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

[payingonlyencouragesthem]

"I also don't want this matter dangling above my head until doomsday. So I had the bright idea to see if I can get the stay lifted and strike out their claim as they are in breach of the CCA and about to commit a criminal offence. I know it would be bold but I rather go forward and bring the court case to an end and then see what happens. I don't want that breathing down my neck all the time."

 

Do exactly that. Certainly don't pay them anything. If they can't even produce one of the agreements you are holding all the aces and they are totally screwed. They cannot collect anything without a true signed copy of an agreement. See below part of a letter from the OFT sent in response to a complaint made against Lowell (I think the original thread is in the DCA forum).

 

If a creditor/owner fails to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all. This prevents enforcement with or without a court order. If a default lasts for a month (for example a calendar month) it constitutes an offence. We understand your concerns in this matter but please do remember however that once the creditor/owner complies with the request albeit out of time, he may once again enforce the agreement.

 

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when each is/was due). However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

[The Phantom]

Hi

 

I need some help with a court case against me, brought on by NatWest

http://www.consumeractiongroup.co.uk/forum/general-debt/48764-being-taken-court-joint.html

The case is stayed by my local county court

I would like to have the stay lifted to apply to have their claim struck out on the basis that they did not provide original signed copies of the agreements (CCA section 127 / 3)

Any idea how to do this anybody ?

[The Phantom]

"I also don't want this matter dangling above my head until doomsday. So I had the bright idea to see if I can get the stay lifted and strike out their claim as they are in breach of the CCA and about to commit a criminal offence. I know it would be bold but I rather go forward and bring the court case to an end and then see what happens. I don't want that breathing down my neck all the time."

 

Do exactly that. Certainly don't pay them anything. If they can't even produce one of the agreements you are holding all the aces and they are totally screwed. They cannot collect anything without a true signed copy of an agreement.

 

So you think I should try and get the stay lifted and attempt to strike out ?

It is very bold and I am scared of my own courage, but on the other hand learning by doing. They can't do more than to reject my application. I just need to know which forms to use

 

We understand your concerns in this matter but please do remember however that once the creditor/owner complies with the request albeit out of time, he may once again enforce the agreement.

Interesting, so only real salvation is if the agreements are totally lost ? But I think that will also change when the amendment to the CCA comes into effect in April according to zootscoot

When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

This is where I am, Natwest has tried to enforce in court, I have requested to see their signed copies and they have not provided them, so really I should try and have the claim struck out now

based on this.

 

All this would indicate that NatWest doen't really want any arbitration, they want extra time to look for the agreements because it appears they can legally still provide them out of time anyway (why put a time limit into these laws if they mean nothing ?)

[payingonlyencouragesthem]

The best thing to do at this stage is probably just to say you do not wish to discuss the matter until they produce the agreements - I'm not sure how one would most effectively petition the court to have the matter struck out at this juncture - maybe others here could advise. You may also incur unnecessary court fees. Just sit back and wait until April - if they don't produce any agreement by then you are sorted. They may be using this tactic because they have analysed your circumstances and think they could get higher monthly payments by negotiating but I very much doubt this.

[payingonlyencouragesthem]

"Interesting, so only real salvation is if the agreements are totally lost ? But I think that will also change when the amendment to the CCA comes into effect in April according to zootscoot"

 

Nicole I have done a bit of searching and cannot see any such erosion of consumer rights. I doubt CAB would welcome such legislation if it dispensed with this obligation. See:

 

GNN - Government News Network

[The Phantom]

Apparently there is an amendment to the current version of the CCA coming into effect in April which allegedly removes the bit where a debt becomes totally unenforceable without a signed agreement

It is changed to it that it becomes a judges decision whether a claim can go ahead without the agreement or not.

Have a look at this

http://www.consumeractiongroup.co.uk/forum/legalities/65019-cca-amendment-2006-7-a.html

[payingonlyencouragesthem]

Very interesting Nicole - it does muddy the waters. However if the DCA has committed a criminal offence under current legislation it must give you quite a strong hand under the current and future regime. My take would still be to hold fast until April and see if they can find the agreement.

