Nat West Cca / Incorrect Rate Issue

[Biggles9051]

I wonder if anyone can help me please? Just over a year ago, I decided to get my finances in order and in the process of doing so I decided to check whether I could get a better rate than the loan I have with Nat West. I asked them to confirm the interest rate as I had lost the CCA in a flood at home. Initially they could only tell me that I am paying at the "bank's standard flat rate" so I asked for a copy of the paperwork (CCA). They have advised me (in writing) that they have lost it. I believe I am paying an incorrect rate as I also took an Advantage Gold account at the time which entitles me to a reduced rate. I have challenged Nat West on this and they initially told me that I have never been an Advantage Gold customer but after I provided them (ironic huh?) with the statements proving that I was (for the required period of time), they have now sent me another letter stating that I am repaying my loan at "the bank's standard flat rate for an Advantage Gold customer". They have yet to provide me with any proof that I am paying at the correct rate and state that I should just take their word for it. It almost seems as they are making it up as they go along. The tone of their letters is very heavy handed and they are effectively telling me that there is nothing I can do except shut up and accept the current situation. Any ideas / suggestions please? p.s They claim they have sent me an acceptable copy of the CCA but it is a blank copy of a CCA with no details on it (i.e. Amount borrowed, interest rate payable, etc) and it is not signed by myself or the bank (why would anyone sign a blank document after all?).

Edited December 23, 2008 by Biggles9051
Info omitted in error

[atwozee]

Looks like they’ve lost the original and don’t have a digital copy – if this is the case then they are going to struggle enforcing the debt – assuming this loan was pre April ’07 then s127 (3) of the Consumer Credit Act 1974 will prevent enforcement even by court order.

Of course the bank will ignore the above and pressure you into keeping up repayments – but without an enforceable agreement they really are relying on your goodwill – it is xmas but do they deserve such goodwill?

In Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007) Paragraph 11 Lord Justice Tuckey said:

 

I agree. The discretionary power under section 65 (1) to order enforcement of an agreement which does not comply with schedule 1 may be exercised on terms discharging the debtor from having to pay any sum payable under the agreement (section 127 (2)).

No agreement = no debt

Merry Xmas

[Biggles9051]

Thanks for the reply. That would certainly be a great start to the new year, but they have already stated that that if I don't pay (their suggestion that I might take that option - not mine: maybe they are paranoid!) they will submit a claim to the court for "unjustified enrichment". Do you think they would succeed? After all, I am only trying to ensure that I am paying the correct rate, although as each day goes by I am more and more convinced that I will have to stop paying in order to get them to sit up and treat the situation with respect. Namely they should have to prove what they have been saying for the last year. Sadly it seems that all the while they may be getting more of my money than they should they are quite happy but they have a fit of apoplexy at the very thought of losing a few quid themselves. Thanks again, Any more help is greatly appreciated......

[atwozee]

Their claim for unjust enrichment will not stand up – it has already been argued and upheld in the House of Lords – I will post you up a link to some case law later (got to go and get a turkey!) I suggest you have a good read and then make an informed decision.

The argument for unjust enrichment doesn’t hold up because the agreement becomes unenforceable via an act of parliament – it has been stated that parliament would not pass an unjust act and therefore unjust enrichment doesn’t come into it.

It’s their error not yours – but unfortunately for them the act is very harsh.

If they do take you to court then you would have a very good argument to claim back all payments made against the agreement – that’s something to throw back at them if they want to pursue the matter any further.

Back in a bit.

[Biggles9051]

Thanks, that's great. I've been toying with the idea of making one last stand for a long while now and I think 2009 will be the year that I take the bank on. It's good to be informed before sticking your head above the parapet though. I'm normally "anything for a quiet life" but I suppose every one has a David and Goliath moment at some point in their life

 

If the bank would only be sensible, we may be able to reach a mutually agreeable solution, but it seems not. So I suppose I will have to dig my heels in and employ my right to withdraw payment until the situation is resolved. That way they might end up with an unenforceable debt and a fine for breaching the CC Act (£15,000 Ithink), not to mention them paying back all that I have given them so far. I suppose at the end of the day, the law is there to protect the consumer (quite rightly). It strikes me though that we are more reasonable than they ever will be.

 

Anyway, won't have internet access for a couple of weeks, but please forward any more help / case law and thanks for the support so far.

Edited December 23, 2008 by Biggles9051
Updated

[atwozee]

Okay – good for you – knowledge is power as they say. Please bear in mind that if they ever ‘find’ the original agreement then they might have an enforceable agreement – but even then it would have to stand up to s127 (3) of the CCA. If you stop paying the instalments they will need to find the agreement within 6 years of the last payment otherwise the debt becomes statute barred any way.

 

Another thing to remember is that once you stop paying your instalments (if that’s what you decide to do) they will put more pressure on you to pay – telephone calls and threats of debt collectors – without an agreement you are in a very strong position and since they have failed to supply you a copy in accordance with s77 they are in a very weak position.

