Another dispute with NatWest

[tem19]

Hi all,

 

I'm new to this site, but what a revelation it is proving to be!!!

I've just started a battle with my bank, NatWest. I've sent 3 letters, the most recent one being today after they were unable to comply with my request (made 2 months ago) for a copy of the Consumer Credit Agreement in respect of a loan I took out with them over 6 years ago. I am still paying this back. They state I still owe £15k although the loan was originally for £15k . After they told me they couldn't find a copy of the agreement I immediately cancelled my standing order and told them I would be making no further payments until they complied with my s77/78 request. They are now threatening to transfer my accounts to the Bank's credit management services and register a default notice on my file. I wrote to them today telling them that I am entitled not to pay as it is they who are in breach of their obligations under the CCA, not me! I also repeated that if I did not receive a copy of the agreement by 28 Oct, I would apply for an order that the alleged agreement is irredemably unenforceable under s127(3) and/or s127(4) of the CCA 1974. I have three questions/concerns. Firstly, would I have to commence a claim against the Bank or could I just apply for an Order/Declaration that the Agreement is irredemably unenforceable under s127. a Claim is so long-winded. Is there any quicker alternative which would have the same effect and prevent/restrain them from messing up my credit rating? Secondly, I have signed all of my letters to them. Should I just continue doing so as they have not found the agreement thus far or should I be worried that they will now miraculously 'find' an agreement using my signature from my letters. Thirdly, I did not pay them £1 when I made my requests, although they have responded in writing on three occasions, either saying that they could not find the executed agreement/illustrator or they were investigating my complaint. The most recent letter (6 Oct) said 'I regret that I have been unable to locate the Bank's copy of your loan agreement'. Their first letter on 19 august said 'after many attempts of searching for the paperwork, we no longer possess it in our branch as the paperwork exceeds 6 years'. Does this mean that they have officially responded to my s77/78 request or by not providing the £1 does this mean that I am still in breach?

 

Any advice/assistance on this would be greatly appreciated.

[miss muppet]

Hi Tem and welcome, yes, they are still in breach and you were legally entitled to stop paying after 12 + 2 days. Its best to wait for them to start court action against you and don't be intimidated by their threats. There's plenty of advice in the legal section of the Debt forum, hang on to all the paperwork they have sent you, looks pretty watertight and wait for them to do their worst, except you can get busy with complaints to your local TS, and the OFT, ie they are still pursuing you when the account is in dispute due to their non-compliance with the CCA request.

 

Did you do an SAR as well, the fee is £10 for all the history on transactions, looks like they won't be able to comply with that either!

Don't forget don't sign anything.

[citizenB]

Hi all,

 

Their first letter on 19 august said 'after many attempts of searching for the paperwork, we no longer possess it in our branch as the paperwork exceeds 6 years'.

 

hehehe, this statement made by the bank is rubbish. They are required by law to safely store all statutory documents (which an agreement is) for a period of time until after the account is paid up/complete. I think it is 5 years for tax purposes and 6 years for money laundering laws.

 

You ask if there is another way to proceed other than to have the agreement declared unenforceable.

 

Check out this thread, it might give you some ideas.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/93884-wescot-rbofs-oh-dear.html

[tem19]

Many thanks for the helpful comments guys! Will check out the thread and give you an update on what's happening.

[tem19]

Hi MissMuppet, no I didn't do a SAR. how should I send the £10 fee, should I send it by cheque (although that would require my signature) or should I send it to them in cash by special delivered post?

[citizenB]

Hi MissMuppet, no I didn't do a S.A.R - (Subject Access Request). how should I send the £10 fee, should I send it by cheque (although that would require my signature) or should I send it to them in cash by special delivered post?

 

 

Agghh no, dont send cash. Get a postal order, it will cost you about 60p extra for the privilidge. Ask for it to be crossed that way it can be paid into a bank account. You can ask for the name of the bank to be entered at the post office as well. All you need to do then is put your account number on the top of the postal order. No signature required but much safer than sending cash in the post.

[maroondevo52]

Thread moved to Natwest Forum.

[tem19]

Thanks Maroondevo52! Any comments greatly appreciated.

[tem19]

Natwest are now getting more threatening. Or does this smack of desperation in anyone's opinion? Here's an exerpt from their reply.

 

"I have now had the opportunity to refer your complaint to the bank's legal department.

 

I have been advised that your loan agreement has been misfiled and despite searching our records we have been unable to locate it. Regrettably we are unable to comply with your request under section 77(1) of the consumer credit act. Notwithstanding this the loan agreement remains valid and we expect you to continue to meet your obligation under the agreement. We should point out that, as previously advised, if you do not resume making payments we will report the record of the default and any other information provided to the CRA's when considering applications by you, or anyone else with whom you have a joint account or similar financial association, for facilities for motor, household, credit, life and general insurance. The existence of information on accounts in default at the CRA's may impair your ability to obtain credit or other financial facilities such as current accounts for a period of six years. The credit Agencies the bank reports to are Equifax PLC, callcredit PLC and Expreian Ltd.