[SHERLOCK]

It is a scary to think that you will have to get to hearing to find out whether the judge will enforce? Who or what will give them direction, could the results be totally random?

[payingonlyencouragesthem]

It is a scary to think that you will have to get to hearing to find out whether the judge will enforce? Who or what will give them direction, could the results be totally random?

 

Agreed Sherlock. Are you sure this is actually what is going to happen? I don't seem to have seen anything about this anywhere.

[The Phantom]

Well, I only came across it by accident - I am always desperately scrambling around for information here (poor little me ;-))

It was a post by member zootscoot who appears to be very legally minded and well informed about the law

I will try and find it again

She said at the time there was a court case where a creditor appealed the fact that their debt was unenforceable because they had no agreement anymore at the Court of Appeal based on the Human Rights factor (basic right of safety of property or something and that the current CCA was in breach of this Human Right bit) The Court of Appeal agreed with the bank ! But this was overturned by the House of Lords (I am not that knowledgeable about UK law system, I am a dumb foreigner..sorry) but it triggered a change of the CCA which comes into effect in April

[SHERLOCK]

so surely it will be written in stone, not a random judges decision?

[The Phantom]

The way I understand the change is, that the bit is taken out where it says the debt is totally unenforceable without a true signed agreement

It will be replaced by something that says if no true signed original agreement can be provided by the creditor then a judge has to decide whether the claim can proceed without the document. Probably if the creditor can provide other proof that an agreement did exist (statements etc) ?

[The Phantom]

I found the post / thread now

http://www.consumeractiongroup.co.uk/forum/legalities/25668-curious-twist-two-cca.html

If you read down the first page of this thread, you will get to the case and info from zootscoot on post no. 16

[The Phantom]

I also found the document N244 which by the looks of it I would need to fill out to apply for a removal of a stay. Would cost me £35.- and a good essay along the line of Bankfodders removal of a stay template in the templates folder on the site.

As NatWest should not have started / proceeded with this claim without the signed agreements maybe I can cook something up based on the CCA

Is it worth the gamble though

hmmm

[lookinforinfo]

Nicole, as harsh as it may sound, and despite the sympathy I feel for your

situation, as the law stands, the bank are entitled to look to you, as well as

your husband to repay the debt. That they should have waited for the outcome of your husbands bankruptcy before asking you to contribute is

certainly the case, if only to avoid any chance of overpayment. Did you

ever offer to repay anything at all prior to the Court case?

In view of the strength of their case against you albeit they have yet to comply with your CCA request, I am not sure that asking for the stay to be removed would be a good idea, if you want to keep the Judge onside.

 

Write to the bank pointing out that your situation, which they were aware of

before they instituted Court proceedings has not changed. The only thing

that has changed since the start of the case has been their inability to

comply with the CCA request. In the light of their previous desire to force

you into Court whilst being well aware of your current financial standing,

the fact that the debt is actually your husbands and your reluctance to

come to an agreement prior to knowing how much your husband may be able

to contribute, leads you to suspect that the request for a stay is more to give them extra time to locate the agreement rather than to effect a solution. You therefore await

any meaningful attempt by them to suggest a satisfactory conclusion to

the case with interest.

 

And a copy to the Judge.

That will alert the Judge, if he was not already aware of that possibility,

without having to risk £35. It also means that they have to come up with

a pretty strong offer to you, to show that their newfound concern for you

is not because they cannot locate the contract.

[payingonlyencouragesthem]

I also found the document N244 which by the looks of it I would need to fill out to apply for a removal of a stay. Would cost me £35.- and a good essay along the line of Bankfodders removal of a stay template in the templates folder on the site.

As NatWest should not have started / proceeded with this claim without the signed agreements maybe I can cook something up based on the CCA

Is it worth the gamble though

hmmm

 

Just sit tight and tell them you want to see the agreements before you decide anything. The worse that can happen is it goes to court in April and you are asked to pay a pittance. If you already have a bankruptcy in the family a CCJ isn't going to make much difference to you.

