CCA Nationwide - Loan.

[petedoyle]

myself and the wife have a £20k loan taken out with Nationwide 2 years ago ( nearly to the day!) we have been paying it back steadily for 23 months (approx £300 pm) and i sent in my CCA letter and £1 cheque,(which still hasnt been cashed) got a POD from my first letter sent on 27/09 so i know they have got my letter, NO REPLY within the 12 days...and now, next monday the 40 days are up - WITH NO RESPONSE, not even a letter or acknowledgement of my letter.

 

IF we dont hear anythign after the 40 days, have we 'won by default' - and the loan gets wiped out and they have to repay everything pack we have paid to date - is this, my understanding of it correct??

 

is it as clar cut as that if we do 'win'....or is it still a battle to prove they have committed an offence and get our money and the loan quoshed?

 

what are the next steps to take if this is the case and how do i go abotu it? anyone else experience this with Nationwide? or know of any other simailare threads i could check?

 

thanks

 

Pete

[Curlyben]

IF we dont hear anythign after the 40 days, have we 'won by default' - and the loan gets wiped out and they have to repay everything pack we have paid to date - is this, my understanding of it correct??

NO, not at all.

 

is it as clar cut as that if we do 'win'....or is it still a battle to prove they have committed an offence and get our money and the loan quoshed?

Again NO.

 

Lack of CCA DOESN'T mean that the debt is voided or cancelled.

The debt still exists, but it means that it is unenforceable in court.

[petedoyle]

hi curlyben, thanks for quick reply! my legal knowledge is non existenat - so please bare with my niavety....

 

so what does this mean then if it goes to court the loan cant be enforced? im confused, surely a loan that is unenforcebale means its illegal surely?and therefore if theres no papertrail to indicate that there has ever been an agreement in place would mean that theyd have to pay it all back? no? how come?

 

obviously if i am wrong - can you please provide info on what i should be doing, or what happens and what i should do - if you know? thanks

 

Pete

[Curlyben]

OK slow down here.

 

 

* so what does this mean then if it goes to court the loan cant be enforced?*

Without a valid agreement then enforcement is not possible under s127(3) of CCA 74

 

*surely a loan that is unenforcebale means its illegal surely?*

NO, Unlawful possibly but NOT illegal.

 

 

*therefore if theres no papertrail to indicate that there has ever been an agreement in place would mean that theyd have to pay it all back?*

 

Lack of an agreement wouldn't mean there is lack of a paper trail.

There would be records of the loan amount being paid out and you making payments. Just because the agreement is found to be unenforceable doesn't mean that you should have all your payments returned.

 

You have had the benefit of the loan and trying to reclaim payments on an unenforceable agreement would be seen as unjust enrichment and get you into serious trouble.

 

Have a read of CCA 74: http://www.fisa.co.uk/downloads/CCA%201974.pdf

[petedoyle]

phew thats some serious bedtime reading! (thanks)

 

ok have slowed down now, i must admit i think i have been seriously misled by reading other threads on loans/managed loans etc, using the CCA tactic to get loans quoshed and payments repaid to the customer, i am sure i have read about this actually happening in other threads - and thought this was the reason why people were CCA'ing their loans to see if they dont get the reply theyre after in the timescale given then the loan gets wiped out, obviously i have severly misunderstood this...

 

so, if the loan IS found to be unenforceable - what does this actually mean? and what would be the actual possible outcome of a situation like this?

 

am really confused so need it breakign down into laymans terms for me

 

thanks again

[Curlyben]

IF, and it's a big if, the loan is found to be unenforceable, the action taken varies by lender.

What ever happens they cannot try and have it enforced through the courts as this isn't possible.

 

On the CCA link you need to read s61, s77-78, s127 for starters.

This will give you some more insight.

 

In s61 it refers to prescribed terms.

 

 

S61(1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60(1) – see Q1.14.

 

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and s127(3) – see Q8.2.

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

 

 

Also check out Peter Bard's excellent thread on the subject: http://www.consumeractiongroup.co.uk/forum/general/103383-agreement-enforceability.html

 

That'll keep you going for now.

[petedoyle]

many thnaks for your replies guys, will check it all out - cheers for the info.

[petedoyle]

the 40 days have expired have not heard anything from Nationwide.

 

this is a template i have got from someone elses thread...

