Peasant v Natwest - No CCA **WON**

[steven4064]

Why not?

[revolting peasant]

This what I have drafted up

 

 

I have recently received several letters from yourselves and various solicitors instructed to act on your behalf.

 

I would refer you to your own letter of 28th January 2008.

 

Take notice that should you persist in contacting myself or my wife regarding an unsubstantiated claim against us I shall take action against you under the legislation contained within the Protection from Harassment Act 1997 and the Administration of Justice Act 1970.

 

I require that the Bank

 

1) Desists from instructing or otherwise causing agents, paid or otherwise from making contact with either myself or my wife.

 

2) Removes any defaults registered with credit reference agencies.

 

Should the Bank fail to confirm within 7 days of the date of this letter that the aforementioned actions will be taken, proceedings will be commenced.

 

 

What do you think ?

[steven4064]

Perhaps add to the third paragrpah ("take notice....") a new sentence. Further, by processing data concerning myself and my wife without our express permission you are in contravention of the Data Protection Act 1998.

 

And at the end - I will commence proceedings under ss1, 2&3 of the Protection from Harassment Act 1997, s40 of the Administration of Justice Act 1970 and s 10(4) of the Data Protection Act 1998. I shall also request the court to pay me damages at its discretion under s3(2) of the Protection from Harassment Act and s13 of the Data Protection Act.

 

Another thing I thought of earlier and then couldn't find - the OFT Guidelines on Debt Collection say

Physical/psychological harassment

2.5 Putting pressure on debtors or third parties is considered to be oppressive.

2.6 Examples of unfair practices are as follows: ...

 

d. not ensuring that an adequate history of the debt is passed on as appropriate resulting in repetitive and/or frequent contact by different parties

[revolting peasant]

It now reads

 

I would refer you to your own letter of 28th January 2008.

Take notice that should you persist in contacting myself or my wife regarding an unsubstantiated claim against us I shall take action against you under the legislation contained within the Protection from Harassment Act 1997 and the Administration of Justice Act 1970.

Further, by processing data concerning myself and my wife without our express permission you are in contravention of the Data Protection Act 1998.

I require that the Bank

1) Desists from instructing or otherwise causing agents, paid or otherwise from making contact with either myself or my wife.

2) Removes any defaults registered with credit reference agencies.

I will commence proceedings under s 1, 2 &3 of the Protection from Harassment Act 1997, s40 of the Administration of Justice Act 1970 and s 10(4) of the Data Protection Act 1998. I shall also request the court to pay me damages at its discretion under s3(2) of the Protection from Harassment Act and s13 of the Data Protection Act.

[steven4064]

Yes except that you have lost the 7 day's warning. Perhaps the last bit (light blue) - "Unless you inform me in writing within 7 days that you will comply with these requirements ....."

[revolting peasant]

Right - that letter has gone recorded delivery to Bishopsgate but today I have received a County Court claim form issued by Shoosmiths.

 

It is addressed only to me, not both of us. I have filed my acknowledgement of service on line and indicated that I intend to defend the claim.

 

My next question is this. Do I defend and counterclaim for harrassment and breach of the DPA or do I defend and issue separate proceedings if Natwest fail to comply with my request. My own thought is that if they agree to my request then my defence is complete, albeit fairly sound already under S 127 of the CCA.

[steven4064]

I think you can take Shoosmith's action as a 'no' to your request. As you have filed acknoweldgement of service you have 28 days to file a defence so you can afford to wait the 7 days you gave them before filing.

 

Use the time to start getting stuff together for a defence and counterclaim. I would start by putting togther a skeleton argument - a brief statement of your case that you can work up to a full defence/CC. Also, if you haven't alredy, get all the correspondence, etc into apple-pie order.

 

Also make sure you are keeping records of letters and phone calls.

 

Obviously, we'll be here to help.

 

I would suggest the following outline for skeleton argument:

 

Backgound

History of dealings with NatWest and various solicitors

 

Defence

Deny having (this) agreement

CCA requests

s127

 

Counter claim

Harassment

s40 AJA 1970

s1,2 PHA 1997

OFT Guidelines broken

claim for damages under s3 PHA 1997

 

Data Protection

DP Princples (Data Protection Act 1998 )

No agreemen - no permission

order to stop under s14

claim for damages under s13

[revolting peasant]

Oh what fun!

 

Today we get a claim form issued by Irwin Mitchell Solicitors, addressed to my wife and for a different amount so we now have 2 claims going on using 2 different solicitors for 2 different amounts on what Natwest insist is a "joint agreement".

 

I've filed AOS online for this one as well and will start drafting defence and counterclaim tonight.

 

Is now a good time to apply to have them both transferred from the Bulk Centre to our local court?

[steven4064]

I think you do that at allocation - there is a box for it on the allocation questionnaire

[paulwlton]

Oh what fun!

 

Today we get a claim form issued by Irwin Mitchell Solicitors, addressed to my wife and for a different amount so we now have 2 claims going on using 2 different solicitors for 2 different amounts on what NatWest insist is a "joint agreement".

