Natwest CCA Response

[Scrappy01]

Hi, Posted this here for the guys from this link to look over for me. Any further comments appreciated. My original post is here and below: http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-534.html#post1314759

 

Hi again everyone.....

 

Can anyone give me advice on a NatWest problem? I CCA'd Natwest and what they returned is a Credit Card Account Application Form from 2000(which I can't read) that is signed by me. All they have done is stamped it. There seems to be no real signature in the box. Also they have included a Credit Card Agreement regulated by the Consumer Credit Act 1974 Key Financial Infomation document. This has no signatures or even spaces for signatures and it is the one that is currently in force on my account (so they say).

 

1st question, without a signature from the bank is the application form valid with just a stamp?

2nd question, as there are no perscribed terms on the application form and no signature on the current Credit Agreement is it enforcable? As I can't read the application form I can see if it refers to another document.

3rd question, shouldn't I have the CCA agreement from the time I signed the form, ie 2000?

4th question, are they allowed to just change my (supposed, unsigned) CCA agreement? Section 82 indicates they must send me a copy before they can do this.... and they never have done.

 

I can post both parts on here tomorrow if anyone has the time to take a look?

 

Thanks in advance for any help.

vbrep_register("1314331")

 

Here are the documents that I was sent from Natwest.....

Natwest Info.pdf

[davefirewalker]

OK.....

 

first look

 

No prescribed terms on the "agreement"

 

terms are on the T&C...but it is a recent one...default charges are £12

 

you need to see the original t&c otherwise you wouldnt know what you signed up to........

 

Dave

[Scrappy01]

OK.....

 

first look

 

No prescribed terms on the "agreement"

 

terms are on the T&C...but it is a recent one...default charges are £12

 

you need to see the original t&c otherwise you wouldnt know what you signed up to........

 

Dave

 

Hi Dave

 

It says at the top of the unsigned "agreement" that this is a copy of your agreement at the last statement date.

 

I suspect that they think I'm gonna fall for it as they probably don't actually have anything that has the perscribed terms on that I've signed, otherwise they'd have sent it.

 

Also in my previous post on the other thread about s82...... s82 states that if they vary the agreement they must send you notice that they are going to do so. Does this apply in my case?

 

I've never seen the agreement before so if s82 does apply then they broke it. I also know that the whole Key Financial Information wasn't around when I signed the application form back in 2000.

 

I must add also that they sent me a copy of the newest terms and conditions in leaflet format, it has the date on the back as 05/07 and it doesn't have any interest rates etc in it.

 

I sure they can't refer me to the CCA document in anyway on the original application form. I've never seen it say anything other than "refer to the terms in the enclosed leaflet".

[Scrappy01]

Sorry Dave, I should have said I'm going to ask for the orignal CCA not just the application form. I just wanted people to check things out for me because I've read various peoples posts on here and Natwest can be quite blunt and to the point about what they are obliged and not obliged to provide.

[Scrappy01]

Just another question on this too..... Not sure if anyone knows but Natwest state that the 'true' copy requirement can be statisfied by providing a copy agreement at the date of the card agreement was made and a copy of the current terms of the card agreement.

 

Is there any information anywhere that states what a "true" copy is? Has anyone taken this one to court and got an answer?

 

I know in my mind that there is no point issuing the current terms as they are not the ones I agreed with at the time of opening the account.

[ScarletPimpernel]

In order to comply with a s.77/78 request they can provide a copy of the agreement without signatures. However, if the agreement refers to any terms and conditions in a document other than the agreement document (e.g. a T&C leaflet), then they must provide a copy of that too. In other words, copy of the T&C that related to the agreement at the time.

 

Many OCs and DCAs waffle about not needing to send a copy of the actual signed and executed agreement. Many also spout drivel about sending the current T&C because these show current rates etc.

 

However, one has to wonder why, given that they do need to produce the original signed and executed agreement if they want to enforce in Court, they don't send a copy of that rather than a blank example. The answer, of course is that they almost certainly don't have it.

 

The general rule is that the more they shout about the need not to provide a signed and executed agreement, the less likely they are to have one.

 

This has happened to me several times; I usually reply:

 

Thank you for your response to my formal request pursuant to s.77/78 of the CCA 1974, the content of which is noted. I see that you have not sent me a true copy of the signed and executed agreement, as I requested. Please confirm whether you have a signed and executed agreement relating to this account, and if so, explain why this was not provided either as part of my SAR dated xxx, or in response to my above-noted request. If you do not have such an agreement, please confirm this.