 

The point about the new CCA is interesting - this will certainly make life more difficult. However the bottom line is nobody can or will be forced to pay what they haven't got so only people like NatWest who are trying to fiction up their balance sheets will take people to court. The problem is that NatWest don't have to register an accounting loss if the loan is still theoretically collectible.

[The Phantom]

Nicole, as harsh as it may sound, and despite the sympathy I feel for your

situation, as the law stands, the bank are entitled to look to you, as well as your husband to repay the debt.

Thats if they can find the agreements to say I am actually liable or owing anything. At the moment without the paperwork I don't owe them anything as they can't proove I do. I am dead serious when Iam saying I cannot ever remember signing a loan agreement with NatWest for the sum they are claiming. I can assure you I do not have Alzheimers and such a sum would stick in my mind. My husband said that he arranged it in a branch himself, but to make it joint I must have signed it but cannot remember doing it or having seen any such agreement at home in our loan folder. That is why I am insiting that they produce the agreement, to ensure I signed and that it is indeed my signature. I don't want to repay someone elses debts

 

That they should have waited for the outcome of your husbands bankruptcy before asking you to contribute is

certainly the case, if only to avoid any chance of overpayment. Did you

ever offer to repay anything at all prior to the Court case?

In view of the strength of their case against you albeit they have yet to comply with your CCA request, I am not sure that asking for the stay to be removed would be a good idea, if you want to keep the Judge onside.

A judge should not hold it against me if I request that a claim against me that has not any evidence in support (and claimant has committed a criminal offence in the course of action) is thrown out. Really (as NatWest has not produced any evidence to show that I owe them any money at all) there is no need to make time for arbitration.

 

Write to the bank pointing out that your situation, which they were aware of

before they instituted Court proceedings has not changed. The only thing

that has changed since the start of the case has been their inability to

comply with the CCA request. In the light of their previous desire to force

you into Court whilst being well aware of your current financial standing,

the fact that the debt is actually your husbands and your reluctance to

come to an agreement prior to knowing how much your husband may be able

to contribute, leads you to suspect that the request for a stay is more to give them extra time to locate the agreement rather than to effect a solution. You therefore await

any meaningful attempt by them to suggest a satisfactory conclusion to

the case with interest.

 

And a copy to the Judge.

That will alert the Judge, if he was not already aware of that possibility,

without having to risk £35. It also means that they have to come up with

a pretty strong offer to you, to show that their newfound concern for you

is not because they cannot locate the contract.

That is a good idea as I have checked with the local court and it would cost me £65.- to apply on me lonsesome and £35.- if NatWest agrees to lift the stay as well (which of course they won't as long as they have the Mountain Rescue sifting through their archives looking for the papers)

[The Phantom]

Just sit tight and tell them you want to see the agreements before you decide anything. The worse that can happen is it goes to court in April and you are asked to pay a pittance. If you already have a bankruptcy in the family a CCJ isn't going to make much difference to you.

 

The point about the new CCA is interesting - this will certainly make life more difficult. However the bottom line is nobody can or will be forced to pay what they haven't got so only people like NatWest who are trying to fiction up their balance sheets will take people to court. The problem is that NatWest don't have to register an accounting loss if the loan is still theoretically collectible.

 

Interestingly enough it was never about a CCJ - I don't care about that

What got my back up was their statement in a letter to me that "we now intend to secure the outstanding amount against your property" Nice one, as at the time they did not even have a CCJ let alone a defaulted one which is the only scenario they could get a charging order. I therefore assumed and alleged that all their actions so far were purpose driven and 'with intend' to default me in order to secure an unsecured debt against our home. Hence their speed with everything so far and their refusal to enter into any dialogue or negotiaion with me to that point. I believe the fact that I defended and had the outrageous nerve to ask for the agreements (i.e. exercise my own rights) somehow stopped their war machinery, as all of a sudden they now want arbitration again. Their solicitor had the nerve to deny they said they wanted to secure the debt, although I have their letter from back in December last year which says exactly that. Their solicitor also had the nerve to say by not staying in contact with them I left them no alternative to start proceedings against me which is quite a frank lie as they received a reply to each and every of their letters. They just never intended to negotiate at the time as all they wanted was a charging order and to get it they did what they did (i.e acted with intend) and thta's what got me really p****d off with them and I decided to take them on and drag them through the system as long as the system will allow me. If they don't cough up the agreements by Thursday they can now also pay a hefty fine if they want to continue the proceedings. Good.

