Natwest/Shoosmiths CC summons - CCA already received.

[Antonio&Shylock]

:confused:Hi there

 

I have read through a number of the threads dealing with Northampton CC summons but my situation is a little different and so I though I'd post a thread, as it's important to defend myself properly.

 

I have a loan with Natwest, in excess of £5000, that I defaulted on some time ago. It was passed on to Shoosmiths who were quite aggressive. Anyway I requested a copy of the CCA and all other details directly with NW which put the account on hold. At the beginning of January I received a photo copy of the original agreement. Since then I have received no contact from Shoosmiths except the claim form from Northampton CC today.

 

I do owe the money but I have no ability to pay them as I'm currently unemployed, hence the original default. I do however own a property. I have tried to raise cash against that but with no income I'm in a catch 22. I fully intend to defend myself but need to know how to best go about this. Can you help please?

 

As an aside I have made a claim against Natwest for £4,000+ in unfair bank charges that they are ignoring due to the current stay. I have written back stating hardship and filled out their forms but don't hold out much hope.

 

So;

 

1. I will defend myself and get the claim seen in a CC near me.

 

2. Can I counter claim with the unfair bank charges even though they're on a different account with the same OC.

 

3. They only provided copy of CCA and schedule of payments, no other docs do I need to request default notice details etc.

 

4. The CCA docs seem good to me but I need them checked by some one who knows what they're doing. Or some docs to cross reference how they should have been completed.

 

5. It's my understanding that they can't take my house, as my parents live there and I really really musn't put them in jeopardy. It's also my understanding that at worst a judgement would go against me and a payment plan based on ability to pay would be decided by the CC judge.

 

I want to check these details and be sure of my situation.

 

All help gratefully received.

 

Regards

 

A&S

Edited February 11, 2009 by Antonio&Shylock
Add CCA docs

[Antonio&Shylock]

Just a quick couple of additions to my previous post. I am being taken claimed against via Northampton CC and more importantly I can find no way of posting my CCA docs in a decent size. If you want to look at them then PM me and I'll send them as a Powerpoint presentation, I can only read in adobe and not create files.

 

Thanks

 

A&S

[DocH]

Hi Antonio&Shylock, the images are way too small to read.

 

Scan it into your computer and open it in Paint or similar program. Edit out the personal information and save it. Open an a/c on Photobucket, (here: Image hosting, free photo sharing & video sharing at Photobucket ), download the file of your scan from your computer onto Photobucket and then copy and paste the IMG Code link from Photobucket in your thread here.

 

Have a look at this tutorial for photobucket

Photobucket Video Tutorial

 

It would also be helpful if you could type up the Particulars of Claim (POC) exactly as they appear on the N1 form from Northampton.

 

You'll not be able to counterclaim your bank charges against this claim I'm afraid.

 

There is a letter you can send to the claimant to get copies of all the documents that they will rely on in their claim against you. I'll post that up once we've taken a look at the POC.

[creditcardmug]

Hi, you can upload the docs to photobucket and paste the link into your post.

 

What date is on the claim form?

 

Have you had a Default Notice?

 

1 as the case progresses it will be transferred to your local court

 

2 i wouldnt try to counterclaim in this way even if you could, which i doubt

 

3 they dont have to provide a copt of the DN in your CCA request, dony worry you will put them to strict proof in your defence

 

4 cant read it

 

5 thats basically right, as long as you dont default on a ccj, they cant do anything else.

 

Doch beat me to it..lol

[Antonio&Shylock]

Ok thanks for that.

 

The link is; Pictures by ASphotos11309 - Photobucket

 

The particulars are;

 

The defendant (D) held the accounts listed below with the claimant ©. D failed to pay the sums due to C when demanded and the sums listed below remain outstanding

 

a/d details loan 11348.63

a/c details o/d 595.26

 

It's signed by Jim taylor of the claimants solicitor. (Shoosmiths)

 

Issue date for the claim is 10th Feb. 2009.

 

I did receive a default notice on the 27th September giving me until 15th October to pay arrears or the outstanding balance will be sought. The o/d default can be claimed to be due to unlawful charges. I'm not sure how to defend the loan. Ultimately at the very least I want to be doing this face to face with the local CC judge. Therefore I get a much better hearing and judgement.

 

Is that enough or do you want me to scan the N1?

 

Thanks

 

A&S

 

Further details that may be important.

 

The Claimant is Natwest Bank, all docs, correspondence etc is to be sent to Shoosmiths.

[creditcardmug]

Wow, thats an awful lot to pay back when your only borrowing 5k

 

No dont scan the n1, but post up the DN if you can

 

Was the PPI missold?

