Loopyloopy v Natwest

[loopyloopy]

Some of you may have read my very long post before, HELP needed re Natwest..

 

Anyway the story so far...

 

Natwest are taking legal action for a loan that my husband beleived he took out nearly 10 years aago. However Natwest are claiming the loan was taken out in 2004 by way of refinancing the original loan.

My DH did make increases on the loan but was not aware at the time that he was taking out a brand new loan.

 

Anyway we had a directions hearing in January and Natwest basically admitted to the judge that they do not have a credit agreement. This did not make any differance to the judge and he said they could still go ahead with their proposed directions for the case.

The Judge didnt hardly let DH speak, went for most of natwests directions, When he questioned about NatWest being ordered to supply a credit agreement the judge told hubby that he was unable to order them to supply an agreement as they have already admitted they havent got one. Judge has said that they need to compile all documents for evidence etc that husband took the loan. Judge also mentioned that credit agreements only count forr debts below 25000 and as NatWest are claiming more its not needed!!

 

 

The directions are listed below.

 

the claim is allocated to the fast track

they claim is stayed for three months for settlement and narrowing of the issues

the parties will inform the courts by 9th april if settled

There be an exchange of evidence by standard list by 4pm on 23rd april

any requests for inspection or document to be made by 4pm on 07 may

2009 with documents supplied by 4pm on 14 may 2009

there be simultaneous exchange of witness statements by 4pm on 11 June 2009

CMC not phone hearing 45 minutes 23rd June

 

What I really need help with is the directions that have been ordered. For example what am I required to do for the exchange of evidence?? What are they required to do?? I have already put in my defence which is based upon them not being able to provide a credit aagreement. Also have had loads of descrepencies on the statements for example 15,000 was paid into the account as loan funds on one day and withdrew the following with no explanation.

What does standard list mean??

How do you simultaneously exchange witness statements, what do we write.

Im so confuesed as to it all and really stressed, think it may be hormones too as Only had my baby last saturday.

Natwest havent even contacted us since the court case to try and settle in anyway is that normal considering they where the ones who asked for a 3 month stay to settle and narrow issues.

 

Thanks for all of your help in advance.

 

Lisa

[loopyloopy]

Can anyone help please!!

[loopyloopy]

Hello can anyone please please try and help me.

[palomino]

This is obviously beyond the scope of most people here - including me.

 

Bear in mind that almost nobody here is on the forums full-time so it may be a little while before someone appropriately experienced logs on. I'd give a day or so.

[loopyloopy]

thanks for replying.

[loopyloopy]

Hi Is anyone yet able to help or advise me or help me. If not can anyone point me in the right direction to obtain the information I need. Thanks

[steven4064]

loopyloopy

 

You have to send them a list of the evdience you have - see para 3.1 in PRACTICE DIRECTION – DISCLOSURE AND INSPECTION

 

For evidence, you should list everything you have which is relevant - your letters asking for an agreement and their replies, your statements, etc

 

The witness statement is basically your statement of case - more detailed than you rdefence - it will reference statutes (CCA, CC regs, etc) and case law that is relevant. If you used a pt2537 defence you will already have done most of the work and you can probably resubmit it as a witness statement. If you didn't use a pt defence then you can use one to produce a witness statement.

[shakespeare62]

Hi Loopy !

 

Here is a sample Disclosure List, also viewable on the following link :-

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended-6.html#post1347693

 

In the XXXXX County Court

 

 

Claim number: 7XOxxxxx

 

 

 

 

 

 

 

HFC Bank Limited – Claimant

 

 

 

 

And

 

 

 

 

Robcag – Defendant

 

 

 

 

 

 

 

 

 

 

DISCLOSURE BY LIST - of - Robcag – DEFENDANT

 

 

 

 

 

I, Robcag, of xx xxxxx, xxxxx, xxxxx, xxx xxx, being the defendant in this case, intend to rely on the following documents in court:–

 

1. Correspondances

 

(A) Open letter from Restons Solicitors to Robcag, advising payment agreement to be reviewed, dated 20th August 2007.

(B) Copy of County Court Claim form issued by Claimant, dated 31st August 2007.

© Copy of formal request, dated 3rd October 2007, from Robcag to HFC Bank Ltd. requesting a copy of the relevant executed Consumer Credit Agreement under S.78 Consumer Credit Act 1974, together with copies of cheque sent to cover statutory fee, and proof of posting and delivery.

