unenforceable loan

[Burtie]

I wonder if someone could point me in the right direction as I can't seem to post a new thread & this one seemed similar to my issue.

 

I took out a loan with Hitachi Capital in October 2007 with 6 months "interest-free". I then, as far as I was aware, repaid the whole of the £6k loan in March 2008 and got a letter from them stating "We acknowledge receipt of your recent payment and are pleased to confirm that the above agreement has been paid in full. If you pay by direct debit, please ensure you instruct your bankers....".

 

Foolishly, I didn't cancel the D/D and this month they took £194 out of my bank a/c. When I called them to ask why, they said I hadn't paid the full amount and the reason for the debit was because the amount I had paid them in March 2008 had now been used up & they were recommencing the payments (I had, effectively "banked" 9 months or so of payments which were used up each month, but the "bank" is now empty).

 

When I queried why this is happening, as I had received the above full settlement letter, the call centre person said it must have been issued in error and doesn't mean anything. I no longer have the records of all the payments I made and, in any event, I'm inclined to get them to prove they haven't misappropriated my funds against another account.

 

Does anyone know what the legal position is here please ? It's almost 12 months since I got the letter & they reckon I still owe them about £4k - should i just cut out the middle man & email the co-chairmen (David Anthony & Chris Shirai) to complain ?

 

cheers for any help

[newward]

pls speak to the site team to start your own thread - doesn't sound like your issue is similar to mine to be honest..

[newward]

I received the following letter from Experian today... kind of the response I expected, but.. at the end of their letter, they have explained, they have lately received general advice from the Info Commissioner ( whose letter of acknowledgement , I also received today )

 

sc0002740a.jpg picture by newward - Photobucket

 

I'll need all the help I can get from people on CAG. I have e-mailed 5 solicitors who "specialise" in consumer law - yet to receive feedback from any of them..

 

I feel like I have come this far - through help from everyone, and I feel like I need one last push to get this sorted - NatWest have admitted so many times that they don't have my agreement..today they tell me its now leaving their customer relations team, and is now being moved to their credit management services team - with input from their legal department,to help solve this issue.

 

Going back to the letter from experian - I think there are some templates on this site I can use, so I will certainly use those, but at this moment in time, I just have a sense of inertia , I really want to draw a line under this, and get it sorted - the CPR has been issued to them, so I am not sure what I should do next - do I just sit back.. forget about thinks, and wait for them/others to reply to me? patience is not one of my virtues, in case you may have guessed, haha. Can anyone help me here, please?

[davey77]

SO the ICO have finally sided with the CRAs. What a surprise. Seems then the only way to stop adverse data being added and/or clear your credit file is to attack (metaphorically speaking) the Lender.

 

Solicitors do take a little while to get back to you. My experience has been a week or two. Also i have heard that they don't replies to emails and that solicitors rely heavily on faxes.

 

I think you have to wait for the CPR deadline (which is when again?)

That will give you time to get some answers from a Solicitor and when/if you ask for disclosure from a Court you will be looked upon more favourably for waiting.

[newward]

The bank have another 3 weeks to reply to the CPR. I'm just a little frustrated at the moment. thx Davey.

[newward]

just a thought, given that Natwest have offered to refund me my PPI, would this go in my favour, should I take this to court? or should I exclude this from any information given to solicitors/FOS ?

[davey77]

Can't say how that would look in/out of your favour to be honest. You'll have to have a browse here and ask around on that one.

 

I wouldn't withhold anything from a Solicitor. If they are going to do a good job for you they need all the facts. (Withholding anything is just going to make it harder.)

If you go with the PPI and walk away then Natwest are still going to be after you for the balance and will mark your credit file. So i see no resolution without threatening, ending up in, or using a Solicitor to get them to a Court room.

[newward]

thanks Davey, makes sense, I see no legal presedence of this situation..some would compare that Rankine case, but I dont think its similar at all!

[davey77]

No, your situation is different. NatWest have admitted they cannot give you an original agreement. If/when they find it things would change, until then, you are in strong position.

 

When the 3 weeks are up for the CPR, hit them with the 2nd CPR letter from PT's thread (afraid you will have to wait a little again, recorded delivery) then go straight for LBA (14 days) and N1. By then you will know if they have anything different to say and if you will be doing it yourself from then on, or with Professional Legal help.

Edited February 2, 2009 by davey77
spelling

[davey77]

Newward.. In reference to your post on titney's thread about default concerns affecting your ability to get a job.

 

For arguments sake, and to mention to a solicitor (or in an LBA) i would take the view that a Default placed on your credit file, that has adversely and directly disadvantaged you financially (perhaps emotionally too) could be used in your favour by way of asking for damages.

 

For instance, if you can show (in a letter from an employer) that you didn't get a job as a result of them being unhappy with your credit status, i personally would add each weeks lost wages (that you would have been paid if you had got the job) to any claim you make for damages.