 

Dear sir or madam

 

Request for true copy of Credit Agreement under Sections 77/78 of the Consumer Credit Act 1974

 

I wrote to you recently requesting a true, signed copy of any credit agreement that exists in relation to the above account. This is my right under Sections 77 and 78 of the Consumer Credit Act 1974 on payment of the statutory fee of £1.00. This payment was included with my original request.

 

Under the terms of the above Act, a creditor has 12 working days to provide the requested document. Should they fail to do this, they have a further calendar month to rectify this default. Failure to comply within these timescales is a criminal offence.

 

Both of these deadlines have now passed and I have not been provided with a copy of my terms of agreement, I have not received the true copy of my agreement I am entitled to. This can lead me to only one conclusion, that being that no signed credit agreement exists in relation to this account.

 

As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable, even in a court of law.

This will be a complete defence to any court action that you may consider taking, but I assure you I will also be questioning the fact you have shared my information without my consent, violating the data protection act, as well as the consumer credit act.

 

On the advice of the Financial Ombudsman, I am now requesting a final decision in this matter from you. Should this decision not meet with my satisfaction, then I will pursue the matter through the Ombudsman. The maximum timescale for you to give a final response to any complaint is 8 weeks. This time runs from the date of my original complaint, in this case that is the request for a true copy of the credit agreement. Therefore, you must provide me with a final response in this matter, including your proposed actions for this account as soon as possible.

It has been over 45 days since my initial complaint.

Please note, you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

This means you must remove all information regarding this account from your own internal records and from my records with the credit reference agencies.

Should you refuse to comply, you must provide me with a detailed breakdown of your reasoning behind continuing to process my data (within 21 days). It is not sufficient to simply state that you have a ‘legal right, you must outline your reasoning in this matter and state upon which legislation this reasoning depends, as you will be relying on it in court.

 

There has never been any regulated agreement in relation to this account, and therefore you have never had my consent to process my data. I also do not see how you can state that you have a legitimate interest in processing my data as we have never had any contract that would enable you to do this.

 

Should you fail to respond within 21 days, I will take this to mean you have agreed & removed all such data.

 

Furthermore, you should remember that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and therefore the following applies:

• You may not demand any payment on this account, nor am I obliged to offer any payment to you.
  
• You may not add any further interest or charges to this account.
  
• You may not pass this account to any third party.
  
• You may not register any information in respect of this account with any of the credit reference agencies.
  
• You may not issue a default notice related to this account.

Be warned, the CCA 1974 is clear that a default can only be issued for breach of a valid, regulated agreement. If there is no agreement, as in this case, then you cannot issue a default as I have not breached any valid, regulated agreement.

 

I look forward to your final decision on this complaint within 21 days. This should include your proposed actions in relation to the lack of a credit agreement.

 

 

Yours faithfully,

anyone got anythign top add/omit?

[Curlyben]

WAIT for them to respond to YOU.

 

There is no need to tell them they have defaulted as they know the law.

[petedoyle]

hi curlyben

 

thanks - im still confused - to clarify - are you sayign i dotn need to send out any letter at all - or just remove the bit about the default?

[Curlyben]

Totally WAIT for them to make a move.

[petedoyle]

ok so they havent responded at all...their 40 + days are up, how long should one wait for? i thought now they have exceeded the time line given and they are commiting an offence we need to push forward and sned them something?

 

who do i contact then and let them know what has happend - the trading standards office or the ombudsman?

 

thanks

 

Pete

[Curlyben]

You need to WAIT until they either supply your CCA or start demanding payment.

 

When they make demands then a report to Trading Standards would be in order as they are chasing an unsubstantiated debt.

[shane5408]

Agree with Curly, You've given them the rope let them be the ones to hang themselves:D

 

regards,

shane

[petedoyle]

ok thanks guys - its just i am still payign this loan - i did get some advice from a freind and was told to carry on paying if i could (i can just about!) and the advice i was given:

 

In order to enforce the loan they would need to take you to court and supply a copy of the agreement. If it has all the prescribed terms then the judge will grant an enforcement order. If it doesnt then he will not and the loan then becomes void. You will not get the payments you have made back but in all likelihood the loan will be wiped out because its like me saying you owe me money but not having anything to back it up. They would then have to remove any defaults held against you. There is also the possibility that you can recompense for any defaults ie have a look at the legalities section on "pricing defaults".