(D) Copy of formal request, dated 3rd October 2007, from Robcag to HFC Bank Ltd. requesting under the Civil Procedure Rules for disclosure of documents upon which the claimants are reliant on in court, with proof of posting and delivery.

(E) Court Document: Acknowledgement by court of receipt of defence entered, dated 4th October 2007.

(F) Copy of letter from Robcag to Restons Solicitors Ltd., dated 8th November 2007, advising non-compliance of their clients regarding CPR request, (enclosing copy of letter listed at (D) above), and formally requesting from Restons Solicitors under the Civil Procedure Rules for disclosure of documents upon which they are reliant on in court, with proof of posting.

(G) Proof of delivery to Restons Solicitors on 13th November 2007 of letter Listed at (F).

(H) Court Document: Advising Allocation Questionnaire enclosed, dated 8th November 2007.

(I) Copy of Allocation Questionnaire completed by Robcag (with additional information sheet) as returned to court, dated 27th November 2007.

(J) Letter from Restons Solicitors to Robcag, acknowledging receipt of letter listed at (F), dated 19th November 2007, received 23rd November 2007.

(K) Letter from HFC Bank Ltd. to Robcag advising Guide to Internal Complaints Procedure enclosed, dated 30th November 2007.

(L) Court Document: Standard Order for stay, dated 4th December 2007.

(M) Letter from Restons Solicitors to Robcag, advising documents enclosed, dated 21st December 2007.

(N) Copy of a Credit Application form, entitled “PRIORITY APPLICATION FORM”, referred to as “Credit Agreement dated 23 September 1994” by Restons Solicitors in the letter listed at (M).

(O) Copy of a document entitled “GENERAL INFORMATION ABOUT YOUR GM CARD”, referred to by Restons Solicitors in the letter listed at (M).

(P) Copy of a Default Notice, issued by HFC Bank Ltd. to Robcag on 1st February 2007, and stated falsely by Restons Solicitors to be dated 4th February 2007 in the letter listed at (M).

(Q) 7 Monthly Statements of Account for 7 individual months, dated respectively; 27th December 2005; 25th January 2006; 26th February 2006; 25th October 2006; 26th November 2006; 26th December 2006; 25th January 2007; each of which shows unlawful penalty charges added to the account balance.

® Amended defence submitted by Application to the court by the defendant, dated 27th December 2007.

(S) Copy of N244 submitted to the court on 28th December 2007 requesting permission to amend defence.

(T) Copy of covering letter, dated 27th December 2007, from Robcag to the Case Manager at the court, to accompany application form N244 and draft of amended defence.

(U) Receipt for payment of Application to the court in the sum of £40.00, dated 28th December 2007.

(V) Court Document: Notification of Allocation to the Fast Track, with Orders, dated 3rd January 2008.

2. Authorities and Case Laws

 

 

(AA) Civil Procedure Rules, Rules & Practice Directions.

(BB) Consumer Credit Act 1974

(CC) Consumer Credit (Agreements) Regulations 1983

(DD) Consumer Credit (Agreements) (Amendment) Regulations 2004

(EE) Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983

(FF) The Administration of Justice Act 1970

(GG) Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

(HH) Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

(JJ) Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339

 

 

Statement of Truth

 

I certify that I understand the duty of disclosure and to the best of my knowledge I have carried out that duty. I further certify that the list of documents set out in this List is a complete list of all documents which are or have been in my control and which I am obliged under the order to disclose.

 

I believe the facts stated within this document to be true and the document comprises of two pages.

 

Dated this 25th day of January 2008.

 

Signed

Robcag

[shakespeare62]

Remember to add in the Consumer Credit Act 2006 to the above list.

 

This is because you will need to emphasize in your witness statement that

the in the above Act, section 11 of SCHEDULE 3, Transitional Provision and Savings prevents the repealing of section 127(3) for agreements entered into prior to the CCA 2006 coming into force..

 

Also, there is some useful Court Info regarding the disclosure List which I believe can be attached to Form N265 :-

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex305.pdf

[shakespeare62]

An example of how to incorporate a Defence into a Witness Statement is on this link :-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/148840-enforcable-agreement-mbna-help-9.html#post1900808

 

Remember, though you will want to use a good defence based on e.g. PT's sample defence (I'll try and dig that up shortly).

