if they take you to court, they would have the initial burden of proof.

So am I right in thinking that if I asked them in court to prove it - and they coudln't, but I couldn't come up with account opening details either - the judge steps in and says "on the balacne of probabilites, you have to pay up, case closed"

(nb in court J would determine things on balance re any evidence before it)

Well, I am not expert in the law - and civil courts are "balance of probabilities", but it is possible at various points in a court process to put the other side to strict proof. Now when this is possible is the problem for a layman to understand. Eg - if they sue me, and I am defending, and I say there was no contract - the judge would probably allow them to put me to strict proof, and as I have no proof, I couldn't prove it if I had to. Maybe it is when the judge feels that the point being argued is beyond the likely balance of probabilities that he will ask for strict proof? However, if as you say, I cannot prove it one way and they cannot prove it the other, the judge would decide on the balance of probabilities in that case. I will think of an alternative wording to my next communication with them.

NatWEst have a policy of stopping all charges on accounts that have been with the collections department for more than 32 days - I know as the RBS Group Executive Office managed to get the charges stopped for me - you need to email Gary STewart direct - see my other thread.

You could complain to the Group Executive Office, as I did, by email to Gary Stewart at RBS and you would probably get a minion to look into it - they ended up telling me the paltry info I had received was all they had - but they put £143 in my account as a goodwill gesture. See my other thread on Natwest O/D facility letters for details.

in post 117, I gave the bank's last reply to me. I have since received a statement of all transactions on the account since 2006.

However the bank's response indicated they have no overdraft facility letters or account opening agreements. And yet they ask me "to contact our Collections Team in order to agree the way forward".

Contacting the bank to arrange payment seems to be the final paragraph in every letter from them. But why would I do so when they have not demonstrated they have a legal contract with me? I asked them for account opening agreemtns, terms and conditions, O/D letters - and made it clear I was seeking to establish if I had ever agreed to the terms by which they are now conducting the account. As I don't recall ever agreeing to certain key conditions, including everlasting interest on a built up debt on an account that can't be closed down - I'm not sure they can take this supposed debt to court.

What do people think about my replying and saying "I am still waiting for you to show me where I agreed to the terms and conditions including several unfair ones by which you are managing the account now. As far as I can see, if you have no account opening agreement or overdraft facility letters, no contract exists, and I owe you nothing. If you disagree, prove it in court!"

Or is there another way I should word that? I want to know what documents, if any, they would rely on if put to strict proof in court, and they have consistently refused to clarify that point.

One good thing from the SAR - I see they don't have my current mobile phone number. Which makes life easier.

In fact, I would never give any bank or similar company my mobile number! Mobiles are for friends and family only.

Well, if it's a choice between paying the mortgage and servicing an old debt - I'm afraid the choice is simple. I'll pay the mortgage and won't live on a park bench as a result.

Surely they must realise few people engage them in long series of letters on the legal obligation to be fair to customers unless they are really desperate for a bit of relaxation of the financial pressure on them. I don't do this for kicks.

the problem is i doubt very very much that they would take it to court. They are fully aware that they are on sticky ground as they have no documentation.

if you fail to maintain the facility they will with draw it , default you and then let the hounds loose on you until you give in and pay.

the fact they hold no documentation is of no concern to them.

As for them being reasonable, banks dont do reasonable ! they make money by stuffing you ! the thought of freezing interest is an absolute no no.

what the law says and what the bank believe are two different things. They are pretty sure you wont take them to court, as you say yourself " there is nothing to contest" , so what are you trying to acheive?

You are aware they hold no paperwork but will it change anything? i doubt it will .

Its either pay up or we will destroy your credit files and make your life hell, unless you have loads of cash and a good brief to take them to court and try your luck putting them to proof.