 

Although you do not dispute that you have fully utilised the Loan funds (I didn't say that, I said I didn't dispute the sums that came into my current account in 2002 or what they were spent on) you have said Natwest should not be accepting any payments until we can locate a copy of your signed loan agreement but this is not correct (oh yes it is), you can make and we can accept payments into your account.

 

Section 78 of the CCA 1974 and the consumer credit act regulations are not relevant to your case (but section 77 and 127 are!). We note your reference to the case of Wilson and Others v Secretary of State for Trade and Industry (2003) but cannot see what bearing this has on your request for a copy agreement (oh no, but it does have a bearing on their argument of unjust enrichment doesn't it?)

 

I have already referred this matter to the financial ombudsman and Haringey Trading standards agreed with everything I said in my complaint apart from two things: 1. they are under no obligation to provide me with a consumer credit licence and 2. I would not be able to recover the sums I have already paid to Natwest because I would have to show a void contract.

 

I am pretty convinced that without a copy of the agreement, they have no case, no matter how much they huff and puff. However I am worried about these b******* messing up my credit rating in the process. What should I do to prevent that?

[citizenB]

 

I have already referred this matter to the financial ombudsman and Haringey Trading standards agreed with everything I said in my complaint apart from two things: 1. they are under no obligation to provide me with a consumer credit licence and 2. I would not be able to recover the sums I have already paid to Natwest because I would have to show a void contract.

 

I am pretty convinced that without a copy of the agreement, they have no case, no matter how much they huff and puff. However I am worried about these b******* messing up my credit rating in the process. What should I do to prevent that?

 

 

Hehehe, nope, they are under no obligation to provide you with a Consumer Credit Licence Sorry just being facetious.. It is the original contract/agreement you want, which they say is misfiled.. hmmmm wonder how they would react if it was the tax man or Companies house asking for that same document ?

 

I am not sure where you stand with documents for a loan. I have seen somewhere on the forum that there is exemption from one part but I really am not sure.

 

I think it best you wait for someone else with more knowledge to advise you on this. Sorry

[tem19]

Thanks Citizen B. I will contact Trading Standards with my queries. In the meantime I have found other bits and bobs from this site (including an excellent letter by another user) and have managed to draft a nice curt reply to their letter. I haven't sent it yet as I want to check for any factual innaccuracies but here's the jist of it below:

Dear Madam,

 

Thank you for your letter dated 28 October 2008, the contents of which are noted. Your letter (aside from making further threats against me), fails to deal with any of the issues raised in my letter (save for the ones that ‘are not relevant’ to my case), namely the fact that for over two months NatWest have been in default in respect of my Section 77(1) request and are thus committing a criminal offence under section 77(4) of the CCA.

You now claim that the loan agreement has been ‘misfiled’, however I find it difficult to believe that you have mislaid such an important document as the copy of the consumer credit agreement. Previously, you claimed you were unable to locate it. Prior to that, Dxxx Sxxxxx of the Axxxx Ixxxxxxx Branch claimed that ‘we no longer possess it in our branch as the paperwork exceeds six years’. As I’m sure you are aware, this 6 year period starts from the closing of an account, not the opening of one. It is clear that the valid, regulated ‘loan agreement’ does not exist, which is the plain and simple reason why you are unable to ‘locate’ it. No amount of threats levelled towards me will change the position unless you are able to produce the valid, executed agreement. As such, I continue to acknowledge no debt to your company. Since you are unable to demonstrate that I am the debtor associated with the alleged debt, any collection activity is not only unlawful under the CCA 1974 but is also contrary to the Office of Fair Trading Guidelines on debt collection.

In any event, by virtue of the very fact that NatWest are unable to locate the valid, executed loan agreement or illustrator, it would appear that you have failed in your obligations to comply with the various anti money laundering regulations in not keeping such documents. This, as I’m sure you are aware, is a very serious offence.

 

I now require the balance of this account to be returned to zero.

 

Please note you may also consider this letter a statutory notice under Section 10 of the Data Protection Act 1998 to cease processing any data in relation to this account with immediate effect. Since no agreement exists between us, NatWest have no permission from me to process data concerning me and if you do so you would also be in violation of the data protection principles including but not limited to Schedule 1 Part 1 (1) of the Data Protection Act 1998. This means you must remove all information regarding this account from your own internal records and, if applicable, from my records with any credit reference agencies. Should you refuse to comply, you must within 14 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘right’, you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

You also claim that I ‘do not dispute’ that I ‘have fully utilised loan funds’. I in fact stated that ‘I do not dispute the fact that £11,000.00 was received in my current account on 15 August 2002, nor do I dispute that £2000 was received in the same account in December 2002 and April 2003.’ Please desist from attempting to put words into my mouth. In any event, it appears that you are alleging that I have been unjustly enriched by the alleged ‘loan funds’, however unjust enrichment is no defence even to an improperly executed consumer credit agreement (Wilson v Secretary of State for Trade & Industry [2003] UKHL), let alone an agreement that you cannot even show exists.