 

I would also bring to the Courts attention that under the MONEY LAUNDERING REGULATIONS 1993, 2003, 2007 the Creditor would be required to keep all key documents and credit Agreements for 5 years after the a business relationship has ended..

[shakespeare62]

Here is a link to PT's sample defence which I belive Steve4064 was referring to in his post above :-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/144007-help-amex-no-cca-3.html#post1549360

[loopyloopy]

Thanks so much. Im going to get everything together to send. Would it be more beneficial for me to send it closer to the date or is it ok to send it early??

Thanks

[shakespeare62]

I would get everything ready as soon as you can, THEN spend some time cross checking everything for any typos e.g. check you've spelt the Claimants Name correctly, typed the correct claim number etc.

 

Then I would post it up (with your ID, Claim no etc. removed) for any comments before submitting to the Court. This will give you time to improve your witness statement and eliminate any weak points, rather than leaving everything to the last minute.

[shakespeare62]

I would also consider firing off a Recorded Delivery letter (Special Delivery if possible) to NatWest regarding their breach of the Money Laundering Regulations. IT IS A VERY SERIOUS MATTER.

 

The following link gives an example of what to say - you'll need to adapt it. They can be reported to the Financial Crime Branch of HM Treasury (and other authorities for breaching these regulations) :-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/93884-wescot-rbofs-oh-dear-2.html#post935411

 

In your letter to RatsNest, you might add your are aware that according to various recent media reports including the Times Online 25 January 2005, RBS is being investigated by the police for "Fraud" (make sure you put this quotes). Be sure to quote the link to the times article below :-

 

Police launch inquiry into RBS ‘fraud’ - Times Online

 

Inform them you also intending to bring their breach of the Money Laundering Regulations to the Courts attention.

 

You will also need to add a section on their breaches of the Money Laundering Regulations to your witness statement. e.g :-

 

"MONEY LAUNDERING REGULATIONS 1993, 2003, 2007

 

The Defendant would also bring to the Court’s attention that the Claimant is required by The Money Laundering Regulations 1993, 2003 and 2007 to keep key documents and credit agreements for 5 years after a business relationship has ended. Failure to do so is a serious matter reportable to the Financial Crime Branch of HM Treasury"

 

 

Assume the judge knows nothing about the Consumer Credit Act 1974. The Judge needs to be "spoon fed" the solution not the problem. So in your defence, refer and quote wherever you can to cases in the House of Lords and the Court of Appeal, as well as the relevant acts of parliament.

Edited March 14, 2009 by shakespeare62

[shakespeare62]

You've got plenty of "ammunition" above to use. A good tactical letter to NatWest could be useful.

 

Money Laundering is also something which Solicitors are "struck off" for. So it should be a major 'heads up" for their solicitors. Try a google search for "solicitors struck off".

Edited March 14, 2009 by shakespeare62

[shakespeare62]

The comments below are worth bearing in mind. they are also taken from the above quoted thread at :-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/93884-wescot-rbofs-oh-dear-3.html#post941140

 

"The relevant Acts and regulations relating to money laundering (and record keeping accordingly) are along the lines of The Money Laundering Regulations 2003, The Proceeds of Crime Act and The Anti Terrorism Act. I think it's also in one of the drug enforcement acts as well and probably a few others.

 

Each of the offences can lead to up to a 2 year jail sentence and/or a fine. The exception being the anti terrorism act which can lead to a four year sentence and/or a fine (a little more serious than not providing an agreement)."

Also please be aware that The Financial Crime Branch of HM Treasury are the gestapo of the regulatory world.

Edited March 14, 2009 by shakespeare62

[loopyloopy]

Thank

[loopyloopy]

Thank you for all of your help imm trying to get it all together not easy though with a 2 week old baby lol.

what do you think the chances are that natwest will just stop pursueing the debt? they do not have an agreement, abd have admitted so to both us and the judge.

[shakespeare62]

Personally, I think with a skillfully conducted defence - they haven't got a leg to stand on. But you must quote as much as you can from previous cases in the House of Lords and Court of Appeal where similar issues have already been decided. (Wilson V FCT is one, Wilson v Hurstanger is another) That way the District Judge may think twice before giving a judgement that flies in the face of these binding rulings.

 

You must also be prepared to appeal any adverse judgement he/she gives. You are bound to win.

 

I appreciate it's not easy with a 2 week old baby. In fact you're extrememely courageous to be fighting this case on top.

