Penfold V Barclays (Woolwich) No agreement and taken to Court

[Penfold92]

Is there anything on your credit file that would prove them wrong, i.e. that date of settlement or satisfied etc

 

 

No this is so old it dropped off the credit file a long time ago. The point being they claim it was settled in 2005 and I assume they mean when the DCA stopped collectiong because of my IVA. However, this was not a formal settlement of the debt this did not occur until I settled my IVA early this July! Woolcih's debt was not settled though as they did not claim.... So in realiity unless they have just decided to give up it is actually still outstnading..tecnically anyway...

 

Penfold

[lookinforinfo]

But what do you suspect is the meaning of:

 

"It is the Defendant’s intention to make submissions to the effect that the Claimant’s debt to the Defendant was discharged at the time of his request under section 78 Consumer Credit Act 1974 and consequently there was no requirement on the part of the Defendant to comply in order to determine whether or not there was a regulated credit agreement enforceable retrospectively."/QUOTE]

 

They are still saying that the debt was paid off by the time you made the CCA request and as such, legally, they were under no compulsion to provide the agreement.

Had the debt been written off, then there would have been an amount outstanding, and so they would have had to comply with your CCA request .

[Penfold92]

So it is pretty much as we were really. Do you think if they do actually turn up in court and say this the Judge will agree to ask them when did they confirm this to me? Also if they do try this slant, surely giving up a debt for the sake of not producing legal docs could be classed as a very dodgy agreement and I could argue under the 2006 ammendments that "please Your Honour class this as an unfair agremement"? That is what I will be trying anyway...I recon it may just work, if nothing else I believe a Judge (I obviously could be wrong) would grant me costs as I have had to go to all this trouble to find out they did not have an agreement and they have dismissed the debt just to get out to proving it existed...But then why have they asked for more time...I just do not understand as they have not asked the hearing to be moved so not real advantage to them...

 

Penfold

[gumbobriggs]

I *am* a complete newbie to all this, but the way I've just read a few things on this thread:

 

 

They have said they have no records for your account, but are now wanting extra time to get some from their archives?

 

 

did I read that right?

[lookinforinfo]

The only way they can get out of failing to provide the executed agreement

is by proving the debt no longer existed at the time of your CCA request.

If you read my last post closely you would have seen that if they have

written the debt off in any shape or form, the debt still exists-it cannot just

disappear. As the debt still exists, they have breached the Act.

 

I suspect that the reason they have asked for more time, is so they can

check their records way back when they thought you had cleared the debt.

Perhaps their bookkeeping entry at the time may not reflect the true situation,and/ or your continued assertions that you still owe them is giving

them second thoughts, so they are rechecking their archives to see what the situation was.

 

If they find it, you might still get a settlement something along the lines of

what you asked for. Let them have the time. The only thing you don't want is for them to find the proof that they were right all along.

[Penfold92]

Thanks mate,

 

I see what you are saying, well there is no chance that the debt was settled that is for sure so sit back and wait for the hearing then...

 

Penfold

[lookinforinfo]

Wouldn't it be wonderful to be a fly on the wall when they find the old accounts and discover you are right...... and they have asked the Court for more time to disprove your version..................hmmmm. Do you think they will want to appear in Court, or do a deal with you?

[Edz11]

Small point, but they seem to be insisting that as the Agreement is paid off they don't have to comply with S77 etc. Well, I've just read it again and it doesn't give a time limit. It just says that the creditor of a regulated agreement has to supply a copy of the agreement. There was one and they have to supply it.

 

If they are correct then all a dodgy creditor has to do is terminate the agreement and - Voila! - no agreement exists and there's no need to send a copy. (But you still owe us money and we don't have to tell you how we've worked it out!!!).

 

I don't think that's a reasonable interpretation of the Act. There isn't a time limit or circumstance under which they have no obligation to provide a copy of the agreement shown anywhere in CCA 1974...

[lookinforinfo]

Edz if you reread S.77 [3] it does say that supplying the executed agreement

does not apply when there is no longer a debt.