 

Should you fail to respond within 14 days, I will expect that this means you agree to remove all such data.

 

Furthermore, you should be aware 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 as such (for want of repeating myself) the following would apply:

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

Please be aware, the CCA 1974 is very clear that a default can only be issued for breach of a valid, regulated agreement. As there is no agreement a default cannot be lawfully issued as no valid, regulated agreement has been breached. However, since the Bank’s legal advisors appear to doubt my assertions, I enclose my email correspondence with Mr Jxxx Sxxxx of Hxxxxxxx Trading Standards, which they may find useful. All of the correspondence thus far (including your most recent letter), have been forwarded to Hxxxxxxx Trading Standards for their investigation. Mr Sxxxx also helpfully showed me where I could obtain a copy of the bank’s Consumer Credit Licence, which is just as well since the Bank is not obliged.

Furthermore, please be aware that the recent letter I received from you could, under the Administration of Justice Act 1970 section 40, be construed as unlawful harassment.

 

I would ask that you review this account and respond favourably within 14 days of the date of this letter. Failure to do so will result in me reporting this matter to The Financial Crime Branch of HM Treasury and any other authorities as I see fit. In respect of the financial Ombundsman, I already made a formal complaint to the Financial Ombudsman some weeks ago, and I have forwarded to them all correspondence (including your most recent letter and my correspondence with Trading Standards). I enclose their letter to me dated 25 October. No doubt you will be hearing from the Financial Ombudsman shortly if you have not done so already.

 

I look forward to your reply in due course. In any event, if your unlawful harassment continues in the absence of an executed agreement, I will make an application for an interim injunction/declaration under CPR Part 25 without any further reference to you.

 

Yours faithfully

[tem19]

Also, does anyone know where on this site I can find an example of a subject access request?

[citizenB]

Tem, your letter looks pretty impressive. There are examples of S.A.R - (Subject Access Request) letters all over the site, I will try and find one or two links for you. BRB.

 

This one is from Bankfodder

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/516-1-data-protection-act.html#post2480

 

The following links are based on the letter above but adapted to include information specifically required by the sender.

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/147541-chris1977-hsbc-r-subject.html?highlight=Subject+Access+Request#post1557189

Edited November 1, 2008 by citizenB

[tem19]

Thank you very much for that, Citizen B, much appreciated! Hopefully I'll send out both the letter and the SAR early next week. I'll keep u updated

[tem19]

Just an update, I got a letter on Sat from Natwests Debt Collections team and I sent off my SAR on Friday. I also got a telephone call today from the Financial Ombudsman. He asked me whether I did take out the loan. I pretty much admitted that I received £15k in 2002 but that I had never signed a CCA agreement and I am very worried that they've actually seriously increased the amount of interest, which is why I wanted to see the terms. Said he's contacting the bank too. One thing that struck me - I did an experian credit report last week and on the section that shows all of my existing credit agreements (and repayments up to date), the disputed one with Natwest wasn't on it at all, which is all the more baffling because my current account (overdraft facility) with Natwest is on there and has been since 2002. My only other agreement, my mortgage was also on there. Why haven't Natwest ever registered the disputed loan with CRAs? And if they sell this issue on to a DCA, will they still then be able to register the alleged default with the credit ref agencies despite the fact that the disputed account has never been on my credit file?

[citizenB]

Hmmm, in answer to your query re no defaults with the CRAs.. I have no idea. Has Natwest actually sent you a default notice?. Is there any markers at all, perhaps later markers on the report ?. The only other thing I can think of is, that until they have answered you queries properly they wont do anything. fingers crossed.

[tem19]

Latest news. After a great 5-month battle NatWest have miraculously found a copy of my CCA agreement with what definitely looks like my signature on it, leaving the only question, is it enforceable or not enforceable? I attach it below. Any thoughts/comments greatly appreciated.

Tem's 'natwest CCA agreement'084.pdf

[underdog13]

miraculously found or recreated?

[tem19]

My thoughts exactly Underdog. But that would be mighty hard to prove, especially as the agreement has my signature on it. Interestingly enough they still haven't complied with my SAR though.

[underdog13]

If they go past the 40 day period, report them to the ICO:)

[tem19]

They've already gone past it, so I will do just that!

Do you think that the terms of the 'found' agreement complies with the CCA requirements?

[underdog13]

tbh, I'm not sure whether the terms meet the CCA requirements. Hopefully someone more knowledgeable than me will be along shortly to check the accuracy of interest rates, etc.

 

Sorry not to be of more help. Best of luck with it all:)

[tem19]

Thanks underdog!

[tem19]

Bump...