 

Just a thought. That could mean several weeks (until you do secure a job) of, whatever: £xxx.xxp a week etc

 

Also, i know it's not a gamble you are keen on, but being threatened with a default or even receiving a default notice, doesn't automatically mean a default will be placed on your file. It can take weeks/months for them to follow through with the threat and actually default you. Not guaranteed but something to consider.

[newward]

totally understand, thx Davey. I could be in a job by the time they have attempted to default me.. and..even then I would fiercely contest it with a notice on the account. Also re my other post, this guy I am talking to, is very interested.

[Biggles9051]

Hi, I am at the same point as you (more or less). What I have found is that the Banks, the Financial Ombudsman and the credit reference agencies are either completely ignorant of the law or choose to flout it constantly with no regard for anyone that their violations affect.

 

Nat West have advised me that they will apply a default to my account despite being advised that this would be illegal. The person I have been dealing with has stated "Well, I don't know about the law: all I know is that we will apply a default no matter what if you don't pay".

 

As far as I can tell, you are quite right that the loan is unenforceable and only by standing up to them can we bring about a change to their attitude and ensure that others do not suffer from the same incompetence, beligerence, arrogance and unlawful behaviour that they seem intent on pursuing.

 

I am intending to start a petition on the 10 Downing street website asking for the issue of defaults being applied when accounts are in dispute to be stopped as I feel that currently, the general public is being let down by a lack of enforcement of laws which are set in statute.

 

Unfair application of defaults can affect not only an individuals credit rating but also career prospects (such as entry to the police force) and I think it is time that the issue was highlighted. I think it is only a matter of time before a bank is landed with a lawsuit for destroying someone's career / life. May be if they have to pay out millions they will begin to see the law more clearly.

 

I will post the link as and when I manage to get the petition started.

 

Best of luck and hang in there - they will try and break you.................

[bathgatebuyer]

Hi all - got the first part of my CCA issue with Sainsburys bumped by the FOS today. They say the appropriate forum for me to do that would be the courts. Not suprised at all by this as they routinely turn around with CCA matters and say, "Not our area" and I've seen a few people on here have this response.

 

They acknowledge that Sainsburys didn't even send me terms and conditions for nearly 10 months but have said nothing about them seeking to enforce the card in the meantime as well as process info to credit reference agencies.

 

They say that 'enforceable' relates to 'enforceable in a court of law' and that the 'normal administrative operations of the account such as charging interest, or seeking repayment is not disputed'.

 

They also say that the fact that I have been continuing to make payments to the account suggest that there is no 'dispute' in the OFT sense and that I am not disputing any debt to Sainsburys (Rather than a recognition that I need a good credit record to work and that forcing the situation into a default to get taken to court to resolve the CCA issue would be damn near useless for me if I had to resign from work!)

 

Also that the OFT do not prohibit interest of charges being added to loan accounts when in dispute and not credit card accounts.

 

The Bank are deemed not to require to forward copies of the term of the agreement at the time it was opened but can get away with current terms and conditions.

 

That the correct course of resolving this would be in court if I was a defaulting debtor (so, they're effectively asking me to stop paying and force Sainsburys to take me to court!)

[davey77]

Biggles:

 

"What I have found is that the Banks, the Financial Ombudsman and the credit reference agencies are either completely ignorant of the law or choose to flout it constantly with no regard for anyone that their violations affect."

 

The second part of that is the most true. They are not ignorant, they know exactly what they are doing believe me.

 

"Unfair application of defaults can affect not only an individuals credit rating but also career prospects"

 

Lots of different angles to this. I want to move to be closer to family and friends (the other side of the country) being a carer for mum.. that would help. Her brother died a week ago but she couldn't travel that far. What stops me moving? Poor credit file! No estate agent in the country will take me on without a guarantor which we don't have.

 

Bathgatebuyer:

 

Want more confirmation of how biased and prejudiced the FOS are then skim through my 'carers allowance' thread from the beginning of last year or look a few pages down in Davey vs Cap1 to see the blatant, biased, one-sided viewpoint of the F.O.S. (The 'F' stands for FULL and the 'O' stands for OF.. you can guess what the last word is.)

[bathgatebuyer]

I'm now seriuosly considering a 'no win, no fee' company to deal with this now, although i think their advice is the same, "Pay them nothing, let them chase, let them default and then let a judge decide".

 

Unfortunately I work for a financial services company managing certain specialist accounts so a default for me would mean goodbye to my job..................income...............home...................

 

Surely there's a fairer way than this to resolve such matters?

[davey77]

I'm now seriuosly considering a 'no win, no fee' company to deal with this now, although i think their advice is the same, "Pay them nothing, let them chase, let them default and then let a judge decide".

 

Unfortunately I work for a financial services company managing certain specialist accounts so a default for me would mean goodbye to my job..................income...............home...................

 

Surely there's a fairer way than this to resolve such matters?

 

Doesn't have to be a 'no win no fee' claim sort of company. A good solicitor specialising in Consumer Credit Law is what you want to seek out.

