Lou89 Vs Natwest (CCA Request)

[Lou89]

Hello everyone,

 

First of all I would like to point out that all the letters that I have used and will be using are templates from the helpful people of this website and I intend to thank them by donating to this website and posting up my experiences to help others.

 

To start from the beginning...

 

I sent a CCA request to the Natwest Bank along with the £1 postal order back in March after having a funny feeling that the the agreement for a £10,000 loan didn't exist as they are always trying to convince me to consolidate my loan and overdraft with a new loan etc

 

I received a response in April stating the following:

We refer to your correspondence dated XXXXX, and apologise for the delay in our response.

 

We regret to advise that the 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 made under S.77 (1) of the Consumer Credit Act and return the £1 you paid. Notwithstanding this the loan agreement remains valid, and we expect you to continue to meet your obligations under the agreement. We should point out that if you do not resume making payments cease to make future payments as they fall due we will report the default to Credit Reference Agencies ("CRA's").

 

If you require more details about your loan we will be please to supply whatever details we have in our records. should further assistance be required, please do not hesitate to contact us at the above Office.

Attached to this was a "Statement of Financial Information" with details of how much had been paid so far, how much is remaining and when it is due etc.

 

My responce to this was to put the account into dispute

 

They then responded as follows:

We explained in our letter of 14th April 2009 that we were unable at this time to supply a copy of the loan agreement. It is axiomatic that as a consequence of this failure the effect of s.77(4) means that we cannot enforce the agreement. We do not dispute this fact

 

What we pointed out is that the loan agreement remains valid ie section 77(4) does not make the agreement void. The debt exists and we are entitled to carry out all actions that do not amount to enforcing the agreement. Reporting to Credit Reference Agencies, your failure to pay sums due under the agreeement is not 'enforcing the agreement'.

 

Section 170(1) excludes all criminal or civil sanctions for breach of the Act, other than those expressly provided by the Act. The consequences of failing to comply with section 77(1) are set out in section 77(4).

 

It would seem that your position is that oiur reporting your default to CRA's is 'enforcing the agreement'. We do not share this interpretation of the disability we suffer by not being able to enforce the agreement.

 

We accept that if you continue not to meet your obligations under the agreement it would be futile for us to raise court proceedings against you as you would simply seek a stay of the proceedings pending our compliance of the section 77(1) request.

 

As the only point of difference between us concerns the meaning of not being able to enforce the agreement we suggest that you reconsider your position and advise us accordingly.

 

So we thought about it... and worked out how much is left on the loan (excluding interest) less the bank charges we have had on the current account that we would have been claiming back which actually gave us a figure that they would owe us and then took this from the overdraft. Offering them a full and final settlement of the remainder of the overdraft after this calculation.

 

We are waiting for a response as to whether they will accept this before sending the cheque.

 

I will keep you posted and if anyone has any advice it would be grately appreciated!

 

Lou89

[davey77]

It's your right to play it out the way you see fit and what you feel is the best option for you but personally i wouldn't have paid them a penny. Your position is very strong and they have admitted to that.

 

Having said that i can understand you wanting to sort this out once and for all as it's a long road to take (even when you are in the right) and would probably involve Court Action by you to get a result one way or the other.

 

Good luck tho, hope you get the result you want. You may be interested in these similar threads where the Creditor (again Natwest) has 'misplaced' the agreement and it cannot be enforced:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/177986-unenforceable-loan.html

 

http://www.consumeractiongroup.co.uk/forum/natwest-bank/179841-natwest-have-lost-my.html

[Lou89]

Thank you for such a quick reply!

 

The reason for me offering them a full and final settlement is that I really do not want a default put on the credit record as we are looking toward purchasing a house in the near future and would need a mortgage to do so. As they do have the agreement for my overdraft (of £500) and in this instance I would be offering them just under £300 for full settlement of the Loan and overdraft it would save us just over £200 and may stop us from incurring a default... Well thats my theory anyway and its certainly worth a try!

 

Do you think there is a chance of them accepting this, as you say they have admitted that we are in a strong position so surely to get something out of us rather than nothing would be to their advantage??