[Antonio&Shylock]

It was a consolidation of CC debt onto an existing loan of 10K. I'm very very surprised that I took loan payment protection as that's a bit of a [problem] but my signature is there. I did cancel that at a later date and got a rebate. There are so many strings attached that they ever pay out.

[creditcardmug]

If 2 & 3 are the front and back of the same piece of paper its probably enforceable, so we need to see if the DN is valid.

[DocH]

A&S, you should blank out the amounts on the agreement form as this may help to identify you.

 

Your agreement, when signed, was a multiple agreement so it may be worthwhile having a read of this thread:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within.html

 

If you've got any questions than ask on that thread with a link back here so that people can view the agreement.

[Antonio&Shylock]

I'm been thinking why it's so much. Firstly I seem to remember expressly NOT wanting payment protection I'm really not sure how it got on there. I also remember him saying he'd fillout some details later but surely the monthly payment I would have asked for and confirmed before signing. I can't believe he or I'd be that stupid.

 

What I need to clarify is if the £13527.68 figure for my outstanding loan balance, that was consolidated, already included the interest charged. I'm sure it did because I initially only borrowed £10k. If that's the case I've been charged interest twice because they put another 6.8% annualised for the new amount which includes that figure. That is really not on. Does that make sense?

 

I will put the DN notice on in the next hour.

 

Regards

 

A&S

[Antonio&Shylock]

The original loan was taken out in 1999 and was for 10k. I need the CCA for that loan as I really need to check that figure as it seems high and will already include interest. What are my rights if they can't produce the original?

[Antonio&Shylock]

Updated with default notice - Pictures by ASphotos11309 - Photobucket

 

Regards

 

A&S

[Antonio&Shylock]

I've read the multiple agreement thread and it's very complicated. Ultimately it means that the most frequent CCA supercedes all the previous ones which makes sense. However I am still entitled to challenge the original balance as this was not explaied to me at the time and is not detailed in the new agreement surely.

 

This stuff is very comlpicated and really quite technical and so all help gratefully received.

 

Regards

 

A&S

[creditcardmug]

AS we need the date of the DN pt2

[Antonio&Shylock]

Isn't it stated as the 15th October? So in effect the first part states the default notice date as 27 Sept and the second, that was part of the same correspondence sent on the 27th Sept, that action has to be taken by the 15th Oct.

[creditcardmug]

Ah so they sent the letter of intention to issue a default notice in the same envelope as the actual DN...but the DN itself is not dated...i suspect they wont get away with this...its a new twist, i havent seen that one before:confused:

[Antonio&Shylock]

Ah so they sent the letter of intention to issue a default notice in the same envelope as the actual DN...but the DN itself is not dated...i suspect they wont get away with this...its a new twist, i havent seen that one before:confused:

 

I've checked my correspondence again and I have a letter dated 3rd Nov 08 that states I've failed to follow the DN under section 87(1) of the Consumer Credit Act 1974.

 

It demands that I pay the balance by 11th Nov or they will etc etc etc.

 

I'll scan at put it up shortly.

[creditcardmug]

For your reference,

 

87. Need for default notice.

— (1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,— (a)

to terminate the agreement, or

 

(b)

to demand earlier payment of any sum, or

 

©

to recover possession of any goods or land, or

 

(d)

to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

 

(e)

to enforce any security.

[DocH]

This is an extract of Schedule 2 of the CCA, which relates to the prescribed format of a Default Notice:

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

[Antonio&Shylock]

This is an extract of Schedule 2 of the CCA, which relates to the prescribed format of a Default Notice:

 

 

 

They seem to have fulfilled those criteria.

[Antonio&Shylock]

They seem to have done the DN in order. I may be able to use the multiple agreements clause of section 18 but that's a different issue.

 

What I need to know is how to query the £13000+ figure on my CCA (of 2004) as its doesn't seem right and hasn't been explained. Neither has the payment figure been split up and fully explained. To do that I need the original CCA from 1999 to understand. Can I use that as a defence? If they then cannot produce that document then is that part of the loan unenforceable? It is more than the balance presently on the account and so would mean they can no longer chase me. Also how do I question their interest calculation in my defence? I think they've included interest in the £13000+ figure up to the end of the original agreement say in 2006 (which I don't know without the original CCA) when I resigned in 2004. If that's the case they're then adding 6.8% interest from 2004 on to balance with interest already included up until say 2006. So they're double counting interest for two years, in effect charging me approx 13.6% for those two years. That I'm pretty sure they can't do and so would invalidate the agreement.

 

Are there any precedents or templates I can uses as I need to think about filling a defence by 29th Feb.

 

Kind regards

 

A&S

[shakespeare62]

Correct me if I'm wrong - but I think the agreement mistakes the amount of credit :-

 

The amount of credit figure 2(a) + 2(b) + 2© is misstated as £19,500.

