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

[The Phantom]

Oh hello and many thanks for your post !

It is always nice to get a variety of opinions. I have taken my daily dose of valium and have calmed down now.

I have looked it over again and I think as long as NatWest can't find the agreements (because I think that is what their problem is at the moment, I don't think they are too worried about a counterclaim or anything else) the scales are tipped in my favour. If they produce one or both in a properly executed format with attachments etc it tips considerably the other way of course. In that case I will make a counterclaim to reduce the debt and see what I can get. I would hope to get a simple repayment order without a charge on the house (which was my main reason to declare war on them from the beginning. They were so blatantly arrogant about it and not even trying to hide their true intentions it just got up my nose. They could have been a little discreet about it you know... so I decided to give them a bare knuckle fight about it if I had to) But if they produce the agreements clearly outside the CCA timescale (i.e. after the 15.02.) I will make a point of their offence and ensure they get fined for it. I am pretty sure as soon as they have both agreements in their sticky little mittens they would want to lift the stay and ditch the arbitration anyway themselves to get moving again. Such is life.

But I appreciate the reason for not being too aggressive now, so I will write a nice love letter based on LFI's template above to them with a copy to the court to show that I am the world's best person to enter into arbitration with and then only time will tell between now and April.

But I think I will make a complaint to the Information Commissioner for SAR non compliance anyway just for good measure

[lookinforinfo]

All I am saying Nicole is not to assume that the whole thing will be thrown out of Court if the agreement cannot be produced.. The odds are not great, but

I don't think it is a good idea to go into Court thinking anything other than

you will have to defnd your position strongly, regardless of what the OFT may say.

Below is a submission by a barrister on another case arguing about contracts_

 

"Ms Gower submitted that there were many examples of cases where the Courts had resolved uncertainty in an agreement by reference to the standard of reasonableness. She cited several examples. The first was Hackney LBC -v- Thompson [2001] L&TR". Admittedly this was a different case to yours, but the principle remains, and Courts do strive to arrive at an

equitable resolution.

 

Nicole, I think you will have to write to the bank since their letter to you

rather put the ball in your court as it were. But it could be a chance to

give yourself some brownie points with the Judge especially as the bank could still locate the agreement.

[joneshousehold]

LFI - I am OK with the idea that a contract can be construed based on the reasonableness test but my understanding is that the Consumer Credit Act introduced a greater standard namely that if a contract is a regulated one it must be in writing. Is the case you quote to do with a regulated agreement?

[lookinforinfo]

Joneshousehold, no it wasn't. I am having difficulty finding examples of

litigation involving this aspect of the CCA-partly down to me using the wrong

keywords possibly. But I remember either Zootscoot or Zooman, I think,

saying that a Judge could still agree to a Court Order without the original

agreement. From memory it was a DCA that was involved, and the deed of

assignement was mentioned as one means of assisting in the proof that

there was a debt. But it was a while ago, and the old grey matter is just that these days-old and grey.

[The Phantom]

I am just going by what most threads on the site regarding this subject suggest: no agreement - no enforcement

Mainly the quote I put down earlier from zootscoot

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]

I think this is very clear. How can a judge go against a specific law. Surely NatWest will have to proove that I signed to repay the debt jointly. If that is not the case and NatWest is unable to proove the debt was in joint names how can he expect me to repay someone elses debt ? Especially as they are already claiming the same amount against some elses bankruptcy estate.

If this was indeed true the whole CCA would be pointless as compliance would be optional not compulsory

[joneshousehold]

I know what you mean LFI, I have the same problem. I think the key is in the post from Nicole but I'm not sure and I really must go to bed as I have to get up in the morning. I will try and look again tomorrow to see if I can shed any more light on this. Sometimes when the grey matter decides it's had enough for the day, no amount of cajoling will make it change it's mind!

[The Phantom]

Well, but I will keep posting updates. Only time will tell

After all they could still produce one or both agreements which would put the whole matter under a different light yet again

At the moment we simply do not know how things are going to evolve

But after a quick sweep it of opinions it has become apparnt that everybody suggests to sit tight until April and not try to force a lift now. So I will bow to the majority vote and follow the route suggested by LFI

I really like the template / letter idea posted above by LFI more and more. Sounds very sensible and professional and maybe that's what is being called for now. Let's do it

[lookinforinfo]

I am sorry Nicole, but that is not quite what s127[3] states.