 

I've filed AOS online for this one as well and will start drafting defence and counterclaim tonight.

 

Is now a good time to apply to have them both transferred from the Bulk Centre to our local court?

 

I would keep Rupert informed.

 

Paul

[revolting peasant]

I've today received the following from Shoosmiths

 

We write to confirm that we have received Notice of Issue from County Court Bulk Centre confirming that our client will be at liberty to request Judgement against you on 2nd March 2008.

we would remind you that once this step is taken you will have a County Court Judgement registered against your name. This will have an adverse effect upon your credit rating.

As previously stated, our client will not refrain from entering Judgement on the basis of instalment payments and requires a lump sum in settlement of the debt. We would invite you to consider your financial circumstances and should you be in a position to offer such a lump sum to our client please contact..............

If you contact us with confirmation that you will be in a position to make a lump sum payment to our client it may be that our client will be minded to give you a further short period prior to requesting Judgement to make payment.

This letter was dated the day after the CC Claim was issued, the day I received it and the day I acknowledged service and notified my intention to defend. Is it just me or would the court perhaps see this as an attempt at intimidation, not least of all because they haven't replied to my response to their first letter. At the time this letter was written, they could not possibly have known that I had filed AOS as I didn't do it until 4.30pm that day.

 

I feel a complaint to the Law Society and the Court coming on. Any thoughts?

[steven4064]

It is obviously an attempt to pressurise you into settling out of court. But, as you say, they have not seen your defence and counter claim yet - that will hoperfully make them think again. I would just keep this letter and add it to your bundle for court as (more) evidence of harassment.

[revolting peasant]

I've almost got my defence and counterclaim together and I will post it here before I submit it to the court.

 

New question is do I submit it as soon as it is ready or do I push it to the time limit as they would do?

[steven4064]

THey push it to the limit because they don't really have any intention of defending. Send it as soon as it is ready but there is no need to rush

[paulwlton]

Was the new loan the same interest rate as the one it replaced.

 

Paul

[revolting peasant]

Answer to that Paul is I don't know as I have never had an agreement!

[revolting peasant]

Quick question.

 

S.127(4) actually states that an enforcement order shall not be made if the agreement is not supplied to the debtor prior to the commencement of proceedings.

 

As proceedings have commenced and all I have is a handful of letters telling me there is no agreement do I have grounds for an application to strike out?

[steven4064]

I would say so - try it

[revolting peasant]

Thanks Steven. In the mean time a critical eye over this would be appreciated

 

 

 

 

 

 

 

DEFENCE AND COUNTERCLAIM

 

 

 

 

THE DEFENCE

 

 

 

 

 

 

1. The Defendant has held account XXXXXXXX sort code XXXXXX with the Claimant as a joint account with XXXXXXXXXXXXX, who is not named in this case, since approximately 2002.

 

2. The Claimant alleges that a loan subject to the terms of The Consumer Credit Act 1974 was made to The Defendant under account number xxxxxx on a date unspecified in the Claim. The Defendant has no knowledge of signing an Agreement with The Claimant.

 

3. On 31st January 2007 The Defendant made a request pursuant to S.77 (1) and S.78 (1) of the Consumer Credit Act 1974 for The Claimant to supply a copy of the Executed Agreement relating to the alleged loan. The Claimant has failed to supply the agreement, contrary to S.77 (4) of the Consumer Credit Act 1974 and has repeatedly informed The Defendant that no such agreement exists or if such an Agreement exists, neither The Claimant nor The Defendant is in possession of the Agreement.

 

 

4. The Defendant refers to S127(4) of the Consumer Credit Act 1974 and contends that in the absence of an Agreement between himself and The Claimant, The Court cannot issue an enforcement order as the alleged Agreement has not been supplied to The Defendant prior to the commencement of these proceedings.

 

5. The Claimant claims amounts of £0.31 and £2.72 relating to other accounts held by The Defendant. Recent inspection of statements from The Claimant shows these to be credit balances and The Defendant denies these amounts.

 

 

 

 

 

 

THE COUNTERCLAIM

 

 

 

 

6. The Claimant has, in spite of informing The Defendant that no Agreement exists between them has repeatedly written and telephoned The Defendant and his wife demanding repayment of the alleged debt. Further, The Claimant has instructed several Solicitors and other external agencies to do the same. The Defendant considers this to be harassment and contrary to S.40 of the Administration of Justice Act 1970, S.1 & S.2 of the Protection from Harassment Act 1997 and also against the guidelines of The Office of Fair Trading on debt collection.

 

7. The Defendant believes that he can further demonstrate harassment as The Claimant has instructed a different Solicitor to issue proceedings against The Defendant’s wife (Claim No. xxxxxxxx) for an amount similar but not identical to the sum claimed in this case.

 

8. The Defendant requests that The Court:

 

a) Makes an order that The Claimant ceases to contact or in any way pursue The Defendant or his wife.

 

b) Makes an order for damages to be paid to The Defendant of an amount to be set by The Court’s own discretion.