 

But by your analysis, if the creditor does terminate an agreement then there

is no debt, and as there is no agreement there can be no defaults on the

credit file etc. so it is not such a good idea from the creditors point of view.

Plus they would still have to account for the debt in their own books to the

satisfaction of the auditors which could lead them into all sorts of bother.

[Edz11]

I'd misread it in the context of this case. The argument being a sum

is, or will or may become, payable as part of the IVA. So there being a duty to supply one.

 

Termination IS a double edged sword.

[lookinforinfo]

You are spot on Ed. Everyone but the bank can see it.

[Penfold92]

Hi Edz, and thanks for your input.

 

So to clarify once more for everyone...

 

I had a supposed debt of £700 odd from a long long lifetime ago...I was paying this and then in 2005 due to circumstances out of my control the best option was to enter an IVA. This debt was entered into it and file at the Court.

 

In 2007, before I settled the IVA early, I wrote to the DCA that was collecting originally to CCA them. They replied to say money was outstanding, but the file had gone back to Woolwich. I wrote several times to clarify the whole situation and basically was told they did not have any docs for this debt. I todl them not to collect from the IVA and they did not as when my IVA was settled they did not claim a dividend.

 

However, during this process a debt did supposedly exist and they have not provided the docs to prove this debt, nor any documentation whatsoever regarding the debt. I still do not know what it was for, how it came about or anything.

 

I am asking them to return all monies and interst thereon as a result. Cheecky and most people do not think I have a hope in hell. My arguments are simple and can bee easily seen within this thread. Their defense is wrong and I can prove the debt was not settled in 2005 and should have been settled in July this year, BUT was not as they did not claim therefore it still exisits...

 

We'll see what happens and drops on the doormat....fialing that I am lolking forward to my day in court on this...At least they had the decency to not claim a final dividend, unlike greedy NatWest who are unreal...Different thread so I will not go there...

 

Penfold

[alanfromderby]

It will be interesting to see what happens, and I do think you have done all you can to put them in a difficult position. However, it is vital that you get a district judge that understands the complexities of the CCA - otherwise I fear that any well-briefed solicitor will be able to put forward a persuasive case.

 

I had a hearing in September where CCA section 77(1) issues were raised, and the judge concerned was not even aware of this legislation, and it's potential consequences. To be honest, my argument was a last resort anyway, and was used in a different context to what you are doing, however it is certainly something to be aware of when you have to argue you case in court.

 

On the issue of retention of records, I understand that Woolwich are now searching out the records. However, I would say that their reading of the rules on retention are flawed.

 

According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years. As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreeemnt/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

This interpretation fits in with Inland Revenue rules that state that prime documents need to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years.

 

Now...having said all that, I am convinced that somewhere within the banking regulations there must be a definitive answer to the question on retention of banking records. Whether it be hidden deep within some Act, an SI, or a Bank of England rule, I don't know - but I am convinced it is there somewhere.

[Edz11]

Well the 2003 Money Laundering regs are a start;

 

If they haven't any record they will be in technical trouble...

[alanfromderby]

Cheers - Section 6(3)(a) would seem to suggest that full records need to be kept for five years after "the relationship ends".

 

Obviously this did not come into play until 2003, but since the Woolwich are claiming that this agreement only ended last year (notwithstanding the dispute) they would still legally have to hold the original documents.

[Penfold92]

Guys you are all troopers... This has been my arguement the whole time, it is just not good enough to say "too old, no records" It opens a huge can of worms...If the Courts cannot see it then the FOS, OFT or someone surely will...

 

Thanks again,

 

Penfold

[Penfold92]

Further to the last few mails, I feel it prudent to get somethign before the Judge, just on the off chance Woolwich come up with some rubbish they wish to try to defend with. How about somethign like:

 

The Court Manager

Luton County Court,

2nd Floor,

Cresta House,

Alma Street,

Luton, Bedfordshire,

LU1 2PU

19/11/2007

Dear Sir,

RE: Claim Number: 7LUXXXX – Penfold V Woolwich

I, the Claimant and litigant in nature, refer to the claim as detailed above and specifically the order made by district judge Gill dated 21/09/2007.