This subsection relates to a situation where the agreement has not been signed by one of the parties. There is not a provision in the Act that states

the position where the agreement is not available.

[joneshousehold]

I think it's part of S77

(4) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

[joneshousehold]

There is an element of S127(3) as well if the creditor cannot supply the agreement to show it was signed and was in the prescribed format.

[The Phantom]

Hmmm...Ok. But if an agreement that simply isn't signed but is still present can't be enforced no matter what then surely an agreement that does not exist in the first place cannot be enforced either ? You need to remember that I am disputing joint responsibility for this debt unless they proove otherwise. If I never signed for it how can I be expected to repay it ? And if NatWest can't proof I ever signed for it how can they make me repay it ? There must be some physical proof that I agreed to repay this debt at the interest rate and under the terms they say I did. Otherwise they could just pick a name out of a telephone book and take them to court instead and see if they have any more luck there:grin:

It sounds as if you are saying it is similar like prooving to a judge a murder has been committed without a body. Difficult but can be done ? 8-)

Well, we will have to wait and see. NatWest may still discover the remains in their archives anyway

[lookinforinfo]

As you have already replied-would something like that do?[ Copy to the Judge of course.]

 

Dear Sirs,

I am writing again in response to your letter of the 2nd February 2007.

Your client poses that my defence is weak and that they think I should

attempt to mediate rather than contine-almost as if it was me who was

bringing the case to Court and not them.

 

As you may be unaware of the situation prior to the case,

permit me to bring you up to date.

My husband went bankrupt, leaving me nothing other than debts and two

wonderful children that I am now bringing up on my own following my divorce.

 

Whilst I was trying to come to terms with my situation, and at virtually my

lowest point, the bank began a process of bullying and threatening in order

to get me to repay my husbands debts. They were well aware of my situation

since I sent them an income and expenditure form. They continued to harass

me, and despite their assertion that I have not kept in touch, I can assure you that I responded promptly to all their letters, despite English not being my

first language.

 

In the end, I could take no further pressure, and upped my offer to repay

my husbands debts to £27 a month, despite this meaning that both myself

and children would inevitably suffer as my disposable income is only £500 a month for everything. The bank refused to accept this as sufficient and told

me that they would take me to Court to secure the debt on my house. This

was despite the fact that the bankruptcy company were holding the house,

and it had a negative equity of £30 thousand.

 

In truth, I was relieved that they were taking me to Court, since I hoped

that the Court would see that my offer that had been refused was too high.

 

You will forgive me therefore if I treat this offer to mediate with more than a

little cynicism. It was the bank who took me to Court to squeeze every last

pip out of me. It was the bank who has refused every offer to repay that I

made. In addition, almost ten days have passed since the stay was

mooted by the bank, and in that time I have not received a single letter

from them to suggest a way forward, or accept any of my previous offers of

repayment.

 

My defence may not be as strong as I would wish, but then I did not pick the

fight, nor did I choose the time. That being said, the position of the bank is

nowhere near as strong since I requested they produce the original agreement allegedly signed by myself and my husband. I suspect that their

request for a stay is more to do with buying time to locate the missing document than any new found concern for my situation.

 

However I am happy to be proved wrong and would therefore expect to see that the bank are willing to enter into meaningful discussions to call a halt to

the Court case thereby relieving me of the tremendous stress they have

imposed, and allow me to care for my children in peace.

 

Yours Faithfully

[lookinforinfo]

JHH, I agree that s77 does lay out a timescale for how offences occur, but

what it doesn't make clear is what happens in Nicoles' case.

 

And s127[3] makes clear it only applies where the signing has not been complied with, not where the agreement has not been produved.

[The Phantom]

I like the letter - thank you for taking the trouble to draft something for me

A solicitor would have charged me a fortune for that !!

Still no agreements or any other communication in the post today. Offence committed tomorrow and letter will be written and sent tomorrow as well after the postman has been through

 

Could I just recap at this point:

 

If there is no real mediation / arbitration and settlement in the time the case is stayed, i.e. until April and the case commences again : Does that mean NatWest first at all have to admit the offence and get a court order to proceed (either with no agreement or a late presented one however the case may be by then ?)

I still don't think they are really interested in any arbitration just the extra time they have been allowed. So if they find the agreement say in March, ask to lift the stay (or wait until the stay has expired) and then want to proceed with their claim, can I insist they get a court order to proceed first as they were in breach of the CCA ?

