does get a default judgment, you can apply for a re-determination within 14 days providing the original judgment was determined without a hearing.

 

"As for CCJ procedures: if the debtor in the initial stage admits the debt, makes an offer of £X.- through the court, the court will pass this to the Creditor. The Creditor can then reject £X.- and request that the debtor pays the full amount forthwith. Does the Court then automatically grant this "full amount forthwith"request, serve the debtor with the judgement which then inevitably makes the debtor default on it"

 

if the creditor doesn't agree the instalment then the court staff should determine a "just" level of payment based upon your income & expenditure using their own guidelines.

 

i'll be honest about the CAB, they are very busy and alot of the times they are being staffed with volunteers who would have minimal training you are better of speaking to specialists at a law centre or calling someone like national debtline on 0808 808 4000.

[The Phantom]

Hi Sherlock

thanks for that. I have indeed sent off the letter REQUEST FOR INFORMATION (I think you used that as well) to see true signed copies of the agreements they are trying to enforce and the SAR. Reply to the first was "we have passed your request to the relevant departments" and nothing with regards to the SAR

My defence has to be in by 25.01., when you did your initial defence did you just use the fact that the claimant had not disclosed any information despite request or something more elaborate ?

[The Phantom]

Hi Sequenci

 

there is no order or CCJ as yet. When I got the court papers I filed the acknowledgement of service and indicated I would defend. I have requested to see true signed copies of the alleged agreements and sent off a SAR for the account with the overdraft as that account is 13 or 14 years old since initially opened and I intend to make a counterclaim for any unlawful charges they have levied in the past six years on that account, and in my defence will use that the amount claimed by the claimant is incorrect subject to verification once claimant has provided / disclosed the relevant information under the SAR. I am sure there will be charges in the past 6 years that I can re-claim.

As for the whole issue, I think NatWest's aim is to obtain a CCJ against me for the full amount forthwith so they can default me on it, and my aim must be to somehow (don't even know if that is possible) to get an affordable instalment order only from the judge I can keep up without giving NatWest the chance to get a charge on the house. Don't really know if I can get that but I believe it is the only chance. The property is already in negative equity by approx 30K and I don't want to add further mortgage like loans, to the vultures it is just a disposable asset on the Land Registry's map, to me and my kids it is a home

[SHERLOCK]

For Some Reason That Initial Letter Was Deemed My Defense By The Court, Seems To Have Done The Trick

[The Phantom]

Oh yes, of course !!! I remember that now. So really speaking the fact that they haven't provided / disclosed the required information was deemed your initial defence. I think I will start my defence off that way and make up my mind whether I will add more just before I post it. I may have to re-write it at short notice anyway if NatWest pulls the agreements out of the hat within the next few days. I gave them 21 days which are up

Saturday 13.01

[SHERLOCK]

The alleged amount goes back 10 years and when I received the AQ and the fact they intend to defend that is when I sent the CCA + DPA requests.

 

I do believe they cannot enforce a ccj without the original signed agreement and you can claim YOUR costs when they do this, though I'm not that brave as yet :o .(wish I knew that 6 years ago).

 

Their have been threads where people are claiming back every penny they've paid when this has been the outcome and I'm not sure but I believe I could claim that the previous ccj culminated in me having to pay extra on my new mortgage as it was showing then?? (you know what this could frighten them off for good)

[The Phantom]

Well, I have written a draft defence and would appreciate it if someone could

have a read and let me know what they think:

 

 

Defence

 

In the XXX County Court

Claim YYYXXXYYY

National Westminster Bank – vs- Nicole99

 

 

It is admitted that the Defendant used to have a current

account with the Claimant. This was a joint account with the Defendant’s spouse.

 

Since procedures have been started by the Claimant the Defendant has made a written request to the Claimant to disclose

to her in detail the reasons for these proceedings and evidence in support of the claim.

The Defendant has requested to see true signed copies of the alleged agreements which under the Consumer Credit Act 1974 must be supplied upon request within 12 working days before the Claimant is in default. It is understood that after a further 30 calendar days without presentation the alleged debt becomes unenforceable in Court and this is deemed a complete defence.

To date the Claimant has not produced any documentation to support the claim. The request was made on the 23.12.06, a copy of which was submitted to the Court on the same day for inclusion in the file.

 

The Defandant has furthermore made a Subject Access Request to the Claimant under the Data Protection Act 1998 on the 03.01.07 with the request to be supplied with a complete list of transactions and charges relating to the Defendant’s banking history with the Claimant. It is understood that the Claimant has 40 days in which to comply with this request. Due to the nature of the claim the Defandant requests that she may alter her Defence once the information is disclosed to her by the Claimant

Should the Defendant discover upon disclosure that within the past six years of her banking history with the Claimant any disproportionate penalty charges have been levied by the Claimant the Defendant may alter her defence to include a counterclaim for a specified amount against the Claimant as such

charges are invalid under the Unfair (Contracts) Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999 Para 8. and sch.2(1)(e).

