Hi,

I took a loan from Natwest in 2007 for 5years but couldn't keep up payments from Feb 2009. I entered a debt management plan with all my creditors in August 2009.

In May 2012, Natwest passed it to Shoosmiths Solictors who filed for CCJ which was granted in May 2012 (but I came to know about it 10months later). I am still making payments as part of debt management plan which is expected to last for another few years.

On my credit file, Natwest Loan is still showing and it is not in default. It shows as I am missing payments each month. I contacted Credit Reference Agency who contacted Natwest but they were told that it is correct information so it should not be removed.

I contacted Natwest by phone who said they never issued a Default so they cannot remove it from my file. They also said that they do not remove it until it is fully paid (which sounds very strange). I read somewhere (not sure where) that if there is a CCJ then creditor has to issue a default before CCJ date.

I am not sure where to start and who to contact and what to write. I was expecting default to be issued when 3-6 consecutive payments were missed but don't know why it is still there.

I will really appreciate if someone can guide me.

Many Thanks

First of all I'm interested that you had some kind of repayment plan agreed with NatWest as part of your DMP and yet they went ahead and sued you for the outstanding balance.

Why would that have been? Had you not kept up the agreed payments or something? Had you breached the terms of the DMP?

If you could let us know more about this then we can go forward and try to give you some advice.

Thanks BankFodder.

No, I did not miss any payment. I am not sure either why they did this as this CCJ made my life hell.

CCJ is now due to come off my file in May 2018 but as there is still this Natwest Loan (missed payments) entry so it will continue to wrack my credit history even after CCJ is dropped off next year. I am now clueless what to do.

now the beep did shoo's get a CCJ you knew nothing about.

had you moved and they filed to an old address?

now the beep did shoo's get a CCJ you knew nothing about.

had you moved and they filed to an old address?

Yes I did change address around the time and I could have successfully argued to set CCJ aside and pay the debt in full. But I did not had funds to pay off so I did not take that route. Now my concern is not CCJ. It is the Natwest Loan overdue payment entry on my file which should not be there. If you can help with that then that will be greatly appreciated.

Well unfortunately as soon as you go onto a DMP, the bank are entitled to place an entry in your credit file.

I'm not sure that there is much that you can do about that.

On the other hand, if you had a settled agreement which you are honouring to repay them at a certain rate under a DMP, then by deciding to sue you, they are effectively breaching that agreement and I would have thought that that at the very least was the basis for having the judgement set aside. However, another approach – and more interesting – and probably cheaper – would be to say that they have treated you unfairly and to think about attacking them under the FCA BCOBS regulations. These regulations which replaced the banking code of practice in 2009 place of statutory duty upon the bank to treat you fairly. I would have thought that an example of reneging on a DMP agreement is a very good instance of unfair treatment.

I can tell you that from our experience so far of bringing BCOBS claims against banks, they tend to go to quite extraordinary lengths to avoid them and to avoid a judgement. Potentially a BCOBS judgement is a serious matter for a bank because it would allow you then to take the judgement and send a copy to the FCA as part of a complaint.

Not many people have started BCOBS claims and so far the ones that have been started have never come to fruition but this is because once the papers are issued, the banks start caving in very quickly adding one or two cases offering much more than the value of the claim in order to avoid judgement.

I think it all depends on what you want to do.

When the NatWest obtained a judgement against you, what did you actually change? Did you start paying them more money or did you simply continue the DMP repayments at the same rate?

at the time you entered into the DMP

it was in the ICO rules/guidelines that a creditor must default within 3-6mts.

as for the CCJ, yes must be default first

Default notices, litigation and section 127(3) of the Consumer Credit Act July 2010

.

For a creditor to enforce a credit agreement against the debtor,

he must serve the latter with a default notice,

this notice must be served in accordance with section 88 of the Consumer Credit Act 1974 (CCA).

.

Generally, the prescribed form of a default notice according section 88 is as follows:

.

"The default notice must be in the prescribed form and specify

.

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it

and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach,

and the date before which it is to be paid."

.

Section 127(3) of the Consumer Credit Act 1974

.

Should the debtor be sued for the outstanding amount,

it may be open to the debtor to raise an argument that the agreement is unenforceable

because it does not comply with the requirements of the Consumer Credit (Agreements) Regulations.

.

Agreements executed before 6 April 2007 are subject to sections 127 (3) & (4) of the Consumer Credit Act 1974 ('CCA').

Agreements entered into after that date are not by operation of the repeal under the Consumer Credit Act 2006.

.

The effect of sections 127 (3) & (4) truly displays the paternalistic nature of the CCA, in that where a breach of a prescribed term under regulation 6 and schedule 6 to the Consumer Credit (Agreements) Regulations 1983 is found, the agreement as a whole will be irredeemably unenforceable.

.

In other words, the lender cannot enforce the agreement or realise any surety under that agreement; the debt in effect is written off.

Regards

Andy

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

Yes, unfortunately the default rule is never particularly been enforced, and now the guidelines have been rewritten by the credit services industry and simply approved by the ICO and those revised rules now say that the default is not necessary.

I think that this simply reflects existing practice. However, it would certainly be another good basis for claiming unfair treatment.

It seems to me that a fairly assertive way of dealing with this would be to bring a BCOBS action and then settle for removal of the CC J, a return to the terms of the DMP – and maybe some compensation.

Did you tell us how much there is left on the NatWest debt?

Also, if the CC J was removed, you could then put in a statutory quest for a CCA and if that was not forthcoming, then the whole thing will become unenforceable.

Once again, the real question is what would you be prepared to do about it? It all depends on how aggressive/angry/persistent/ambitious/dogged you are prepared to be about it.

Just to add, you could of course apply for set-aside – notwithstanding the time which has passed, but the outcome of this is less certain, it would cost quite a lot of money – at least £155 – and I'm not sure at the end it would get you anywhere.

An action under BCOBS would be far more interesting. You will claim a very modest amount, say, £100. The cost of being the claim would be only about 30 or £40 – although you would have to pay a hearing fee if they decided to try and take you on.

There is big chance that they would bottle it because of the significance of having a BCOBS judgement.

Once again, just to emphasise that this is all fairly experimental because for some reason rather very few people are prepared to take a BCOBS action. The fact that we seem to have remarkable results when BCOBS papers are issued is really just anecdotal, but it is starting to look slightly more than a coincidence that the banks are prepared to go to such lengths to avoid a court case on the basis of BCOBS