 

So far every company that has sent me a 'blank' agreement has ultimately admitted that they don't have an enforceable agreement - though they plainly find it difficult to say so! Clearly these letters will be most useful should they be stupid enough to attempt court action.

[Scrappy01]

Thanks ScarletPimpernel. I plan on writing back to them. I see you have done S.A.R's. To be honest I haven't done one for this account. Just because I've done S.A.R's for other banks regarding credit card accounts and loan accounts and got nothing back but statements. It makes me angry that they don't seem to comply fully or even know how to comply but then I guess its in my favour!!!! I have all the statements and the supposed agreements and default notice from the CCA.

[car2403]

A SAR is a good idea just to get the statements - where the statements show default charges being applied, this will invalidate the Default Notice as the Default amount will contain those (unlawful) charges thereby making the entire Notice inaccurate and unlawful.

 

Regardless of what the agreement enforceability issues are, an unlawful/inaccurate Default Notice nullifies the entire balance outstanding and gives you a counterclaim against them for damage to credit reputation.

[Scrappy01]

Hi car2403. OK I already have the statements. I've kept them from the date it was opened to the date it was passed to DCA.

 

I've already been through all my statements. The only thing I found was that they did add some late payment charges to the account in 2001 only around £30 but would it be to late to bring this up due to the 6 year limit? The minute I got in to trouble with payments, they defaulted me, and they didn't charge me anything for missing the payments, and within 3 months they passed it to the DCA its still with and no more charges have been added.

[car2403]

What was the balance of the account when it was Defaulted/Terminated?

 

As long as the amount of the charges isn't "deminimis" (i.e., a relatively small %-age of the Default amount) you can use these arguments.

 

Did the Default amount (i.e., balance on the Default Notice) include these charges?

[Scrappy01]

On just checking my statements again I paid off the whole balance and used the card again in between the charges and the default so I probably couldn't use that argument!

[car2403]

Yes you can - if they've allowed you to use the account after Defaulting you, that's their lookout! They can't Default the same agreement twice, in effect, so this argument IS applicable, IMHO.

[Scrappy01]

OK I'll check it out. I'll look through my statements and the default notice fully.

 

Thanks.

[Scrappy01]

Sorry car2403, I'm being thick............! I don't understand your last post. Can you explain a bit more.

 

When you say "if they've allowed you to use the account after Defaulting you" do you mean that the late payment charges can be classed as default fees?

 

I only have the one default notice that is dated 22 March 2002. The £30 late fees were put on my account in late 2000. I carried on using the card and then I cleared the card to £0 in late 2001 and then got in to problems and got the default notice March 20002.

[car2403]

Ok, I'll try to keep this simple as it does get confusing - (I'm almost sure the creditor will try to confuse you with this too, as they did me, to no avail!) I'm not patronising you, but this is simple if you follow along with me.

 

There are 2 different types of default in your question - "default" (with a small 'd') and "Default". (with an uppercase 'D')

 

The word "default" is the literal breach of the agreement you had (or didn't have, in this case) to repay the loan. For example, I sell you a Chocolate bar and loan you the amount to buy it - in return you agree to make 4 regular payments of 25p on a monthly basis. If you fail to make those payments as agreed, you are in "default" of the agreement in that you have failed to keep to the terms of the agreement. You are in default of the agreement.

 

The word "Default" comes from the phrase "Default Notice" and has it's origins in Part VII of the CCA 1974. (s.87/s.88 if your interested) A Default Notice is issued to debtors that are in default of the agreement they signed, in that they are in breach of the agreement terms (which doesn't have to be making regular payments, but that's a different story) - a creditor MUST send a Default Notice to a debtor in default of an agreement prior to terminating the agreement.

 

So, you can be in default without being Defaulted, if you follow my meaning.

 

In your case, you were in default of the agreement, they have sent you a Default Notice (which is a precursor to terminating the account) but they haven't actually Defaulted you, which would result in terminating the agreement. They have waived their rights (at the time of being able to Default you at least) to Default you by allowing you to continue to use the account. The fact you are still using the account is irrelevant to the fact they have sent you a Default Notice, IMHO, as such Notice is unlawful at the time of issue (containing default charges) and is a rescission of contract;

 

Failure of a Default or Termination Notice to be accurate not only invalidates the Default or Termination Notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

[IIIUMINATI]

Hello Anitaparrott

 

I had the same letter but was signed by Helen Bennett.