 

Disclosure of this information is imperative to the Defendant’s defence and the Defendant would request that the case should be stayed until the Subject Access Request has been fulfilled by the Claimant

 

The Claimant has stated in writing to the Defendant that he is intending to take out a charge against the Defendant’s home to secure the alleged debts. This statement was made in a letter to the Defendant on the 28.12.06

The Defendant understands that to take out a charge against a property to secure debts is a means of executing a County Court Judgement that is in default. At the time of making this statement the Claimant did not have a County Court Judgement against the Defendant and any such statements would be prejudice and an indication that the Claimant’s past and present actions were and are purpose driven to solely secure an alleged debt on a property, i.e with intention to default the Claimant.

 

It is understood that following the case of Mercantile Credit Ltd –vs- Ellis and others in the Court of Appeal on March 11th 1987 that should a Court order affordable, level payments and these are kept up to date, a creditor would be unable to also obtain a charging order against a property.

This gives further reason to believe that the sole purpose of these proceedings is to obtain a judgement for the entire alleged amount “payable forthwith” and subsequently to default the Claimant in order to obtain a charging order.

 

It is understood that the Claimant is also pursuing the same alleged amounts from the Defendant’s spouse who is declared bankrupt and whose affairs are at present in the hands of a trustee / official receiver. This includes the Defendant’s and her spouse’s home which is part of the bankruptcy estate and also in the hands of a trustee.

It is understood that the Claimant is also negotiating with the trustees to recover the same alleged amounts from the bankruptcy estate at the same time as starting procedures against the Defendant

The Defendant would allege that whatever amount is recovered through the bankruptcy estate could not be claimed again from the Defendant, so the alleged amounts within the particulars of claim issued by the Claimant would be deemed incorrect until the bankruptcy of the Defendant’s spouse is settled.

 

Therefore the start of proceedings under these circumstances and the actions of the Claimant ( which included frequent telephone calls to the Defendant’s home and place of work between approx 8am and 8pm every day which could only be stopped after a letter was sent to the Claimant informing him of his potential breach of section 40 of the Administration of Justice Act 1970 and the Protection from Harassment Act 1997 and possibly the Wireless Telegraphy Act (1949) and the possibility of a complaint to Trading Standards and the Office of Fair Trading )

could be counter to the ‘Overriding Objectives’ of the new Civil Procedure Rules. As per Paragraph 4 of the Protocols Practice Direction in cases that are not covered by an approved pre-action protocol, the court will expect the parties “to act reasonably…….. In trying to avoid the necessity for the start of proceedings”.

The Defendant would allege that the Claimant has acted and is acting unreasonable.

 

* No admissions are made as to the amounts claimed by the Claimants, and the Claimant is put to strict proof of the same.

 

__________________

 

Hmmmm..would that be OK ? Any suggestions welcome:idea:

[gizmo111]

Can you post POC from Nat West and have you discussed this with the OR/Trustee of your husbands affairs?

[The Phantom]

Sorry, but what is POC ? (Is that the Particulars of Claim as within the papers from the court ?)

In that case the particulars of claim are a few lines only. It gives two a/c numbers, a/c type (current and loan) and outstanding amount

and a total due figure.

Below that there are four lines. One says the claimant holds a licence under the CCA, the next says the claimant has issued default notices in respect of the outstanding amounts and the defendant failed to pay (I don't know anything about this, would I be sent official default notices by NatWest ?) The third line says the total amounts include accrued interest at the relevant agreement rate from date of demand to date of issue and the last says the Claimant claims interest as per section 69 of the County Courts Act

It is all signed by a Nat West member of staff (team leader) and that's all

As for the trustee we have had a letter saying the whole matter of the bankruptcy has been transferred from our local Insolvency Service in South Devon to one in Swansea and we have not heard from them since.

As I am not bankrupt and the one taken to court would the trustee want to know about this ? I only know NatWest is negotiating with the trustees already with respect to claiming the sums through the bankruptcy estate as well as they said so in a letter to my husband.

[The Phantom]

I went to see the CAB today to see if they could also have a read of my defence but as I did not have an appointment I was sent to triage and saw a woman (volunteer I assume) who was supposed to assess my case

She seemed to think that The CCA was not really that important and non compliance by the creditor would not impress the judge. She thought the judge would probably tell NatWest off if they didn't produce any true signed agreements but it wouldn't really help me it wouldn't make a difference.

Is the CCA actually a law or just something that one can comply with if one so wishes but it is not really a legal requirement. Reading through the posts on this website I thought it was a law but now I am confused

The legal experts at the CAB who I was supposed to be referred to wouldn't be able to see me after my defence has to be in with the court so it was of no use to me. They refused to give me an emergency appointment so that was all a waste of time, but still would like to find out about the CCA ?

[Sparkie1723]

With regard to the trustee and the fact that you are joint owners,

1......the trustee cannot touch your 50% share in the house.

The charge will & can only be applied to your husbands half share

.

Although that gets rid of one problem a charging order can still be applied to your half , I know it sounds a bit complicated, but if you can defend /win your case and prevent the charging order then you still own 50% 0f the house.

