What are NR up to? **WON**

[Graham777]

Here's my position.

A few weeks ago I was served with Court papers for a loan through NR.

At the time I requested a copy of the CCA, (email to the solicitors)

I have chased the CCA on a regular basis and the solicitors just keep saying they are waiting for NR. It is now 16 days. I have to submit my defence to the court by next Wed.

 

However, yesterday, NR rang and suggested I use the solicitors I am using to sell my house to undertake an agreement to use some of the proceeds to pay off the loan. I find this very strange. I am assuming that, (as usual), no agreement exists. I would very much appreciate any advice for the following.

 

1. What do I tell the court?

2. Do I persist with my request for the CCA?

 

Many thanks

 

G

[rory32]

Did you request the information under the Civil Procedure Rules or did you just send a CCA request to the solicitors? I assume by chasing the copy of the agreement you mean you have been phoning the solicitors. Stop doing this.

What are the Particulars of Claim?

[Graham777]

I requested the CCA under CP rules.

The claim is for a loan of up to 30,000 that came with the mortgage on a draw down facility. The solicitors are adamant that this comes under the CCA 1974 but I always thought that was for loans up to 25,000.

[rory32]

I think they are getting confused between the CCA1974 and the CCA2006. CCA1974 does only cover loans up to £25K.

[Graham777]

They have particularly stated the CCA1974 which is why I requested a copy of the agreement.

 

Do I need to apply to the court now for directions on how to get a copy?.

I am sure the solicitors are aware that their 14 days are up under the CP rules.

[rory32]

Do I need to apply to the court now for directions on how to get a copy?.

 

No. If it's part of their claim then you can ask as part of your defence for the case to be struck out as they haven't supplied a copy of the agreement or alternatively a stay to be granted until such time as the claimant complies with your request for a copy of the agreement.

[rory32]

If you want help with the defence we really need to know the POC.

[rory32]

Forgot to ask, did you state that you are fully or partially defending the claim and did you ask them for any other information under the CPR.

[Graham777]

Please find POC attached.

I wish to apply for a stay until I see the agreement.

I would very much appreciate any help.

 

Questions I wrote to solicitor:

 

REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within seven days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention.

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next seven days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

 

Their answers:

 

Dear

 

We acknowledge receipt of your email and your request for information.

We are fully aware of the Civil Procedure rules and the law in relation to disclosure of documents. We are not entirely aware of your intentions in relation to some of the points that you have raised as some seem to be in relation to the Data Protection Act and others in relation to a loan that is not regulated by the Consumer Credit Act, which yours is.

 

For your information we answer your points made hereto;

1) A true copy of the executed credit agreement along with the terms and conditions was supplied to yourself when to took the loan from Northern Rock (our client). However, we assume that you have mis-laid this document and as such we have requested a copy from our client and we will forward this to you upon our receipt.

2) Your request for all records that we hold on you relevant to this case have already been forwarded to you by the court in our claim form.

2a) Your request for copies of telephone conversations. - We have never spoken to yourself on the phone. At this stage, when in court we do not intend to rely on any conversations that you have had with our client. If you are in fact referring to conversations that you have had with our client then we ask that you point out any dispute that you have or relevance of any conversation that relate to this litigation. At this stage, when in court we do not intend to rely on any conversations that you have had with our client, unless you bring to our attention anything aforementioned.

2b) We ask that you clarify what you are asking for

2c) A copy of the default notice and formal demand, which we assume you are referring to were sent to you. Copies of these documents are enclosed to the claim form that you have received from the court.

2d) Do you have insurance? Please clarify what you are asking for.

2e) We ask you to clarify what you mean by "collection charges" and what exactly you require.

2f) We assume that when you state "Agencies" you are referring to our charges being Northern Rock's Solicitors. Our charges to date are as follows.

i) Letter of claim sent to yourself on 20 August 2007 - £47.00 + VAT (copy with the claim form)

ii) Issuing Proceedings against you. Our fees £105.00 + VAT and Court Fee £400.00

These are the only legal fees that we have in relation to this action to date.

2g) We fail to see the relevance of this request.

2h) We have not disclosed your information to any agencies.