 

If you add up 2a + 2b + 2c they come to £24, 278 NOT £19,500

 

Interest of £ 6,135.04 is then added to the actual credit amount £24,278 to give £30,413.04.

 

I believe mistating the amount of credit renders the agreement UNENFORCEABLE under the Wilson Ruling in the House of Lords (more on that later).

 

Note: please confirm that there is a "2" indicating section 2, in front of the agreement part headed "Purpose and Amount of Credit" which has been missed off your scan.

Edited February 14, 2009 by shakespeare62

[shakespeare62]

Basically the amount of credit quoted £19,500 + interest £6,135.05 Does NOT add up to £30,413.04 !!!!!!!

Please re-scan this agreement so we can see in detail all the section numbers. This will be important for your defence.

 

I believe this whole agreement is unenforceable (we'll need second opinions)

[shakespeare62]

There will be other issues also, Regarding it being a multi part agreement and the separate parts are missing prescribed terms (Amount of interest to be paid for Each part). Omitting the prescribed term of interest amount for the separate parts - would also render them unenforceable

 

Here is a snippet from my posting on the following link, it helps identify the different separate parts in relation to multi agreements. Note: my posting was adapted from a previous one by Elizabeth 1

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within-37.html#post1970651

 

The parts of the agreement must be treated as separate Agreements.

 

By Virtue of section 18(2) of the Act the Agreement must be treated as if it were separate Agreements falling into the following categories :-

 

1. The Loan Insurance for £XXXXX should be treated as if it were a separate regulated restricted use debtor-creditor agreement for fixed sum credit within sections 8, 11(1)(b) and 13(a) of the Act
   

 

1. The Advance paid to discharge the prior debts in the sum of £XXXXX should be treated as if it were a Separate regulated restricted use debtor- creditor Agreement for fixed sum credit within the meaning of sections 8, 11(1)© and 10(1)(b) of the Act.
   

 

1. The cash balance for my own use in the sum of £XXXX should be treated as if it were a separate regulated unrestricted use debtor - credit agreement for fixed credit within the meaning of sections 8, 11(2), 13© and 10(1)(b) of the Act.
   

[Antonio&Shylock]

Correct me if I'm wrong - but I think the agreement mistakes the amount of credit :-

 

The amount of credit figure 2(a) + 2(b) + 2© is misstated as £19,500.

 

If you add up 2a + 2b + 2c they come to £24, 278 NOT £19,500

 

Interest of £ 6,135.04 is then added to the actual credit amount £24,278 to give £30,413.04.

 

I believe mistating the amount of credit renders the agreement UNENFORCEABLE under the Wilson Ruling in the House of Lords (more on that later).

 

Note: please confirm that there is a "2" indicating section 2, in front of the agreement part headed "Purpose and Amount of Credit" which has been missed off your scan.

 

 

Hi shakespeare62

 

I can't do that as it was photocopied very badly at source and that bit has been cut out. I can confirm that the text says 2(a) + 2(b) + 2© then the amount £19,500. It would follow that section 2 is Purpose and Amount of Credit and that section 3 is 'The Credit'. See below.

 

section 1 - Parties to agreement

section 2 - Purpose and amount of credit

- Insurance loan = 4779 (apparently but the figure 19500 is there also)

section 3 - The Credit = 19,500; 2a + 2b + 2c (this should be 24,279 see below)

section 4 - Interest = 6135.04

section 5 - Admin fee = 0

section 6 - Total charge for credit = 4+5

Section 7 - Total amount payable = 3+6

 

Total charge for credit (4+5) is 30,413.04 on the form but equals 6135.04 using figures on form.

 

Total amount payable (3+6) is 30,413.04 on the form but should be 30,414.04

 

Indeed you're right 2(a) + 2(b) = 19,500

then add in 2© of 4,779 = 24,279

 

Then add in interest of 6,135.04 = 30,414.04 (not 30,413.04 as stated)

 

The bold is my best guess as to the missing text. They're not icluded the PPI in the 'The Credit' balance which has screwed up the figures though he comes to the right figure at the bottom. Will that help?

 

So to summarise;

 

They filled out incorrectly;

 

Section 2© - as it reads 4,779 & 19,500 and so is not clear.

 

Section 3 - This should be 24,279 and not 19,500.

 

Section 6 - My best guess is that this should be 6,135.04 and not 30,413.04. Otherwise I can't make sense of the calculations

 

Section 7 - This should be 30,414.04 and not 30,413.04. Pedantic I know but let's get it right where they can't.

 

I've just revised this and I'm confident that it makes sense now. Shall I contact Shoosmiths and ask for a better copy of the CCA? Or shall I leave it?

Edited February 15, 2009 by Antonio&Shylock
2nd Revision