[lookinforinfo]

Nicole, I think you have to be careful.

The Judge will be in no doubt that there is a debt owed to Nat West -certainly

arranged with your husband and possibly yourself. The fact that the bank have been unable, as yet, to produce the original agreement does not mean

that the debt does not exist, nor that the bank cannot prove that it exists.

No, they have not been able to produce the agreement are thus in breach

of the Act. However, I wnet back to your early posts today, and you said

that you had offered them £27 a month, which would surely show the JUdge that even you thought there was a debt.

 

Now while that offer helps to prove the debt, it also shows goodwill on your part for making the offer. And puts the bank in a bad light by continuing to

pursue you when you had already made them as good an offer as the Court would probably have ordered.

 

I am pretty sure that were it your husband in Court, rather than yourself,

that the bank would apply for the debt to be enforced even

without the agreement with a good chance of getting the Court Order. With yourself, it may not be so clearcut, since they will have to

prove that you were a party to the loan. Do not assume that the loan is

unenforceable just because there is no agreement. And if the bank can show that in their correspondence with regard to the loan, that they addressed

the letter to both of you, it may make things harder for you still.

 

That is why you have to keep the Judge on side.

 

PS The Act does not say that without the agreement being produced, the debt is unenforceable, it says the debt is unenforceable

without a Court Order . Big difference.

[The Phantom]

Hi LFI

 

I don't understand the CCA anymore, as other threads on the site suggest

completely otherwise:

 

I found this which should certainly help you

 

House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

 

The case of Wilson v S.of S.

 

Mrs Wilson purchased a BMW on credit the credit agreement stated 5,250 instead of 5,000 The House of Lords held that the whole debt was unenforceable because the document did not comply with CCA as did not correctly state the price. In fact the credit was 5,000 + 250 arrangement fee was cost of credit.

 

 

Shows how serious paperwork is taken by the highest court in England![unquote]

 

Also:

The relevant section of the Act is 127(3). This makes the agreement entirely unenforceable unless a signed document containing all the prescribed terms is provided. At present this makes the agreement automatically unenforceable. The judge simply can not enforce the debt no matter what.

 

This is about to change under the CCA 2006 which repeals s.127(3). This comes into force April 2007. Under the new Act the court has a discretion as to whether to enforce the debt or not. [unquote]

 

This is in contrast to your opinion on the issue ?

Yes, I did make a goodwill offer to them, but that was after months of telephone and letter harrassment, I truly believed I was also liable, because they told me so (approx 6 times per day on the phone at work and home)

No, they did not send letters addressed to me and jointly my husband

The letters were and still are solely addressed to me

[lookinforinfo]

Yes it is confusing Nicole.

However in the Wilson case, the argument was not that the agreement was

missing, but that the agreement was flawed.

Likewise, if the bank had not countersigned the agreement, then it became

an unexecuted agreement and unenforceable in law.

 

Where an agreement is missing, it can be proved from bank accounts

for example that not only was there a loan, but there is still an outstading debt. And if that is the case, the Judge, if so minded, can take the view that

as the bank has been found guilty of a criminal offence and been fined for it,

that it may be equitable for him to allow the bank to pursue the debt.

Here there is no question that the agreement has not been anything other

than properly executed, since we cannot get sight of it, and as the vast

majority of agreements are correctly written, no reason to believe otherwise

on this occasion.

[The Phantom]

Yes, that was the case example which was supposed to show that the paperwork must be 100% spot on if it is available

When the bank has no agreement at all it cannot enforce the debt in court , that is the general consensus:

 

The relevant section of the Act is 127(3). This makes the agreement entirely unenforceable unless a signed document containing all the prescribed terms is provided. At present this makes the agreement automatically unenforceable. The judge simply can not enforce the debt no matter what.