2i) You request statements for the entire duration of this credit agreement. You would have been sent these on either a quarterly or monthly basis. There is an administration charge for copies of these statements payable by you. You are able to request these from our client directly. We do not intend to use these statements in these proceedings.

3) We will forward you any other documents that we wish to rely upon in court when we have seen your defence should you choose to make one.

 

 

Our fees are based on the courts "Fixed Costs" which are charges based upon the courts recommendations. We fail to see the relevance of your requests for information and as you can appreciate it has taken some time to answer, where we could, your requests. All of the documents that you have requested (that we understand the relevance to) have already been sent to you and copies are enclosed on the claim form sent to you by the court. Should any further requests similar to this be received, we will have little option other than to charge this case at an hourly rate rather than the court's "Fixed Costs"

As such we would advise you that should you wish to file a defence you should seek independent legal advice.

We reserve the right to use the email that you have sent us as evidence in court.

 

Yours sincerely

 

Dickinson Dees LLP

POC1.doc

POC2.doc

[rory32]

Graham you need to make the thumbnails a lot bigger, as I can't read them.

[Graham777]

Sorry, I have now pasted them in to 2 .doc files.

[Graham777]

Are the files readable now?

[Graham777]

Would very much appreciate some help with my defence.

 

Cheers,

 

G

[tomterm8]

Please see my PM for detailed advice (I've CC'd a couple of site helpers as well).

 

This is the kind of defence I was talking about.

 

DEFENCE

 

On the DATE, a request was made under the civil procedure rules to obtain a copy of a credit agreement that the alleged debt refers to. It was sent by DELIVERY METHOD to the Claimant’s Solicitors. In response the claimant provided a copy of an unsigned document that does not comply in all respects with the consumer credit act 1974 s61 (signing of agreements) and is rendered unenforceable via s174(3) of the consumer credit act 1974

 

I deny that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produced a copy of a properly executed credit agreement and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, I aver that no agreement has ever existed for there to have been any failure to make said payment.

 

It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

In respect of that which is denied, during the period in which the Account was operating the claimant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The defendant understands that the claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

I contend that:

 

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the claimant; exceed any alleged actual loss to the claimant in respect of any breaches of contract on the part of the defendant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.

 

 

Accordingly I put the Claimant to strict proof that every charge and collection charge made to the account was valid and lawful. I aver that any default notice sent would have included these charges.

 

I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach. If the claimant sent a default notice that includes unlawful charges, this default notice is invalid under English law for the reason that it is inaccurate and so the claimant may not seek to enforce this debt.

 

Further, the claimant states that I have refused to pay sums due under agreement. In its particulars of claim, it has not explained under what terms of any agreement these sums were due and I put the claimant to strict proof that said monies are due.

[PriorityOne]

 

Hi Graham,

 

I've been PM'd to look at this one..... so have included some thoughts to the letter you received from the sols. TT does excellent defences for people on here, so you are in good hands....

 

Their answers:

 

Dear

 

We acknowledge receipt of your email and your request for information.

We are fully aware of the Civil Procedure rules and the law in relation to disclosure of documents. We are not entirely aware of your intentions in relation to some of the points that you have raised as some seem to be in relation to the Data Protection Act and others in relation to a loan that is not regulated by the Consumer Credit Act, which yours is. It makes no difference whether they are fully aware of your intentions or not.... and as they maintain that the loan is covered by CCA, 1974, where is the doc. then ? Without the doc., you are unable to confirm that any authorisation was given for your personal data to be shared.

For your information we answer your points made hereto;

1) A true copy of the executed credit agreement along with the terms and conditions was supplied to yourself when to took the loan from Northern Rock (our client). However, we assume that you have mis-laid this document and as such we have requested a copy from our client and we will forward this to you upon our receipt. A poor attempt at trying to use the moral high ground here.... that you have lost your copy; your fault, etc ..... suggesting that they haven't got it, or they would have sent it you. Silly move to start legal proceedings without it guys....

2) Your request for all records that we hold on you relevant to this case have already been forwarded to you by the court in our claim form. Are they implying that a true copy of your CCA is not relevant to this case then ?.... since they have yet to produce it ?