Well, I read somewhere on CAG that you need to be careful assuming you can "put them to proof" in court, because the way the law works the person making statements in court is the one who has to prove them. If I sued NatWest, I am the one who would be put to strict proof - and I don't have account opening documentation either. So best to wait for them to sue me, and then, I will be careful not to make unsupportable statements in court, waiting for them to make claims over the nature of the contract between us (if any), giving me the opportunity to put them to strict proof. I can't make statements in court that I can't support - which is what suing them would require - but neither can they - which is why they may not go to court.

I own my house, albeit with a mortgage - one of the cheapest houses in the country - nothing grand - and I was in 6 months of arrears at one point - so credit file is already ruined and my credit rating is on the lowest level. So at this point in time, the credit file is my last concern. Mortgage is less than £60 a week - which I am managing at present despite the fact my work has gone down to about 1 day a week, and I go to the gym the other 4 days - so unless I get more clients cancelling I can stay where I am and won't need to be concerned about the credit file. The problem comes if I am once again unable to pay the mortgage, have to go on the JSA, go into arrears again, get repossessed, and then find that landlords won't rent to me on housing benefit due to my credit file. As long as I can pay my admittedly small mortgage, I can ignore the credit file.

It seems to me these banks just refuse to comply with the SAR request. Did you notice that Terms and Conditions were, according to their letter, not covered by the SAR request - but then I want to know if I ever agreed to any - and this is the bit they are cagey on. They would not have put £243 in my account unless they knew that there was something legally less than straightforward about their repayment demands.

Well, as far as I see it, if they don't have a copy of any agreements, there is no contract and no enforceable debt. At the very least, in such circumstances, freezing interest is reasonable - as I particularly object to the fact that once a large debt has been run up for whatever reason, you can't close the account and just pay off that debt - but they insist on the right to keep the account open and put interest on forever - I don't think I ever signed anything agreeing to that - and they can't show I did either...

Lets hope he gives you some good advice ... are you gonna pay up or contest it? i contested it thats why i got the default and they had to write it off as i wouldnt pay them.

 

i hope robcag guides you and helps you deal withese clowns ...

Well, I can't afford to pay at the moment, and there is nothing to contest, as it hasn't gone to court yet and there has been no default yet. As I am self-employed, it is difficult to say if my finances will pick up -but I only asked them to suspend interest for 6 months - it would be better off for them and for me if I can make some money and get on top of things. Surely they must have guessed from my emails to them that if this goes to court I will be looking for strict proof from them of a contract between us agreeing to unfair conditions - I don't believe I agreed to any of this and they have said they don't have the original details either.

In these circumstances, if I were them, I would have just taken a decision to suspend the interest for 6 months and give me a chance - as it is I have been in constant correspondence with them for 3 months, and they have ended up by cancelling the interest over these months anyway - so refusing to do so hasn't got them anywhere so far - although they have told me that is it in terms of suspending interest. If they were going to put £243 in my account for goodwill eventually anyway over the 3 months, why didn't they just create goodwill in the first place by giving me 3 mths interest free back when I wrote to them in September, instead of turning the communications into a legalistic debate?

James bond, I am hoping RobCAG who beat NatWest in court re: overdraft facility letters can respond to this thread.

Some new developments:

as I explained in November, I received an SAR reply (note: SAR request signed for on September 17th) that just listed basic info (my address and things like that), without overdraft facility letters or anything of the kind.

I received a second SAR reply dated 28th November that gave a summary of one phone call and a photocopy of two letters I sent the bank years ago.

Neither of these replies gives me a full data set for my account - and in particular, there are no overdraft facility letters, credit agreements, terms and conditions, account opening agreements, diary event history for the account etc.

But I have also received another reply from the Group Executive Office in response to my complaint (see message of November 15th above), refunding a further £143 in interest, but stating that I will not be getting overdraft facility letters or anything of that kind in response to my SAR request. The letter says:

The bank should have responded to your Subject Access Request within the 40 day time limit and I am very sorry that this did not happen. The bank has ben dealing with a large volume of requests and this has contributed to the delay in providing a copy of your information to you. While I note your comments and views, I do not agree that the failure to provide your information within the 40 day period is in any way a refusal to comply with the law. The delay is regrettable, and I do not agree that this constitutes unfair management of your account.