 

Forget the morals of the situation – think about all those people who have been mistreated by the banks – ripped off and thrown out of their homes whilst they pay themselves grotesque bonuses – I’m sorry but banks asking to play fair sticks in my throat just a little bit (rant over!)

 

Here’s that link for you – paragraph 24 deals with the dismissal of the unjust aspect of the act.

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2000/278.html&query=wilson+and%20+pawn&method=boolean

 

Be prepared for a bit of a battle if you want the debt to be written off without instigating legal proceedings – they have nothing to lose by hounding you for the instalments and they hope you will cave in.

 

Keep all correspondence from the bank – preferably in the envelope it came in and write the date on the envelope of when you received it.

 

You will get lots of support from this community and if you have any questions then please ask away – it might take a while for the answer to come but it will come along.

[paulwlton]

Alter to suite and send them the letter below.

I assume you did forward a CCA 77-79 request including the statutoury fee?

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On the **DATE** I wrote to you requesting a copy of the credit agreement and other information under the Consumer Credit Act 1974 (Sections 77-79).

 

On **DATE** a member of your staff signed for delivery of my written request and I have an electronic proof of delivery showing their signature and the date.

 

To date you have failed to comply with these requests in any way, whether by confirmation of receipt of the request or by supplying the requested documents.

 

These documents I requested should be readily available as proof of your legal right to collect this account under the Consumer Credit Act 1974.

 

In my letter of the **DATE** I made a formal request for a copy of the signed, executed credit agreement for the above account under section 77(1) of the Consumer Credit Act 1974. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

If that request is not satisfied after a further 30 calendar days your client commits a summary criminal offence.

 

These limits have expired.

 

As you are no doubt aware section 78(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

And

 

(b) If the default continues for one month he commits an offence.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as 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 any credit reference agencies.

 

Should you refuse to comply, you must within 21 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 ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I 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 the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

BLAH

[Biggles9051]

Well, my final letter has been sent to Nat West and I am now waiting for their reply. After that it will be handed to a solicitor. I would like to say that I am confident that they will communicate with me and reach a compromise (which I am willing to do if they are) but sadly, I am more certain than ever that they will dig their heels in and attempt to bully me in to submission.

 

It's ironic, but a simple request for confirmation of the interest rate I am paying has opened up a hornets nest of problems, each of which they will have to address. These include:

 

Wrong interest rate.

 

Mis selling of the PPI (they told me it was compulosry and that only their policy could be used)

 

Adding the PPI to the loan (commonly referred to as a Single premium policy I think?)

 

Claiming that a blank copy of a CCA is legally enforceable and that it does not need to contain any prescribed details of the loan or any signatures.

 

Reinstating a direct debit that I had cancelled, claiming that this permissible (not sure how the BACS people would feel about this).

 

Claiming that I am trying to wriggle out of the whole agreement because I stated that I am within my rights to withold payment until resolved by a court becuase there is no proper CCA (despite the fact that I have continued to make payments and am willing to reach a compromise). I found this to be an insult.

 

Other problems that would take up too much space to detail.

 

I am sure they know they are in the wrong but are so haughty and superior, they cannot bring themselves to budge one inch. What I don't understand is that if they had addressed they interest rate problem initially it would have meant a difference of (approx) £1590. It now seems that they are willing to risk losing all future payments, repaying what has already been paid, reclaiming over £5000 of PPI and of course court costs (if they don't win). Not to mention possible fines for breaching the CC act and Justice act. This could total anywhere form £25,000 to £50,000.

 

Obviously I risk losing money if I don't win, but I feel so strongly about this that I intend to fight it all the way and win or lose, I will not be bullied by a company that feels it is above the law and can treat someone with such disdain.

 

I have also wondered why they allow themselves to receive such bad P.R. (loads of people read these forums after all) but I now understand that they just don't care. They have been to big for their boots for a long while now but since the Government bail out they now seem to think they are invincible. After all, if you and I have financial difficulties we have to dig ourselves out of the hole but banks on the other hand receive billions of tax payers money (that includes mine) to allow them to continue employing duplicitous tactics to swindle hard working, honest people out of millions of pounds (collectively). It's great to know that there is support out there, I value it all....thanks.

[paulwlton]

Could you scan and post up what they've sent you?

[Biggles9051]

Sorry,

 

No access to a scanner (not a computer geek ) but will ask around to see if a friend can do it. Is there anything in particular you think might help?

[Biggles9051]

Sent letter to Nat West. 7 days are up. No response - not even a "thanks very much, we'll get back to you". Checked to ensure they have received it and they have.

 

I bet they will be in contact when I cancel the direct debit........

[Biggles9051]

Still no response and patience run out so Solicitor appointed and battle lines drawn!!

[Biggles9051]

Received another letter from NW just a couple of days ago asking me to give them more time to investigate. Surely 14 months is long enough?