 

At this moment in time Nationwide have committed a criminal offence and you can report them to trading standards. I would suggest that you contact trading standards and advise them of this. It is up to you whether you continue to pay the loan but if the agreement turns up you will have to make payments and possibly any arrears. If it was me, and I could afford the payments, I would tend to contact trading standards and continue paying. Trading standards will then take on the case and make them supply the loan agreement. If they dont then, like I say, the loan will probably be wiped out.

 

so what what should my next move be (apart from waiting) you see this is a joint loan for me and the mrs, i dont want to stop paying and then screw up our joint credit rating, (we have another baby on the way, so dont want to stress my wife out with it all.)

 

just so you have the facts we havent missed a payment and we are still carrying on as normal making the payments (last one made last week)

 

greatful for any more advice

 

thanks

 

Pete

[petedoyle]

anyone? bump

[powelll]

You can in theory just stop paying the loan if they are in default of CCA regs. I have to be completely honest and say to you that this forum is not supposed to be a means of debt avoidance. Your thread indicates that you took out the loan and spent the money. IMHO you seem to be using the CCA request to get out of paying. Please correct me if I'm wrong.

 

I agree that where companies don't comply with CCA and are aggressively chasing for payment and/or there are illegal charges added the CCA regs are a great tool.

 

If you accept that you owe the money and are simply struggling to afford your monthly payments there are other options open to you - you may want to speak to a free advice charity like National Debtline who can advise on alternatives. ( 0808 808 4000 ).

 

But obviously the choice is yours - stop paying and wait to see what happens next; if they haven't complied with CCA and pursue you for payment you can report to local trading stds & complain to FOS/OFT as well.

 

They will possibly pass to debt collectors ( DCAs ) but these guys are not bailiffs no legal powers to enter your home or seize goods so nothing to worry about.

 

If they sue you via the county court you will get a claim form through the post and then need to defend the claim on the basis there's no CCA.

 

If they registered missed/reduced payments/a default on your cred ref file this will affect both yourself & your wife. If CCA not complied with for a regulated agreement you can ask the data controller at the company to remove the entries 9 possible complaint via Information Commissioner if this isn't done )

 

If you bank with Nationwide you will need to look at moving bank accounts as they will take the loan payments from your current account. You can exercise your first right of appropriation for this ( tons of threads/stickys relating to this ).

 

I'm assuming this is an unsecured loan?? Looking at the thread it's not clear.

 

I'm just trying to give you a balanced view of things; no offence intended

[petedoyle]

hi powell, thanks for this info - your half right you have raised some interesting and valid points for me to consider. appreciated. pete

[petedoyle]

wife got letter from nationwide this am - £2 o/d has caused the 'ripple effect' of over £150 worht of bank charges...im sure were all familair. she already claimed back £1400 at the start of the year - can she put in a 2nd claim? can you claim again if you have already claimed? whats the law on this kind of thing? thanks Pete

[powelll]

She can claim again but all of the cases are on hold while the OFT test case goes through ( not until Jan 08 then God knowns how long it will take )

[petedoyle]

thanks Powell.

 

we got a true singed executed copy of the loan agreement, but it was just a 'one sheet' with ours and theirs signatures on it - is this 'correct' - or should i have been furnished with more info than this one photocopied piece of paper?

 

managed to speak to a very very helpful lady at nationwide HQ on friday, and i manged to also get 2 'footprints' removed form our joint credit files as they messed up puttign though enquireis as applications - which is a big no no, expecially as the wife has recently been a victim of identity fraud.

[petedoyle]

anyone able to answer my last posting abtou the specifics on the paperwork i recieved? - what should i be lookign for specifically on the loan paperwork?

 

Bump?

[shane5408]

anyone able to answer my last posting abtou the specifics on the paperwork i recieved? - what should i be lookign for specifically on the loan paperwork?

 

Bump?

Hiya,

 

are you able to scan and post up a copy of the agreement they sent you, it has to comply with the regulations and consumer credit act else it could be wholly unenforcable or enforcable only on court order.

 

kind regards,

shane

[petedoyle]

i can - erm if you tell me how and where to post it up - i havent ever posted up a document on this site before? im sure its not too tricky to do - i just dont know how to. its a 'one sheet' with both mine and wifes (and branch managers) signatures on it..

[petedoyle]

its a B&W oen sheet has 3 mian key titles/points

 

Key financial information

Other financial infiormation

Key Information

 

term and amounts, signatures (all parties)