 

you still have ""assets" in the property that cant be touched by the trustee.

You have really got to seek pro advice on this because even when your husband comes out of bankruptcy that B.....y trustee still has his 50% and its having interset applied to the oringinal bankruptcy amount .....thats the way these trustees make their money and nine times out of ten these trustees are firms of solicitors, I have seen £25,000 orininal bankruptcy

amounts be over £100,000 when the time comes for the sale of the house on the deaths of the two owners and their survivors get practiaclly nothing from the sale .

youve got to get rid of that trustee some how.

Its a sick sad money worshiping old world this financial world

 

 

 

 

Sparkie 1723

 

 

Sparkie 1723

[sequenci]

I went to see the CAB today to see if they could also have a read of my defence but as I did not have an appointment I was sent to triage and saw a woman (volunteer I assume) who was supposed to assess my case

She seemed to think that The CCA was not really that important and non compliance by the creditor would not impress the judge. She thought the judge would probably tell NatWest off if they didn't produce any true signed agreements but it wouldn't really help me it wouldn't make a difference.

Is the CCA actually a law or just something that one can comply with if one so wishes but it is not really a legal requirement. Reading through the posts on this website I thought it was a law but now I am confused

The legal experts at the CAB who I was supposed to be referred to wouldn't be able to see me after my defence has to be in with the court so it was of no use to me. They refused to give me an emergency appointment so that was all a waste of time, but still would like to find out about the CCA ?

 

the cca request is law.

 

s77-79 consumer credit act 1974.

[The Phantom]

Thank you sequenci, that's what I thought

I will leave my defence as is then as nobody replied to make any suggestions etc and Nat West has still not sent any documentation I will post my defence on Monday

 

Cheers

[LoobyLou35]

How are you doing? Have you heard anything from the courts yet?

 

I sent my defence the same Monday you did, and I got a reply from the court on Friday (19th Jan) that the claimant has 28 days to respond to the defence or the claim is stayed.

 

The claimants 14 days are up for the CCA, that was about the 19th January.

[The Phantom]

Hi Looby

got my court papers today - it is the Allocation Questionnaire and the telford Court (where Nat West is located) has transferred the whole issue to my local court in Plymouth. I have got to the 01.02 to return my Allocation Questionnaire and so has Nat West, they have to pay another fee to do so

 

I was about to post a question later for some help to complete the questionnaire anyway, so your post has helped to bump me up again to the top of the list here

 

I have received a semi-reply from Nat West ref my SAR. They sent 6 years worth of statements (should have been more though, as the SAR requests a complete history since start of banking which was in the early 90s in my case) Also the envelope they sent it in got ripped and Royal Mail kindly repacked it all and delivered it in a see-through bin liner type plastic bag

It was a total mess, so I have complained to Nat West already

 

Still no true signed copies of the agreements though

[The Phantom]

Hello

the full story is on my thread Overdraft on joint account

To put it short I am in a legal battle with Nat West regarding some debts

I have defended their court claim and it has proceeded to the Allocation Questionnaire stage, unfortunately I haven't got a clue about what to put in

It has to be returned by the 01.02

There are questions about Pre-action protocols, proposed directions etc , I don't even know what all that is

Has anybody done something like this before and knows how to fill it out ?

I don't want to make a crucial mistake now.

Nat West has not provided true signed copies of the agreements as yet and only half complied with my SAR

How do I bring that into the AQ ? Do I have to enclose all the letters that were sent , do I have to enclose anything ? Do I have to repeat points from my defence ?

:idea: HELP

[jonni2bad]

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html

[The Phantom]

Thanks for the link. I did some searching around the site yesterday and found it myself. Although it is laid out for the claimant to use (if claiming back bank charges) it is still excellent as I can obviously adapt it for my own use as a defendant

even the case management directions / draft can be adapted for my circumstances. This makes it very easy now

I have copied the court into the most relevant correspondence with Nat West since the start of proceedings anyway so I assume I won't have to include it all again

do I have to send a copy of the completed AQ to Nat West as well, as the first question on this form asks whether I have done so (tick yes or no) but doesn't state anywhere whether it is a requirement or not. I would rather not to save the photocopying and extra postage but don't want to endanger anything by not doing it - there is no refernxce to it in the enclosed guidance notes or here on the website

Does anybody know ?

[SHERLOCK]

Hi Nicole,

speak to you soon.

 

I wouldn't go too deeply into that defence, I just requested the stay until compliance with regard the letter as previous, how do you defend when they haven't supplied any documentation to back up their claim??

 

Do you really know what claim amount you are defending?? (NOT WHAT THEY TELL YOU IT IS)

 

I would let them do the legwork, just my opinion mind

 

SHERLOCK

[The Phantom]

Thanks for that Sherlock. Will get started on the AQ with your hints and also the template here

I think I get the message. My problem is I always think too much and make things more complicated for myself than they really are I guess

It was just a bit of a shock getting the questionnaire and only understand 40% of what is required...

Did you send a copy of yours to the claimant ?