 

Try and take thinks one step at a time. I'll see if I can ask site admin to look in and offer more help....keep your chin up.

[MARTIN3030]

Its difficult to say whether NW will continue or not.

Can you say if you have made a start on putting together any of the paperwork thats been suggested-ie case refs etc ? Which part do you think you will be struggling with ?

[shakespeare62]

Natwest are claiming the loan was taken out in 2004 by way of refinancing the original loan.

 

Excellent - by their own admission to the Court then, this was a multi-part agreement. This should allow you to successfully argue that the invidual parts were each under 25K and therefore regulated by the Consumer Credit Act 1974. Here's why :-

 

The agreement consisted of 2 different types of credit which cause it to be a multi-part agreement.

 

1) Restricted Use Credit. This would be the amount that was used to settle borrowing on the existing loan. It's restricted use - because you could not used it as you pleased. Furthermore because it was used to settle on of their OWN loans - it would have been settled internally by RatsNest. i.e. you would never have seen that money. You only received what was left over after they paid this loan off.

 

2) Unrestricted use Credit. This is the 'cash loan' the amount that you would have received AFTER the original loan was settled. You would have been free to spend this as you wish.

 

Basically each of the above types of credit are classified as a separate agreement, so they must be listed in the agreement document with each part containing its own prescribed terms.

 

Providing therefore that old loan which was refinanced in 2004 was at least 3K and the cash part you received in the new loan was at least 3K (I can't honestly imagine it was less in view of the fact that RatsNest are now claiming circa 28K - according to your other thread), then that puts EACH PART OF THE AGREEMENT WITHN THE 25K LIMIT REQUIRED BY THE CONSUMER CREDIT ACT 1974.

Edited March 19, 2009 by shakespeare62

[shakespeare62]

A good explanation as to how the invidual parts are classified as different types of credit - in relation to the Consumer Credit Act 1974 is on the post below :-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within-37.html#post1970651

 

You can ignore the bits mentioning PPI 'loan insurance', and also the bit regarding "partly regulated agreement". It is unlikely that yours was partly regulated due to the figures. Even if it was partly regulated - RatNest would still need to produce the agreement for the Regulated Part - which would by definition be on the missing document.

 

You now have a very forceful argument suggesting that the this was a multipart agreement with each part regulated by the Consumer Credit Act 1974 due to each part being

 

Please take time to look through the post link I've given. It's easy to let your eyes glaze over, but if you take it slowly step by step you will understand it.

 

To understand it - you will need to look at each Regulation mentioned in the above post. You can find a load of Regulation links here :-

 

http://www.consumerforums.com/resources/templates-library/57-statutes/176-consumer-credit-act-1974-and-related-regulations-.html

http://www.consumeractiongroup.co.uk/forum/statutes-library/27535-consumer-credit-act-1974-a.html

 

You can find the Consumer Credit (Total Charges for Credit) 1989 Amendments ...here :-

 

The Consumer Credit (Total Charge for Credit and Rebate on Early Settlement) (Amendment) Regulations 1989

Edited March 19, 2009 by shakespeare62

[shakespeare62]

You now have a 3 pronged attack on RatsNest :-

 

1) Multipart Agreements - regulated by the CCA which would require production of the executed agreement containg all the prescribed terms to be enforceable by a Court under section 127(3) of the Act.

 

2) Breach of Money laundering regulations by RatsNest, for failing to keep the agreement copies.

 

3) Breach of Data Protection Act 1998 - as you have not given RatsNest your signed consent for your Data to be processed by other parties including Credit Reference Agencies. I think this leaves RatsNest open to a section 10 notice under the Data Protection Act 1998. I think you should mention these points in your witness statment, but you'd need to apply for an order to enforce the s10 notice as part of a counter claim or a separate claim. Here's a link to a post regarding s10 notice to stop processing your Data :-

 

http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/178942-cca-request-reply-link.html#post1959471

[shakespeare62]

You must be exhausted - what with a baby daughter, however take things step by step, try and get Dear Husband or a friend to help if they can.

 

Have a stab at getting down points for a witness statement then post it up. Reply to Martin3030 as well. Pm him if necessary - he might know a legal bod on the site who can have a look .....

 

It sounds like the Court have given you some time which is good.

[shakespeare62]

bump

Edited March 19, 2009 by shakespeare62