 

I am sorry that you found my comments about our commitment to treating customers fairly to be flippant, as this was certainly not my intention. We have a responsibility and a commitment to ensure that all customers are treated in a fair way. Of course this is an extremely broad statement, but it includes applying the same terms and conditions to customers who have exceeded their overdraft facility, and providing fair complaints and claims handling to all customers.

 

It is clear that you have been expecting the bank to provide you with information in your SAR that has not arrived. I am sorry that the information you have received has not met your expections, but I have been assured that you have been provided with everything that is available and that you are entitled to receive. Information is gathered by various units within the bank, and sent to you separately by each team and I understand that you should have received, in addition to the information sent to you by our SAR team, information from our Credit Card team and also information from our Credit Managemetn Services team.

 

You have asked specifically for a copy of applications and agreements that may relate to account XXXXXX. Our Group Records Management Policy allows for the retention of six years of personal data to be held and this is in line with the Data Protection Act (1998) guidelines. As your account was opened in 1990, we would not keep the application form as the information that was provided at that time woudl not necessarily be up to date (for example, in regards to marriage state, occupation, income, dependents, address). Another principle of the Data Protection Act is that the data we hold is up to date and relevant, and information provided more than 20 years ago is unlikely to be up to date or relevant.

 

The bank is not able to provide you with a copy of overdraft facility letters, change to interest rate letters or any other letters that are generated by the bank's computer systems, as we do not retain a copy of computer generated letters. You have asked for a copy of the original Terms and Conditions of the account but Terms and Conditions do not form part of your personal data under Section 7 of the Data Protection Act (1998). You also mention wanting a complete copy of the 'Diary Event History' for the account but we do not keep such a diary.

 

You mention that the overdrawn balance on your account is made up of interest and charges but the transaction history does not support this claim. As Rebecca Mair said in her letter of 19 October 2012 the outstanding balance on your account has been run up through general account use and although you have exceeded the overdraft limit and cannot use the account because no funds are available, this does not make the account dormant.

 

Since you raised your concerns on 27 September 2012 interest totalling £143.84 has been applied to your account. Charges that were applied in error since March 2012 have been refunded. A goodwill payment of £100 was applied to your account on 12 November 2012 in recognition of the trouble you have been put to in bringing your concerns to our attention. As a further goodwill gesture, I have arranged for your account to be credited with £143.84 to refund the interest amount that has been applied while your concerns have been investigated by this office. Any further interest that is accrued on the overdrawn balance of the account will stand.

 

As I said in my letter of 9 November 2012, it is important that you contact our Collections Team in order to agree the way forward. Please contact them as a matter of priority on telephone number 0845 303 9015. Our Collections team will ask you to provide them with up to date details of your income and outgoings and your repayment proposals, and they will review this information and discuss this with you, in order to agree a suitable plan for the repayment of your outstanding debt.

If as they state I have received absolutely everything then they don't really have much information on me!! I specifically asked them (see post 115 here) what documents they would rely on in court, and it seems they don't have any agreements or overdraft letters or anything that would show that I have agreed to unfair terms and conditions, which I have repeatedly pointed out to them I never agreed to. Including unilateral variation of interest rates on an already built up debt, the inability to free interest or close down an account with a negative balance etc. I really don't know how they can proceed on the basis of zero legally actionable information regarding this account?

As a result of months of emailing Stephen Hester's office - I have achieved 1) an end to charges; 2) a refund of all charges applied since the account went to the collections team in March; 3) a £100 goodwill payment; and 4) a refund of all interest (£143) charged while I have been in correspondence with them. But they have not agreed to freeze further interest. Nevertheless, I have got something for my trouble.