Got a copy of the agreement which I signed but it was not signed by the bank. No credit limit was indicated . The debt was sold to interim justitia and I was told to contact them in future.

I contacted them to ask them for a refund of the charges which the bank had applied to my credit card account before they bought it.

To date no contact from justitia.

Checked with the banking ombudsman and they tell me that the bank is responsible for repayments. The bank do not wish to know RBS refereed me back to interim. So now up to them.

 

There letter I found odd

Than you for your letter which was received into this office

My comments may be of little use but there letter is bog standard

and you have an application not an agreement.

[Scrappy01]

Hello Anitaparrott

 

I had the same letter but was signed by Helen Bennett.

Got a copy of the agreement which I signed but it was not signed by the bank. No credit limit was indicated . The debt was sold to interim justitia and I was told to contact them in future.

I contacted them to ask them for a refund of the charges which the bank had applied to my credit card account before they bought it.

To date no contact from justitia.

Checked with the banking ombudsman and they tell me that the bank is responsible for repayments. The bank do not wish to know RBS refereed me back to interim. So now up to them.

 

There letter I found odd

Than you for your letter which was received into this office

My comments may be of little use but there letter is bog standard

and you have an application not an agreement.

 

Thanks for your comments. I've seen a few more letters on here the same, just the paragrahs jiggled around! My letter says my debt hasn't been sold but that Interim need to be contact etc..... funny but all the letters I get are from OSCC (Outstanding Services Credit Control). Theres no mention on any of the paper work from OSCC that they are Interim Justitia.

[Scrappy01]

Ok, I'll try to keep this simple as it does get confusing - (I'm almost sure the creditor will try to confuse you with this too, as they did me, to no avail!) I'm not patronising you, but this is simple if you follow along with me.

 

There are 2 different types of default in your question - "default" (with a small 'd') and "Default". (with an uppercase 'D')

 

The word "default" is the literal breach of the agreement you had (or didn't have, in this case) to repay the loan. For example, I sell you a Chocolate bar and loan you the amount to buy it - in return you agree to make 4 regular payments of 25p on a monthly basis. If you fail to make those payments as agreed, you are in "default" of the agreement in that you have failed to keep to the terms of the agreement. You are in default of the agreement.

 

The word "Default" comes from the phrase "Default Notice" and has it's origins in Part VII of the CCA 1974. (s.87/s.88 if your interested) A Default Notice is issued to debtors that are in default of the agreement they signed, in that they are in breach of the agreement terms (which doesn't have to be making regular payments, but that's a different story) - a creditor MUST send a Default Notice to a debtor in default of an agreement prior to terminating the agreement.

 

So, you can be in default without being Defaulted, if you follow my meaning.

 

In your case, you were in default of the agreement, they have sent you a Default Notice (which is a precursor to terminating the account) but they haven't actually Defaulted you, which would result in terminating the agreement. They have waived their rights (at the time of being able to Default you at least) to Default you by allowing you to continue to use the account. The fact you are still using the account is irrelevant to the fact they have sent you a Default Notice, IMHO, as such Notice is unlawful at the time of issue (containing default charges) and is a rescission of contract;

 

Thanks car2403. I understand now. Very useful to know this. I will see if I can put a letter together.

 

Another question you might know the answer to (or if anyone else is reading)...... The whole reason I started this is because dispite me paying OSCC for the last 5 years every month without fail Natwest puts a D on my credit file for the payment history. I have to say when I found out I was really p*ssed off. Is this right because its not the only one like this that I have? Personally I don't think it is. Surely because I've arranged to pay a reduced payment so it should be £ or 6 for arrangement to pay. I'd probably be in a better position had they just terminated the supposed agreement and sold on to a DCA!

[car2403]

Thanks car2403. I understand now. Very useful to know this. I will see if I can put a letter together.