2a) Your request for copies of telephone conversations. - We have never spoken to yourself on the phone. At this stage, when in court we do not intend to rely on any conversations that you have had with our client. If you are in fact referring to conversations that you have had with our client then we ask that you point out any dispute that you have or relevance of any conversation that relate to this litigation. At this stage, when in court we do not intend to rely on any conversations that you have had with our client, unless you bring to our attention anything aforementioned.

2b) We ask that you clarify what you are asking for

Any correspondence between NR and sols. in relation to yourself, which has resulted in sols. taking legal action against you. Are they implying that they received no such notification and simply plucked you name from a hat ?.... or do they just not want you to catch sight of this paperwork ? 8-)

2c) A copy of the default notice and formal demand, which we assume you are referring to were sent to you. Copies of these documents are enclosed to the claim form that you have received from the court.

Where is the proof that these docs. were received ?

2d) Do you have insurance? Please clarify what you are asking for.

Have they added insurance ?

2e) We ask you to clarify what you mean by "collection charges" and what exactly you require.

Self-explanatory.... but I'm sure they know this....

2f) We assume that when you state "Agencies" you are referring to our charges being Northern Rock's Solicitors. Our charges to date are as follows.

i) Letter of claim sent to yourself on 20 August 2007 - £47.00 + VAT (copy with the claim form)

ii) Issuing Proceedings against you. Our fees £105.00 + VAT and Court Fee £400.00

These are the only legal fees that we have in relation to this action to date.

2g) We fail to see the relevance of this request.

Without sight of the signed CCA, you remain unable to confirm any Agreement to pass your personal info. on to anyone else.... and to date, they've been unable to produce it.

2h) We have not disclosed your information to any agencies.

2i) You request statements for the entire duration of this credit agreement. You would have been sent these on either a quarterly or monthly basis. and NR are legally obliged to retain them... There is an administration charge for copies of these statements payable by you. Not as part of a SAR to NR there isn't.... You are able to request these from our client directly. We do not intend to use these statements in these proceedings.

3) We will forward you any other documents that we wish to rely upon in court when we have seen your defence should you choose to make one. It will be interesting to view their response following receipt of TT's defence. It seems they are used to dealing with easy targets who won't put up any resistance.... and you're not going to be one of those.

 

Our fees are based on the courts "Fixed Costs" which are charges based upon the courts recommendations. We fail to see the relevance of your requests for information and as you can appreciate it has taken some time to answer, where we could, your requests. All of the documents that you have requested (that we understand the relevance to) have already been sent to you and copies are enclosed on the claim form sent to you by the court. Should any further requests similar to this be received, we will have little option other than to charge this case at an hourly rate rather than the court's "Fixed Costs"

As such we would advise you that should you wish to file a defence you should seek independent legal advice.

We reserve the right to use the email that you have sent us as evidence in court.

 

Yours sincerely

 

Dickinson Dees LLP

 

You are unlikely to get the account info. you require without a SAR to NR.... although without a CCA, the account is unenforceable anyway. Having said that though, I am a little confused by there claim that the loan comes under CCA, 1974.... since I also thought it only covered loans £25k and under . In order to cover yourself, it might be worth considering a SAR to NR in order to see all the data held on you, which should include statements in relation to this account. That way, you could go along the unlawful charges route and reject any Default Notice that they claim to have sent you, as being invalid..... should this be necessary.

 

Any thoughts on this anyone ?

 

[tomterm8]

You are unlikely to get the account info. you require without a S.A.R - (Subject Access Request) to NR.... although without a CCA, the account is unenforceable anyway. Having said that though, I am a little confused by there claim that the loan comes under CCA, 1974.... since I also thought it only covered loans £25k and under . In order to cover yourself, it might be worth considering a S.A.R - (Subject Access Request) to NR in order to see all the data held on you, which should include statements in relation to this account. That way, you could go along the unlawful charges route and reject any Default Notice that they claim to have sent you, as being invalid..... should this be necessary.

 

Any thoughts on this anyone ?

 

 

Agreements made after the 2006 act are not restricted to less than £25,000. This agreement, however, was made when that restriction applied, and so never was a agreement regulated by the consumer credit act in the definition applicable.

 

I am coming to the conclusion, however, after a little reading that if the original credit agreement clearly and prominantly contained the phrase "This agreement is regulated by the consumer credit act 1974" , then there would be a very strong case that you were entitled to rely on that representation and that they should be estopped in equity from claiming otherwise.