I am very unsatisified with Alison Acton at RBS' reply to me and the fact that I did not get proper SAR materials through so I emailed Gary Stewart, head of compliance, at RBS again just now, copying in Alison Acton:

Dear Mr Stewart,

 

I am writing re: NatWest account XXXXXXX. I have been in unfruitful email correspondence with Alison Acton in your office, who has sent me a number of deliberately evasive responses, in particular, refusing to consider my request for freezing of interest in the light of the

Conduct of Business Sourcebook (she flippantly states that refusal to freeze interest is in line with your fairness requirements - I want

the non-flippant response). And in particular - please read the following sentence repeatedly until understood - I asked her to respond specifically on whether NatWest's refusal to comply with the law on data Subject Access Requests constitutes unfair management of an account. She has at no point replied to this, although I made it crystal clear that I was seeking a specific reply on this point.

 

Look - if this account goes to court, presumably you will rely on certain legal documents to make a claim against me. I have made clear

that I don't recall signing anything to set up an overdraft facility, that I don't recall agreeing for a debt already built up to be subject

to continual unilaterally varied interest charges, that I don't recall agreeing that interest could be charged on interest (bearing in mind

that a large proportion of my alleged debt is precisely interest on interest), that I don't recall agreeing that the account could not be

closed down without a nil balance, but could be kept artificially open by NatWest while dormant with respect to my usage, while the ONLY transactions on the account are you interest and charges, refunds of charges and things like that. When did I agree to such blatantly

unfair contractual terms? When did I agree to ANY contractual terms?

 

So I do not know what legal documents you would rely on in court, and I submitted a data SAR request, asking, specifically for EVERYTHING you have on me, including printed, electronic and audio materials, to include but not be limited to, account opening contracts and overdraft facility letters. I asked for this specifically to level up the playing field between NatWest and me so that I would have a copy of all the documents you are relying on, and so that I could see what legal basis, IF ANY, there is for your interest charges and your payment demands.

 

How could I defend myself in court without them? How can I even tell if you have any legal basis to your demands without seeing these

things? Alison Acton has consistently evaded comment on this. To be quite honest, I do not believe NatWest has a policy of complying with the Conduct of Business Sourcebook at all - as evidenced by Alison Acton's handling of my complaint.

 

I am writing to you, Gary Stewart, to ask you, as head of compliance, to ensure that I receive the SAR materials I have requested and which are overdue - or to write off any and all claimed debts that you are purporting to pursue me for and in addition to refund all interest

charges that have been applied to my account at any and every point since October 1st 1990.

 

What I received by courier today by way of a farcical pretended reply to my SAR request was:

 

2 pages - explanation of the banks' codes

next page - my address and the date my next statement is due

next page - the fact that my statements are electronic and not paper and my email address

next 2 pages - the interest rates and limits on my overdraft as at 24 Oct

next page - symbols and codes

next page - account limit in force

next 3 pages - mostly blank, showing you haven't got my passport number or nationality or graduation date

next page - phone numbers

next page - customer account relationship - just a page claiming I am £14 over the OD limit

next 2 pages - a photograph of a handwritten letter to your collections centre by me on Sept 17

next page - a holding letter from the bank on Oct 5 saying "we are dealing with your request"

next page -a holding letter from the bank on Oct 17 saying "thank you for your patience"

final page - a list of loans I've had showing you don't know if I had PPI taken out on some historic loans

 

You have sent through very little information of any type, other than that your computer system says the date of first relationship is 1 Oct

1990, claims I owe £3164, claims the interest rate is 18%, and has my address.