 

Another question you might know the answer to (or if anyone else is reading)...... The whole reason I started this is because dispite me paying OSCC for the last 5 years every month without fail NatWest puts a D on my credit file for the payment history. I have to say when I found out I was really p*ssed off. Is this right because its not the only one like this that I have? Personally I don't think it is. Surely because I've arranged to pay a reduced payment so it should be £ or 6 for arrangement to pay. I'd probably be in a better position had they just terminated the supposed agreement and sold on to a DCA!

 

They can Default you as you are behind with payments under the agreement.

 

Termination isn't automatic, but they can't Default the same account twice. (As you can't break the agreement, in Default, twice)

 

So, they can continue to repayment late payments. (Challenging the agreement and Default is the way to get this removed, but it could result in Court action being needed to get them to remove it)

[Scrappy01]

They can Default you as you are behind with payments under the agreement.

 

Termination isn't automatic, but they can't Default the same account twice. (As you can't break the agreement, in Default, twice)

 

So, they can continue to repayment late payments. (Challenging the agreement and Default is the way to get this removed, but it could result in Court action being needed to get them to remove it)

 

OK thanks for all your advice. I'll get on with my letter

[Scrappy01]

Please can someone cast an eye over my letter below and tell me if its accurate and fair? I'm trying not to accuse them of anything, I don't want to get the s*d off letters that so many people have had from Natwest already, but I'm sure it'll be no different...........

Thanks

Dear Sir or Madam

Thank you for your letter dated the 26th November 2007.

With regards to the copy of the application form is mostly illegible. s2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 entitled Legibility of Notices and Copy Documents and Wording of Prescribed Forms states:

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

I’d therefore request that a fully legible copy be sent to me.

I’d also like to request that a copy of the Credit Card Agreement regulated by the Consumer Credit Act 1974 from when I opened the account is sent to me. The copy you have sent states “The information contained in this copy of your agreement is correct as at your last statement date”.

s82 of the Consumer Credit Act 1974 states that:

(1) Where, under a power contained in a regulated agreement, the creditor or owner varies the agreement, the variation shall not take effect before notice of it is given to the debtor or hirer in the prescribed manner.

I have never received prior notice of the agreement for the account changing.

I also notice that the copy sent to me is not signed by either myself nor the bank, or contains any signature boxes, it would therefore appear to be an unexecuted agreement and as you are aware I made a request under s78 of the Consumer Credit Act 1974.

s78(1) of the Consumer Credit Act 1974 states:

The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of 15 new pence, shall give the debtor a copy of the executed agreement and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,-

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

According to s78 you must provide me with copy of the executed agreement (shown above in bold). The definition of an executed agreement as per s61(1) of the Consumer Credit Act 1974 is shown below:

A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms

and conforming to regulations under section 60(1) is signed in the prescribed

manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

It would also appear that despite you having sent me a signed copy of an application form that this also cannot be relied upon as a Credit Agreement regulated by the Consumer Credit Act 1974 as it does not contain the prescribed terms required as per s61(1).

I’d also like to request a copy of the Terms and Conditions for the account from when I applied for the account not the ones currently in force.

I will give you a further 14 days to provide these documents. If a satisfactory conclusion hasn’t been reached after the 14 days I will write to you and OCSS and place the account in dispute and no further payments will be forth coming until a satisfactory conclusion has been reached.

[car2403]

I wouldn't include the wording of the Act/Regulations in your letter - a reference to them is fine unless referring to specific words, which you aren't here.

 

Also, why are you giving them 14 days to respond when they are (presumably) already in default of your request 12+2 days in? Tell them that they are in default and you consider the entire balance of the account in dispute as a result and payments won't be made until the dispute is resolved.

 

I know you said you don't want to push them, but these are THEIR obligations under the law and they aren't taking you seriously, IMHO. Don't pander to their whims by letting it drag on is my advice...

[The GodMother]

I agree with CAR.

 

Give them less than 14 days to comply with your reqest buy sayibg you have 7 days from date of recipt to comply with my request or l will class this account as is serious dispute.

 

Send buy at least recorded delivery.

 

Chrissi

[car2403]

I've never bothered with Recorded Delivery since they "lost" my letter and couldn't find it - I couldn't claim anything other than some stamps as the letter had no value!

 

Send it first class post, but take the letter to the post office and get proof of postage.

 

Also, CPR rules state you can serve legal documents by first class post (the Courts do!) so save your money, I say!

[The GodMother]

Erm l was told that all legal documents have to go buy at least recorded delivery.

 

Chrissi