 

Such an argument might very well find its way to the house of lords, but I believe the case law from similar situations is very strong on this point.

[rory32]

Graham, is it a case of the drawdown facility has increased over time or has it always been £30K? I notice on drawdown facilities that it is often stated that the maximum drawdown transaction is £25K per transaction.

[Graham777]

Guys,

 

Many thanks for your valuable input.

Rory, the drawdown was always £30K

[Graham777]

I have now submitted my defence to the court, (many, many thanks tomterm). I have also had this emailed from the sols.

 

I refer to previous correspondence and my conversations with my client.

 

 

I can confirm that I have today received instructions to issue

proceedings against you in relation to your mortgage arrears. Should

your account not be brought up to date we will seek possession of your

property. We have also been instructed to continue in the litigation in

relation to the unsecured loan.

 

However, after your conversation with our client stating that you were

prepared to obtain a solicitors undertaking to the effect that upon

selling your property the indebtedness of both secured and unsecured

loans would be redeemed in full, we are prepared to make an arrangement,

owing to the amount of equity in your property.

 

As you have, at this stage not provided the undertaking, we will not

withdraw proceedings in relation to the unsecured loan. However, an

alternative course of action is for us to draft a "Tomlin Order". This

is an order, sealed by the court with specific terms attached to it and

registered against the title to your property. The term that your

property will stand charged with the unsecured loaned will be

incorporated into that order.

 

 

My client will then allow you time, to sell the property to pay back the

indebtedness in full. They will agree that no payments need be made in

relation to either loan for a period of 3 months, to allow you time to

sell without the property going into possession. Additionally, realising

this order, our client would be unable to enforce the "unsecured"

charge. In effect the proceedings that have been issued against you

would come to an end by a mutual agreement and we will not issue the

mortgage possession proceedings for a period of 3 months from the date

of the order.

 

 

 

 

 

Should you agree the order in draft would be drawn for you to sign. We

would then send the order to the court for sealing. If you are not in

agreement to this course of action then we will act on our clients

instructions and issue possession proceedings against you within 7 days.

 

 

We are attempting to reach a satisfactory result for both our client and

yourself and to keep the litigation and the cost to a minimum. We would

appreciate a response to this email within the next 7 days.

 

They seem extremely keen on turning this unsecured loan into a secured one?

 

I would appreciate any comments you may have on the above.

 

Cheers,

 

G

[tomterm8]

I would absolutly advise you not to do this without talking to the national debt line. In particular, if you have other debts, i would suggest the most you could honourably do is to offer pro rata payment on an unsecured debt, after any secured payment was made.

 

since you have already placed your house up for sale, i would suggest they are unlikely to successfully obtain reposession, but again you can talk to the national debt line.

 

What is your equity situation - positive or negative?

[Graham777]

My equity situation is positive.

[Graham777]

Hi all,

 

I have now received the attached from the court. (The 4th sheet was a standard t&c which would not scan).

 

I would like to challenge this on 2 counts.

 

1. I would like to change the court to one nearer.

2. They imply that they have 'mislaid' the agreement. I know for sure that one was NEVER signed.

 

I am also suprised that the hearing is only 20 mins, is this standard?

 

Cheers,

 

G

Court.doc

[tomterm8]

I've asked a few people to have a look in to the thread.

[Graham777]

Surely, now that they cannot produce an 'agreement', they cannot continue with there action as the account is in dispute!

 

Any ideas?

 

Cheers,

 

G

[pt2537]

Hi G

 

Now my thought are this,

 

hypothetical, if you are in the court and the judge says to you did you sign an agreement with the claimant and you say "yes sir i did" there is a chance the judge will consider it sufficient that the fact it has been mislaid and you agree to signing it gives him grounds to enforce it

 

HOWEVER, if you are asked and you say "i cant remember " that puts the burden of proof on the claimant to prove on the balance that you did, the only concieveable way that they could discharge this burden is by producing the original agreement in court before the judge

 

you may find it helpfull to read the Wilson case as there are some persuasive comments in the judgment which refer to the cca being introduced to protect consumers from unscrupulous lenders

 

 

regards

paul