 

I have been a customer since 1990 and I **specifically asked for everything the bank has on me**, so you must have much more on me,

including electronically stored data, printed letters and transcripts of audio conversations. I reserve the right to sue you in the small

claims court if you do not send the information through. You remain in breach of my SAR request - the things you sent through do not fulfil it in any way. I asked for EVERYTHING - and sent a £10 postal order for it - including **any account opening agreements (if any), and all overdraft facility letters**. Does the fact that these have not been sent to me show that NatWest has no record of any contract between me and them (and if so, why are you pursuing me)?

 

What can you personally do to ensure that NatWest complies with the SAR request? If you agree there is no record of any agreement or

agreements between NatWest and me, please cancel the alleged debt and refund all interest charges applied to this account since October 1st 1990. Wouldn't it just be simpler for you to comply with the law and send through the SAR details I am entitled to? How can you take this account to court without having sent these things through?

1. I got a letter from NatWest refusing to stop interest - the say applying interest is fully in line with their fairness responsibilities, but confirm that the £100 they put in my account was compensation for my having to repeatedly raise complaints with them.

2. I received my SAR details - I wondered what the "parcel" would contain when a delivery arrived. To say I'm disappointed would be an understatement. It is a few printouts, but not everything I asked for.

2 pages - explanation of the banks' codes.

next page - my address and the date my next statement is due

next page - the fact that my statements are electronic and not paper and my email address

next 2 pages - the interest rates and limits on my overdraft as at 24 Oct

next page - symbols and codes

next page - account limit in force

next 3 pages - mostly blank, showing they haven't got my passport number or nationality or graduation date

next page - phone numbers, showing they don't have my current mobile number!!!

next page - customer account relationship - just a page showing me to be £14 over the OD limit

next 2 pages - a photograph of a handwritten letter to their collections centre by me on Sept 17

next page - a holding letter from them on Oct 5 saying "we are dealing with your request"

next page -a holding letter from them on Oct 17 saying "thank you for your patience"

final page - alit of loans I've had showing they don't know if I had PPI taken out on some historic loans

That's it - nothing from 1990, when the account was opened. No overdraft facility letters. Nothing to prove any contract exists between us. No transcript of audio conversations. In fact, very little information of any type, other than that their computer system says the date of first relationship is 1 Oct 1990, I owe £3164, and the interest rate is 18%, and my address.

What should I do about this SAR which does not contain the SAR details I asked for?

Hows things with work, will you be able to 'up' the payments if things pick up ?

Well, that would be my plan - but the Christmas period is an awkward one for making money - and the freezing of interest and charges gets me over that period - and if I can substantially pay off the debt before the 6 months is up, I will - but as with many self-employed people, my income is variable and far from guaranteed. Most banks still think in terms of people being employed - and ask you for you monthly income breakdown - they haven't wrapped their heads around the fact that some people's income swings wildly.

hi mike, i would like to make a claim against the natwest for sar timeline failure under s7dpa, how would i go about this and what should i seek in recompense?

James I think you can only get your costs in recompense - but you can force them to find the SAR materials and send them to you.

Sorry, the SAR was signed for Sept 17th - it is already well overdue. But all I really want is freezing of interest - if they do that I might forgt about the SAR.

Ford, you may be interested in what is happening.

After applying for but not getting my SAR details and asking for an interest freeze, I got back a reply telling me charges are frozen, but not interest. Then I noticed that charges had been applied again.

So I emailed again, asking why a £48 charge had been put on my account, when I had been told I am not eligible for charges, and pointing out my SAR details are still not with me, despite being signed for on October 17th. And then I asked again about freezing the interest, this time with copious reference to COBS.

The lady told me by email on the 8th that she was hoping to complete her reply to me that day - but I have still received no email or letter from her.

But I did notice that today they refunded the £48 charge in my account - and put in a further £100. I am expecting a letter tomorrow or this week about it. I shall be interested to see what the £100 related to - maybe a gesture of good will owing to the fact that the SAR is delayed, or for taking so long over my complaint, or to refund some earlier interest payments or something.

