Peasant v Natwest - No CCA **WON**

[steven4064]

It .. threatens to obtain a security order against my property which they wil then take possession of and sell, obtain an attachment of earnings order and collect payment direct from my employer (could be difficult as I'm self employed) or apply for bankruptcy/sequestration.

Revolting Peasant

To do any of these things requires a court order and to get a court order they need an enforceable agreement which they admit they cannot produce. They are bluffing. They hope they can trick you into paying up and/or otherwsie acknoweldging the debt.

 

I would write to them along the following lines.

Thank you for your letter of date. Since, by you own admission, you have not been able to produce a copy of an executed agreement for the alleged debt within the statutory period set down in the Consumer Credit Act 1974, the alleged debt is unenforceable by virtue of s77(4) of the Act and further, under the same section, you have commited an offence.

 

Since you cannot demonstrate that I am the debtor associated with the alleged debt, all collection activity is unlawful under the CCA 1974 and contrary to the OFT guidelines on debt collection. I intend to make these facts known to the Financial Ombudsman, the Office of Fair Trading and my local Trading Standards Office. If you persist in taking legal action against me for the alleged debt, I will also make them known to the court. Section 127 (3) of the CCA 1974 forbids a court issuing an enforcement order in the absence of an executed agreement.

 

This letter also constitutes notice under s10 of the Data Protection Act 1998 that you must not process data concerning me in relation to the alleged debt or, if you have processed data already, you must cease. This includes, but is not limited to, passing any data to third parties such as Cedit Reference Agencies.

 

On [date] you placed a default marker against my credit history with a number of Credit Reference Agencies in reference to the alleged debt. Since no agreement exists between us, you have no permission from me to process data concerning me and you are in violation of the data protection principles including but not limited to Schedule 1 Part 1 (1) of the Data Protection Act 1998. I will be reporting this matter to the Information Commissioner and request and require that you remove said default marker(s) from my credit history. I shall be seeking compensation under s13 of the Data Protection Act 1998 for the distress you have caused me by your financial defamation of me.

 

Yours sincerely

 

peasant

Do not sign the letter - there have been cases of unscrupulous lenders using the signature off such letters to manufacture an excuted agreement. Send the letter to the person who sent the letter you quote above and copy it (with that letter attached) to NatWets' solicitors (Cobbetts by any chance?). Make sure the letter hs the NatWest and Solicitors references on it.

 

Have they issued any default notices in relation to this alleged debt? If, so you need to include something demanding that they remove them.

[steven4064]

There were default notices issued in amongst the rather protracted correspondence that has passed between me and them. Do you have any suggestions as to how I could word the demand for the removal of the default?

I have added a paragraph to the above letter. This letter is a first shot across the bows - no doubt there will be further correspondence. Ulimately, you may have to take them to court so keep all correspondence (filed neatly), if you haven't already.

[steven4064]

Thanks again Steven - everything is filed in chronological order so if it comes to it I can produce it all.

 

With regards to reporting to the information commissioner, how do I go about doing that and what will it achieve?

Probably not a lot but it is the right thing to do when someone violates the DPA. Send them this form

[steven4064]

No - the whole issue is that they have communicted personal information about you when they had no right to do so because they have no agreement - ie because there is no debt. If there were an agreement there would be a debt and they wouldn't have contravened the DPA.

[steven4064]

From what is on this thread, I understand that you are saying is that this debt is not yours and must, therefore, belong to someone else. that being the case, it would be interesting to to see how NatWest "reasonably demonstrate that funds of £XXXX were credited to your account on XXXXXXXXX and that they repaid a previous loan of £XXX.XX that same day".

 

As part of your corroespondence, did you send them a Subject Access Request under s7 of the Data Protection Act? Or, do you have bank statements covering the period in question?

 

There are several options:

 

1) send a Subject Access Request for all information they hold on you including, but not limited to, copies of all bank statements. See if there really is evidence to demonstrtate.... as they state in their letter.

 

2) take them to court under ss10(4), 13(1) & (2)(a) and s14(1) of the Data Protection Act 1998 if you are sure the debt really is not yours

 

3) do as they suggest and go to the FOS

[steven4064]

I have statements covering the period and they are correct in stating that the funds were credited but they were removed again on the same day.

So was that a bank error or what?

[steven4064]

In that case, I guess either option 2) or 3) in post #13 is the way forward

[steven4064]

No - what I am saying is that NatWest repaid the previous loan with a new loan of an amount almost identical to the settlement figure on the existing loan without having a signed agreement from myself and my wife. In a nutshell, they settled the existing loan (which was not in arrears and still had 2 years to run) with a new "loan" without my consent.

How does this tie in with what you wrote in post #14?

 

Did you keep on paying the original loan? How long ago was this?

[steven4064]

So, to clarify, was the sequence of events something like this:

 

1) you had a loan with about 2 years left to pay

2) NW wrongly credited your account with an amount that almost exactly clearer the remainder of the loan

3) noticing their mistake, they immediately took the money out again

4) However, as a result of 2) they claim the loan was paid off

5) To balance their books, they claim a replacement loan has been taken out but cannot produce any evidence of it

 

Is that something like it?

[steven4064]

Sorry, last question, do you have it in writing from NW that the original loan is paid off?

[steven4064]

In that case, referring back to post #13 - you have 2 choices: put everything into a coherent case and either

 

1) take them to court under ss10(4), 13(1) & (2)(a) and s14(1) of the Data Protection Act 1998, OR

 

2) do as they suggest and go to the FOS

[steven4064]

I think you would win either way. If you took them to court, I think they would settle fairly quickly unless they are more stupid than we think and decide to defend 'properly'.

 

The FOS route could take time. I don't know if you have followed this thread but they got a positive result from the FOS (Post #128 ) but it took 11 months.

 

Personally, I would go with the court route, but that is because I am currently doing it for the fifth time, for charges anyway. You have to decide what you are happiest with. The court route is a game of 'chicken' and you have to keep your nerve. The FOS rouite is possibly less stressful.

 

Anyone else like to comment?

[steven4064]

I don't know what to do for the best now. Any suggestions anyone?

Personally I think attack is the best form of defence. Nat West's behaviour would make me see red and I'd get my claim in on Monday - bother the 7 days. They are then reduced to counter claiming (which would be interesting given the circumstances )

 

I would then write to NatWest timed to get there right on the 7 day deadline informing them of my action.

[steven4064]

Why don't you send a copy of the letter from NatWest saying they haven't got an agreement to Shoosmiths in reply to this letter and point out, that they are therefore up a gumtree without a paddle

[steven4064]

You will just have to follow them around until a solicitor realises what is going on and tells their client where to get off

[steven4064]

Perhaps copy them the story so far.

[steven4064]

You might find this interesting too

Under the provisions of the Administration of Justice Act 1970, Section 40, it is an offence to harass anyone with demands for payment which "in respect of their frequency or manner or occasion of making any such demand, or of any threat or publicity by which any demand is unaccompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation".

[steven4064]

Why not?

[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

[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 ....."

[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

[steven4064]

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

[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.

[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

[steven4064]

I would say so - try it