 

The judge has said in his order that there are three possibilities until April 7th for the parties

 

- the claimant informs him all has been settled and the case is withdrawn /closed

- either the claimant or defendant writes to him before the date asking to extend the stay but this must include evidence that mediation is still ongoing (for example through a statement / report of an independent expert or mediation service that is being used)

- both parties file new allocation questionnaires and send them to the court no later than 19.04. with an attachment indicating which aspects of the claim have been successfully settled through the mediation

 

Reading though this it seems the judge wants to make sure mediation really takes place or am I misinterpreting it.

[lookinforinfo]

I am sure that the Judge is well aware that the offer of mediation is a possible

delaying tactic, but He is almost duty bound I think, to allow the stay.

If the bank genuinely have misfiled the agreement, they will produce it as quickly as they can to mimimise the trouble they are in. It would be unwise of

them to try and then remove the stay as it becomes clear that their intentions were not to mediate.

 

If they cannot find the agreement, I can't see them wanting to go back to Court. If they do, then the Judge will I think, fine them etc before allowing

them to put their case.

 

If they do produce the agreement late, then the same procedure as above takes place.

However from your point of view, if they do find the contract, and you want to fight them still, that is when you go through the contract with a tooth comb.

One of the critical items on the form is the box reserved for "the amount of

the loan". Let's say you borrow £5000. On top of that there will be interest,

possibly PPI, a document fee and maybe an arrangement fee. So how much

is the loan? £5000 plus interest plus document plus arrangement fee? If the

wrong amount is entered the agreement can be voided. You might find the case below interesting Nicole, since there are many parallels with your own case.

A woman on her own v a finance house going for possession of her house

under the Consumer Credit Act-

McGinn v Grangewood Securities Ltd. [2002] EWCA Civ 522 (23rd April, 2002)

[The Phantom]

Thanks for that - I thought so much as that the judge may also have had an inkling about it, as he appears to be putting a lot of emphasis on the mediation part as if to make especially sure that mediation actually takes place. But I also appreacite he may not have had any other option than to stay the case as I have read somewhere that if only one party requests further mediation it is almost always granted. So be it.

 

Thanks for the tips. I will pursue the matter whether NW produces the agreements or not. I still have not had the opportunity to put together a counterclaim due to their SAR non compliance and I would also push the issue that spouses bankruptcy is not settled, so how do they know how much they will be getting from there ? At the moment they are claiming the whole amount twice as far as I am concerned. If agreements do show up tomorrow or any time thereafter they will of course be thoroughly examined. I may need your help with that when the time comes

 

I will go away now and hav a read of the thread you recommended !!

[payingonlyencouragesthem]

"I would also push the issue that spouses bankruptcy is not settled, so how do they know how much they will be getting from there ?"

 

That is a very strong point, possibly even your strongest point. I don't see how a court could decide what to award before the bankruptcy was settled even if the agreements were forthcoming. If you weave that emphatically into LFI's excellent letter (making sure also that you say you feel it's unreasonable to pay anything until you see that the agreements show you actually owe the money) then you may well be sorted.

[The Phantom]

OK, NatWest was obviously aware of the time limit expiring today for the CCA request. I have received a letter from their solicitors today which is a dramatic change in events. NatWest have committed a criminal offence, as still no agreements.

This is what the letter to me says and I need urgent advice on how to proceed, i.e. how to reply

 

"Dear Ms owe-a-lot

 

we write further to your letter of 01.02.07 upon which we have taken our client's instructions.

Our client is still unable to locate the signed loan account documents and has consequently taken the commercial decision to withdraw the proceedings against you.

This is conditional upon you withdrawing your Defence and that there be no order as to costs

 

We enclose a Consent Order for your perusal and signature if you are agreeable

 

Yours sincerely

 

The Disappointed Claimant"

 

*******

 

Then there is a form attached they want me to sign and return to them which reads as follows

 

"IN THE XXXXXX COUNTY COURT Claim No. XYZ

 

Between National Westminster Bank plc Claimant

And Ms Owe-A-Lot Defendant

 

 

ORDER BY CONSENT

 

By Consent it is ordered that

 

1 the Claimant withdraws its claim

2 the defendant withdraws her defence

3 the defendant acknowledges and undertakes that she will not pursue

any action (whether by proceedings or otherwise) against the claimant

in connection with the subject matter of these proceedings and the

conduct of the account subject matter of these proceedings

4 There be no order as to costs

 

 

Dated

 

 

.................. ....................

signed signed

 

Green & Co Defendant Ms Owe-A-Lot"

 

They have not signed it yet, but want me to sign first and return to them

It sounds as if they want to stop me from sueing them for compensation for what they have done to me

Why do I have to withdraw my defence ? Is that normal ? The judge said in his order the claimant can write to him telling him the matter is closed.