 

I wish to inform the court that the defendant wrote to me informing their intent to apply for extra time to file their evidence. As I stated in a previous letter I could apply pursuant to Rule 3.4(2)© of the Civil Procedure Rules to strike the defence out for not serving any documents to support its defence and wasting the courts time by the abuse of the process, however, I will not. I am happy for the Defendant’s council to get their evidence as that is all I asked for originally. I do, however, fail to see why it has taken so long for them to do this and given me no option, but to take the court route.

In any event I do wish this passed to the Judge before the hearing due on the 20th December 2007. I can only hope that the complexities of the Consumer Credit Act can be seen and it understood that whichever angle the Defendant wishes to come from there are breaches everywhere. I would like to point out the following and His Honour may wish to check I have got my facts rights on these points prior to the hearing:

• According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years. As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.
  
• This interpretation fits in with Inland Revenue rules that state that prime documents need to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years.
  
• Section 6(3)(a) of the 2003 Money Laundering regulations would seem to suggest that full records need to be kept for five years after "the relationship ends".

Therefore I hope His Honour will see that even if any statements or original agreements are found under the Rules of the CCA, or Money Laundering Regulations or Companies Act the Bank should have maintained proper records and supplied them on official request in a timely manner. Their actions and letters only infuriated me and forced me to take legal action to resolve my queries.

Yours faithfully

Penfold

[alanfromderby]

okay...now found the relevant legislation to back up the Inland Revenue information. It is schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

[Penfold92]

They are facing a torrid time from the Judge, possibly a hefty fine and a

complaint by you to the OFT. It comes to something when a multimillion pound organisation cannot get its own figures correct.

 

Hi Lookingforinfo,

 

In your opinion should I approach OFT now or after hearing or cheque? I have not gone that route and feel that perhalps I should start now?

 

Thanks,

 

Penfold

[lookinforinfo]

Oh dear Penfold, you have got one of the Gods on your thread, [Alanfromderby]and you are coming to me for advice.

 

I have said all along that ideally you want this sorted before the hearing. It

is a question of getting your bank to see their mistake [big blunder really].

They appear particularly obtuse at the moment. Hopefully the closer they get to the Courtroom, the better your chance of getting what you want providing

you can prove that you are right.

If you can't do that before the hearing, though your bank will be in hot water, you can kiss your settlement goodbye.

 

And going to the OFT will perhaps lessen your chances of doing a deal with your bank. It will be the threat of going to Court and losing that will give you

the possibility to negotiate. And at the moment the bank are pretty sure that

they will win-although they may be having doubts now.

 

I would be inclined to leave the OFT out of it until after the case. Their

rulings appear to be getting more bizarre each day and if they do find on your

behalf I feel you will probably lose the chance of a settlement since the OFT may well take over and leave you out of the equation.

[Penfold92]

LOL,

 

I know, but you also know how it is and you want all the reassurance that you have done everything you can and in the right order etc...

 

Let's hope,

 

Penfold

[lookinforinfo]

I know.

 

However, if you can dig up something to prove to them that there was still an

amount outstanding all those years ago, that would be your best bet.

[Penfold92]

I know.

 

However, if you can dig up something to prove to them that there was still an

amount outstanding all those years ago, that would be your best bet.

 

 

Hey mate, you know I have already done that so this is all beyond me now. I can understand if they asked the court to delay the hearing....you know to delay paying out or seeing if I drop it etc, but to just apply for more time to submit worries me, but then I know they cannot have this as settled as it is not settled... I am curious to see what drops on my doormat on the 23rd as that is the new agreed date by the Judge for them to submit their evidence bundle.

 

Oh well,

 

Prabs

[Having_A_Knightmare]

Hi Penfold

 

With out reading your thread all the way yhrough(at Work) Where you up to on this.

 

HAK

[Penfold92]

Hi Penfold

 

With out reading your thread all the way yhrough(at Work) Where you up to on this.

 

HAK

 

Well their evidence bundle was due back in early October and they did not file. They recently wrote to the court to ask permission to do this by tomorrow. I did not obget and the Court has allowed this to happen. Court date 20th December...In time for Xmas...LOL

 

Penfold