But anyway, the refunds put my account £42 below my overdraft limit - so, hoping that they have frozen interest, I could be home and dry - even if they haven't frozen interest, I am still pleased to see them put £148 in my account today!

That is a good result pj2, looks like keeping positive's worked

Yes, it did. Thanks to you all for your advice - and yes I am paying by standing order, not direct debit!

Thank you all for your advice. I received a letter from Halifax today - sorry no scanner, but I am delighted. They said:

I note that you are only able to send us £10 per month towards this debt at present and I have arranged for a reduced payment arrangment to be placed on your account. From the next statement onwards for up to six months no interest or fees will be charge provided the £10 per month is received. However, as this is an informal rrangement, this will not stop any default being registered on your account.

Hopefully not, you never know

Yes, I know. Have to keep positive. I'll let the forum here know what happens.

Well David Nicholson got someone to email me back today saying they wrote a reply to me on the 5th which I should get by the end of the week - I am expecting a letter telling me the standard stuff and fobbing me off...

I wrote this email to [email protected] - David Nicholson being Group Director of Halifax. The chain of command is complex, because I believe he reports to someone in Lloyds too.

Dear Mr Nicholson,

 

I understand you are group director of Halifax, and I am writing to ask you to record an official complaint and have it dealt with for me.

As you know, banks are required to deal fairly with their customers, including in matters relating to conflicts of interest between customers and the bank. This is part of the Conduct of Business Sourcebook and is considered to be part of any contract between Halifax and its customers and is actionable as breach of contract.

 

I sent the attached letter, by recorded delivery, to Halifax on October 27th, but have had no reply. I made clear the sharp fall in my

income and indicated that I was offering a certain amount by standing order to my Halifax credit card account as a gesture of good will

during my period of difficulty, and asked for Halifax to make a similar gesture of good will by freezing interest and charges on the

account for a short period. But I have not been able to elicit a response.

 

It seems that Halifax does not recognise the validity of the concept of fair treatment of customers. I rarely use this credit card (the

account for which you are about to close), but there is an outstanding balance that requires me to pay more than £40 a month, apparently

forever, into this account, with no reduction in my outstanding debt. This is not so much a credit agreement as a permanent income stream

for Halifax, and I explained in my letter that I have set up a £10 a month standing order for this account, the level of which I may have

to review downwards if Halifax can't be bothered to reply, not least because I will have to set aside some money to defend this case when

it comes to court to cover travel costs, printing costs and the seeking of legal advice. As you know, judges in court (or magistrates)

decide the level that an old debt has to be serviced at, and they quite rightly regard expenditure on food and necessities of life as

higher priorities than servicing usurious closed accounts.

 

Your bank told me in a recent letter you are closing my account and after the account is closed it will continue, apparently forever, to

be subject to interest charges. As mentioned above, the Conduct of Business Sourcebook does require fair treatment of customers,

including where there is a conflict of interest with customers, and the COBS is part of the contract, and I think it is easily arguable

that permanent interest on a closed account amounts to a deliberate violation of the COBS, particularly when I have asked you to respond

to my gesture of good will in setting up a standing order for this soon-to-be-closed old account. I asked in the letter for a freeze on

interest and charges, not permanently, but for a period of six months, followed by a mutual review, during a period of low earnings for me. I

think a judge would regard this as an attempt at a reasonable and rational dialogue by me with the bank--and your failure to reply as

indicating the opposite stance on your part.

 

I would like to get a final response from Halifax on this, and then, if unsatisfactory, to take it further with the Financial Ombudsman

Service. Please can you direct your staff to deal with this complaint and answer it relatively quickly. I feel sure a mutually satisfactory

temporary arrangement can be made between us.

I still have had no reply from Halifax

- I think they're just going to ignore my letter.

Does anyone know who I could email who would be head of compliance at Halifax?

For a start, do I want the head of compliance at Halifax, or HBOS, or Lloyds (now that Lloyds has taken over HBOS)?

thanks for any help