 

 

 

9. The Claimant has registered a default against The Defendant and his wife. In the absence of a regulated agreement, such action is contrary to the Data Protection Act 1998. The registration of a default has prevented The Defendant from obtaining business banking facilities and has caused embarrassment and distress. The Defendant therefore requests that The Court:

 

a) Makes an order that the defaults registered against both The Defendant and his wife are removed.

 

b) Makes an order for damages to be paid to The Defendant of an amount to be set by The Court’s own discretion.

[revolting peasant]

I've spotted the error and fixed it!

[steven4064]

I do have a few comments (not major)

 

 

 

 

 

DEFENCE AND COUNTERCLAIM

 

 

 

 

THE DEFENCE

 

 

 

 

 

 

1. The Defendant has held account XXXXXXXX sort code XXXXXX with the Claimant as a joint account with XXXXXXXXXXXXX, who is not named in this case, since approximately 2002.

 

2. The Claimant alleges that a loan subject to the terms of The Consumer Credit Act 1974 was made to The Defendant under account number xxxxxx on a date unspecified in the Claim. The Defendant has no knowledge of signing an Agreement with The Claimant.

 

3. On 31st January 2007 The Defendant made a request pursuant to S.77 (1) of the Consumer Credit Act 1974 for The Claimant to supply a copy of the Executed Agreement relating to the alleged loan. The Claimant has failed to supply the agreement, thereby comitting an offence under S.77 (4) of the Consumer Credit Act 1974, and has repeatedly informed The Defendant that no such agreement exists or if such an Agreement exists, neither The Claimant nor The Defendant is in possession of the Agreement.

 

 

4. The Defendant refers to S127(4) of the Consumer Credit Act 1974 and contends that in the absence of an Agreement between himself and The Claimant, The Court cannot issue an enforcement order as the alleged Agreement has not been supplied to The Defendant prior to the commencement of these proceedings.

 

5. The Claimant claims amounts of £0.31 and £2.72 relating to other accounts held by The Defendant. Recent inspection of statements from The Claimant shows these to be credit balances and The Defendant denies these amounts. Is this relevant to the claim in question?

 

 

 

 

 

 

THE COUNTERCLAIM

 

 

 

 

6. The Claimant has, in spite of informing The Defendant that no Agreement exists between them has repeatedly written and telephoned The Defendant and his wife demanding repayment of the alleged debt. Further, The Claimant has instructed several Solicitors and other external agencies to do the same. The Defendant considers this to be harassment and contrary to S.40 of the Administration of Justice Act 1970, S.1 & S.2 of the Protection from Harassment Act 1997, s.127 of the Communications Act (2003) and also against the guidelines of The Office of Fair Trading on debt collection.

 

7. The Defendant believes that he can further demonstrate harassment as The Claimant has instructed a different Solicitor to issue proceedings against The Defendant’s wife (Claim No. xxxxxxxx) for an amount similar but not identical to the sum claimed in this case, which is also contrary to The Office of Fair Trading on debt collection.

 

8. The Defendant requests that The Court:

 

a) Makes an order that The Claimant ceases to contact or in any way pursue The Defendant or his wife pursuant to s5 of the Protection from Harassment Act 1997.

 

b) Makes an order for damages to be paid to The Defendant of an amount to be set by The Court’s own discretion pursuant to s3 of the Protection from Harassment Act 1997

 

 

 

9. The Claimant has registered a default against The Defendant and his wife. In the absence of a regulated agreement, such action is contrary to the Data Protection Act 1998. The registration of a default has prevented The Defendant from obtaining business banking facilities and has caused embarrassment and distress. The Defendant therefore requests that The Court:

 

a) Makes an order that the defaults registered against both The Defendant and his wife are removed pursuant to s14 of the Data Protection Act 1998.

 

b) Makes an order for damages to be paid to The Defendant of an amount to be set by The Court’s own discretion pursuant to s13 of the Data Protection Act 1998.

(which error did you spot?)

[revolting peasant]

I got my Defendants and Claimants ass about face at one point but I did change it.

 

Thanks for the advice Steven. The silly little amounts are relevant as they are included in the claim form and are incorrect. It demonstrates further that they haven't a clue what they are doing.

 

I'll make the amendments and get it off then. Tonights project is the defence for the claim against the wife which is basically the same so hopefully won't take as long!

[revolting peasant]

That's it. Both defences done and on their way to assorted solicitors and the court.

 

Mant thanks to Steven for his assistance:) . Now we just have to wait and see what happens next!

 

I'm going to wait and see what the response is before I go anywhere with an application to strike out as I might kick myself in the compensation orders!

[revolting peasant]

Another letter from Natwest today.

 

Basically it says that they will not remove the defaults and can demonstrate in Court that I agreed to the loan, in spite of there being no agreement.

 

This letter was sent before I filed my defence and counterclaim but it looks like they want to go for it. Either that or they are still relying on intimidation tactics.

[steven4064]

If they can demonstrate it in court, then the documents, etc they intend to use have to be given to you in their court bundle (if they actually do one). THey are not allowed to just turn up in court and try tp prove something. That should give you time to assess whatever it is they intend to use. It's hard to see what, mind you, since they have already admitted there is no CCA.