[Biggles9051]

I too have considered a no win no fee company but decided against it for two reasons:

 

A) My ultimate aim was never to have my deby written off - just to ensure that I am being charged the correct rate and

 

B) The company I contacted wanted me to make payments to them until the situation is resolved but didn't give any gaurantees as to how long that would take so I could end up paying out just as much - just to a different recipient.

 

Sadly, and quite nerve wrackingly, I have decided to fight it alone. I may be beaten but it won't bve through lack of trying.........

[davey77]

I too have considered a no win no fee company but decided against it for two reasons:

 

A) My ultimate aim was never to have my deby written off - just to ensure that I am being charged the correct rate and

It's up to you.. it's your debt and your right to play it the way you want. Just remember, creditors have no morality or ethics in relying on the Law to enforce a debt even when it means a family is thrown out on the street. I see no reason why we should treat the financial organisations any differently when the situation is reversed.

 

B) The company I contacted wanted me to make payments to them until the situation is resolved but didn't give any gaurantees as to how long that would take so I could end up paying out just as much - just to a different recipient.

Then it was the wrong company and not professional. Real, genuine and professional Legal Firms don't operate that way.

 

Sadly, and quite nerve wrackingly, I have decided to fight it alone. I may be beaten but it won't bve through lack of trying.........

Well done! You'll be surprised at yourself in the end don't worry. Even if it turns out diffently to how you expect. You'll be stronger than you were before.

[newward]

Biggles/Bathgate... I am speaking to someone at the moment. I'll check in with him tomorrow. We are all in a state of limbo, technically we know we are right to be doing what we doing, because we all have the same feedback from the bank - we cant take you to court to recover the debt... BUT we sure as hell can take you to court RBS/NATWEST!! out of interest, have either of you sent the the CPR 31.16 or LBA?

[newward]

I'm now seriuosly considering a 'no win, no fee' company to deal with this now, although i think their advice is the same, "Pay them nothing, let them chase, let them default and then let a judge decide".

 

Unfortunately I work for a financial services company managing certain specialist accounts so a default for me would mean goodbye to my job..................income...............home...................

 

Surely there's a fairer way than this to resolve such matters?

 

I too work in financial services.. or I did, until I got made redundant very recently.. so as per a previous post of mine, I have concerns around a default affecting my ability to gain a job, when the file is checked. Davey made some good points around that though. There is another poster sequest, who is in our situation as well.

[newward]

Ok, so this is obviously up to you guys. I just text him, this is his e-mail : [email protected] . He tells me he is meeting with lawyer with a view to commencing cases within the next couple of weeks. I have watched this guy post on MSE over the last couple of months. He really knows his stuff, and is not touting for business on that site. I have e-mailed only the documents I have posted on this forum( ie with personal details edited out ). I'm no mug, if you know what I mean, and I truly believe its worth speaking to this guy..at least even send a speculative e-mail to him, check some of his posts on MSE. Let me know what you guys think?

[Biggles9051]

Hi,

 

Sorry but I'm not sure what "CPR 31.16 or LBA" are - please let me know in case I have missed something vital.

 

Thanx

 

[newward]

Hi Biggles, if you check my thread out, you will see that I have constructed the letter with the help of Davey, and a stickie from the legal section. A 31.16 is something that you issue to the company, when you intend to go down the Civil Prosecution route, as I understand it. You may have done a subject access request like me, quoting various parts of the CCA 1974 etc.. but this is essentially to make the company aware that you intend to instigate proceedings against them. You give them about 4 weeks to reply. Again, as I understand it, the LBA - letter before action, is a 2nd chaser letter, perhaps slightly more aggressive in tone, asking why they haven't replied to your first letter, and to inform them you are now taking legal action.. then I think you need to get an N1 form or something - all those kinds of details are within the legal forum. You don't have to worry about courts and costs, and these forms, etc yet, as you are essentially giving the bank, another 2 months ( up to ) to respond to you...You use the letters to get them to heed your warning that you are very serious. From what I read on other posts, its only when the threat of litigation surfaces, do they actually sit up and take notice. Its like, I'll see you in court please, and by the way, bring this document that we are talking about please.. oh you dont have it? it can literally go one of two ways, you'll either have a judge that will take the company to task on record keeping etc, or a judge who will take a view on you, rather than the actual law.

 

I'm speaking to someone at the moment, who I mentioned earlier. He is now speaking with a specialist solicitor.. I'll report back on here, the conversations we have. On a separate note, I was sent a letter offering a gesture of good will , related to a PPI claim .. £600.. only another 6 letters- different loans I have settled, to come to me.. should average out at that amount for each letter.

[sequest]

NatWest Solicitors have now issued a Court Claim form regarding my loan, despite the fact that they have admitted they cannot find agreement and the PPI is in dispute.

 

Any help on my next move would be gratefully received. Link to my thread:

http://www.consumeractiongroup.co.uk/forum/payment-protection-insurance-ppi/163968-rbs-loan-ppi-3.html#post1980098

[newward]

All I can do is monitor your situation with interest. As you know I have made some enquiries of my own, but what you have received from Natwest, they are yet to furnish me with... best of luck