This is about to change under the CCA 2006 which repeals s.127(3). This comes into force April 2007. Under the new Act the court has a discretion as to whether to enforce the debt or not. [unquote]

 

If the bank has no agreement to show, how can they proove the debtor ever agreed to repay the sums claimed and at the rate of interest claimed ? No agreement = no debt. This is only going to change under the new CCA 2006 the way I understand it.

 

This would also be compunded by the statement of the OFT posted a bit earlier in this thread:

 

If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.[unquote]

 

There is a really interesting thread going at the moment you may want to read through with a couple in a similar situation as myself.

http://www.consumeractiongroup.co.uk/forum/legalities/25668-curious-twist-two-cca.html

This actually examines and tests the theory in practice. In this case the agreements were provided after the 12 + 30 deadline of the CCA but one being illegible and the creditors still pursuing through the courts

Not the same situation but similar. Very interesting read

[payingonlyencouragesthem]

LFI surely the agreement is essential if they are to prove that Nicole is legally liable for the debt, even if she had offered payments. The existence of the debt is not disputed. However, there is prima facie evidence that this is a debt owed by the estate of a bankrupt and it's up to NatWest to prove otherwise. I still think they are trying to pull a fast one by going for the spousal property interest.

[The Phantom]

Sadly that is all they wanted from the beginning, to quickly get a charging order on at least the 50% interest I had left in the property. I don't think they realized the property is in neg by approx 30K and a charging order on 50% of nothing does not amount to much, so if it went that far I would appeal on those grounds.

It is their bold attempt to somehow secure a bankrupt's unsecured debt against his spouses 50% property share that got me so furious and their rather open admittance to this fact in writing to me. And what made me even more furious is their solicitor's denial of this despite the fact that I have the letter. It is an enormous outrage how they now try to backpaddle.

I was spitting feathers for days after that and now they will have to fight for every penny and start by showing me that I owe money in the first place by providing the agreements with my signature on the dotted line. If there is still nothing in the post on Thursday I may take LFI proposed course of action and write them a letter in the format he has proposed above with a copy to the court. If then still no agreements I may take the more aggressive approach forward

That reminds me they also have not complied with the SAR either and I may need to make a complaint to the Information Commissioner as well now. I think their time is up on that as well. I would hate to force them through a court order to comply with my SAR simply in order for me to prepare a counterclaim for a case they have brought against me. They are also hampering that through their non compliance with the SAR (gee, I almost forgot about that)

[joneshousehold]

Nicole

I see you are confused about CCA and I can understand that. The reason there is an opinion that without an agreement it would be difficult for a creditor to enforce an agreement is because of a letter from the Consumer Minister Ian MacArtney which said

 

If there were a dispute about an agreement, the lender would need to prove to a court that there was an agreement and, it is highly likely that the lender would have to produce the original signed document to prove they had an agreement with the consumer to start with. The lender should need to prove to a court that there was an agreement and, if the lender can’t prove the existence of the agreement, winning any court case would prove difficult.

It's in this thread

http://www.consumeractiongroup.co.uk/forum/other-institutions/10900-loan-company-cannot-supply-60.html?highlight=mcartney#post485937

 

Although there is some merit in what LFI says in the earlier posts this is the usual approach to an agreement or contract because the courts recognise that contracts can be written or verbal. Your main argument against this would be that you were intimidated in believing what they said was true, English not your first language etc. Secondly the effect of CCA is to change the courts view of an agreement if it is caught by CCA. If the agreement is a regulated one under CCA then it must be in writing, there is no room for it being verbal. It must also comply with the very strict rules laid out as to how it should be set out and various things that must be included in it. So any action that you took that may partially acknowledge the debt is not as damning as it would be in any other contract disagreement.

 

Don't get too concerned about getting an early closure on this as you may jeopardise your position. The NatWest will now have to do all the running and you have already had some really good advice on what to do next.

 

I am really impressed by the way you have expanded your knowledge. You are clearly taking a lot of time and trouble to get this right. You sound more and more like a legal expert with every posting. Well done and keep up the good work!