Why do I need to sign this ?

HELP !!

[payingonlyencouragesthem]

Ask them to confirm in writing that they are not reserving the right to make any further claims against you in respect of this debt, and that they will not assign any such rights to a third party. Then and only then, sign and return. Very interesting indeed that they withdrew on the grounds that they could not locate the agreement. Mr Jack Russell should add his paw print to acknowledge that he will not be pursuing them for costs with indemnities:D Congrats Nicole you have won.

[The Phantom]

I was very suspicious of this to start with, suspecting a rat hiding somewhere

Is it OK for me to withdraw my defence ? I suspect it must be as they are withdrawing their claim.

Maybe it is correct then to say no agreement = no debt ? To be honest at this point they must admit to the offence and pay a fine in order to proceed with their claim to start with. Considering the amount claimed in total it would still have made sense for them to do that but they must believe that they would struggle without the agreements and going through a full proof trial with no guarantee they would win in the end might have tipped the scales. Even if they would win in the end , what is the best they could hope for ? £1.- per month and a charging order on 50% of nothing ? Maybe they thought that's not worth it.

[The Phantom]

Ask them to confirm in writing that they are not reserving the right to make any further claims against you in respect of this debt, and that they will not assign any such rights to a third party.

 

Could that be included as a point no 5 in their form ?

[lookinforinfo]

Calm down Nicole-you have won!!1

There is no compulsion on you to respond tonight. I wouldnt accept their

conditions but work out what it is that you want.

Despite the fact that they are making no offer of costs, it has obviously

cost you money and time and effort [not to mention heartache and worry]

to conduct your defence this far. And now that they would face a hefty

fine if it went to Court and more than likely you would be able to recoup some of your costs if their case was decided as unenforceable. Of course they

have lost the possibility of getting their loan repaid.

I would send them your requirements for a settlement.

 

Such as an undertaking.that even should they find the agreement in future,

neither they, nor their agents nor any assignor pursue you for the debt. And

that if it does happen, you reserve the right to take them back to face

sentence for their non compliance of the CCA request.

 

That the debt is to be permanently removed from your credit file and no blemish is to left on your file, or added to it at a later stage.

 

In the light of the strain and worry of the case and their pursuit of you prior

to the case, a satisfactory ex gratia payment and an apology be made.

Then you will agree to drop etc etc.

Or something along those lines that gets what you want.

 

One thing is for sure-you will be going to bed tonight with a big smile on your face.

[joneshousehold]

Wow, Nicole - CONGRATULATIONS!

 

A very good job, very well done. Excellent news.

 

I shall share a virtual celebratory drink with you tonight

 

Cheers

[The Phantom]

Yes, I still can't believe it really. After all this they just say , hey, never mind, no offence and please don't sue us for what we have done, OK ?

Reminds me a bit of Monty Python's Holy Grail and the black Knight where he lies on the floor with no arms and legs and shouts after the other guy, "We just call it a draw, OK ?"

 

I will take a deep breath and think about it and then reply. I was wondering about the default they have registered against me. If they have no agreements surely they should remove the defaults now.

 

Well looks as if we are into some form of negotiation / arbitration after all

Of course I don't want to appear too pushy now, considering the amounts involved this could easily equal a lottery win for me just as it stands and if they agree not to pursue me again or sell the debt

[joneshousehold]

To be honest Nicole if they have capitulated so totally on this I would suspect it's because they are so much on the back foot that they are in danger of falling over. I would expect you to be able to get something more out of them. Especially given that they are waiving something they were previously adamant they had every right to demand from you.

 

Personally I would hold on for a few days and think about the best case for you and then what you are prepared accept which is presumably somewhere between what you want and what they have so far offered.

 

I wonder now, in the light of this latest revelation if your husband's bankruptcy is also in doubt. Just a little though that runs through my mind......

 

Anyway what about that glass of wine, are you ready for a refill?