 

I have a feeling that they would turn this down to start with and then possibly accept at a later date when they realise otherwise the will get nothing?

 

Thanks, Lou89

[davey77]

It's possible they could accept it based on their own admission they cannot enforce the loan account but it's never that easy usually.

 

They might take the £300 as F&F for the £500 overdraft but as for the separate issue of the loan it's mostly likely they will take the approach as per the other threads i gave links to and continue to try to pursue you for the balance with various DCAs over time hoping to wear you down and extract cash from you.

 

Wait and see if they accept or what the tone of their response is but you may have to get tough with them and issue a Letter Before Action informing them of your intention to start legal proceedings. These days it's generally the only language Creditors (even those in the wrong) understand.

 

2 years of battling over 2 irredeemably unenforceable agreements and I've have been through 15 Debt Collection Agencies in total and haven't moved forward. The only win i have had is when i started legal action. (£1,500 written off with Cap1).

[Lou89]

Ok thank you for your help, I have had a look at the other two threads and shall wait for a response from the Natwest. As soon as I hear anything I will post it up on here.

 

Thanks once again

[davey77]

No worries.. good luck.

[davey77]

Another thought, in case you weren't aware, is that a F&F will leave the credit file marked satisfied or settled. Certainly that's a lot better than a Default in terms of getting a mortgage but in terms of what you could potentially get from a successful legal challenge (if it actually got to Court or not) could be possibly better for your credit file.

 

Argument being: no agreement means no permission to process my data so clear all records pertaining to this account with the CRAs. It's been done.

 

I realise tho that time isn't on your side as you want to get a mortgage sooner rather than later and Cap1 defended for 8 months before caving in 3 days before the hearing date in my case.

[Lou89]

If they accept my proposal to pay just under £300 as a full and final settlement of the loan and overdraft, I had planned to send the cheque along with a letter basically saying...

 

Further to your acceptance of my proposal dated XX/XX/XX, in which I offered a full and final settlement for the above mentioned loan and overdraft of £XXX. Please find enclosed a cheque to the value of £XXX.

 

Upon the encashment of this cheque I expect written confirmation of the full and final settlement and that all data relating to the above mentioned accounts has been removed from my records with the Credit Reference Agencies.

 

If you have any queries, please do not hesitate to contact me within 14 days at the above address.

 

Or words to that effect... Would that work?

[davey77]

hmm it's most probable that method has little chance of success in my opinion. Unless you can confirm in writing what steps they will take to amend/clear your credit file to your satisfaction before you send the cheque it's most likely that they will cash the cheque and then do what they want with the credit file.

 

Creditors would rather cut off their own arm than remove all adverse file data.

 

If they write and say categorically "your F&F is accepted, obligation to pay the balance discharged and credit files cleared of all data", and as long as that letter does is not headed "Without Prejudice" (so they can back out later without fear of that being produced in Court as evidence) then all great and good.

 

Most probably though they will hold on to their perceived right to do what they want to your credit file so you must make sure that you have written confirmation of their intentions before they have a cheque in their grubby hands.

 

Guess it depends how you worded your proposal to settle letter and if they reply correctly. Be careful of the wording of any agreement to settle also. Sentences like "part F&F settlement" or that they "may then discharge the remaining balance upon receiving your cheque" are completely meaningless and not binding upon them.

 

Part settlement means you will still owe the remainder.

 

'May then discharge' instead of 'will then discharge' is guaranteed to mean they won't discharge anything but will cash the cheque, wait a month then start demanding the remaining balance is paid in full.

[Conniff]

You should SAR them again and highlight which part you are mainly interested in, in this case, your permission for them to share your personal data with someone.

 

As they haven't got the agreement, they may still have the application where you will have ticked a box to give your permission on which they may wrongly try and rely on the further processing.

 

If they do not supply you with the information required, you can report them to the ICO and ask them to remove any adverse entries they have made to CRA's.

 

Your main concern on any entries made is: "causing you unwarranted and substantial damage or distress" and will be a valid reason under the DPA for their removal and the cessation of any further entries.