Loopyloopy v Natwest

[loopyloopy]

Thanks andy, do you think im required to write a witness statement prior to the cmc in september if so do you have any info or templates you can point me in the direction of.

 

Thanks

[AndyOrch]

Hi Lisa

 

Heres one I did for Tonka this week which was successful.You can either submit a WS or a skeleton argument if you feel it will help proceed your case.I would check your directions for the CMC and see what would be suiytable.

 

Ok this is how to format your WS and should contain evidence refuting the Claimants Statement.You can edit/add the finer details to suit your case dates etc..

You will have to add the header Name v case number etc

 

Witness Statement

 

 

1 This statement is made in opposition to the Claimant’s application for summary judgment and by which the Claimant contends I have no real prospect of successfully defending the claim against me.

 

2 I do not deny that a contract once existed between me and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Defendant terminated the contract.

 

3 I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

 

4 At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

 

5 The Claimant contends otherwise and in support of its contention that a compliant default notice was delivered to me relies exclusively on a screenshot from a “Mida” system that shows the entry XXXXXXXXX NOD

 

6 I understand the claimant claims that NOD stands for Notice of Default.

 

7 The claimant has already admitted in a letter dated xxxxxxx that they are unable to produce a copy of the default notice.

 

8 At trial I will contend that the screenshot is inadequate for the purpose of demonstrating the Claimant delivered a compliant default notice. Under Section 88 (1) of the Act, for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken and if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

9 The screenshot evidences none of these things. The Claimant has already given notice that it will be unable to give discovery of the default notice relied upon. In the absence of production of a copy of that default notice together with evidence from a witness having first hand knowledge that the copy so produced was delivered to me, stating the date on which and the means by which the default notice was delivered to me, contrasted with my evidence to the court that a default notice was not delivered to me, I contend that I have more than reasonable prospects of successfully defending the claim against me.

 

10 Moreover, The claimant claims the default notice was sent on the XXXXXXXX and that the default notice if it could be seen by the court would show it had allowed XX days for me to rectify any default mentioned in it. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have allowed XX days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time), it is telling in terms of the Claimant’s credibility that if the notice was delivered on the XXXXXX and gave XX days for me to rectify any default mentioned in it as the Claimant appears to contend, that the claimant’s solicitor sent a Letter Before Action on the 14th April 2008 demanding payment, being just XX days after the claimant claims the default notice was sent.

 

11 The delivery of the letter before action is good evidence that on or before XX XXXX, the Claimant terminated the agreement.

 

12 In any event, if contrary to my contentions and expectations, the Claimant should prove at trial that a default notice was delivered to me on XXXXXXX the Claimant will be unable to show by reference to that default notice that it subsequently became entitled to terminate the contract. If the termination followed on from the delivery of the default notice on XXXXXXX and which gave to me XX days to rectify any default mentioned in it, the termination of the agreement prior to the expiration of the period given to me in the default notice was a termination which did not then entitle the Claimant to demand earlier repayment.

 

13 Without Prejudice to my main contention set out above, the claimant now claims without any good or proper explanation, that the value of the original claim is incorrect and They therefore request the claim value to be amended to £XX XXX XX. Yet they have failed to provide proof of how this figure has been arrived. The claimant’s solicitor however did provide an Appendix which showed various calculations.

 

14 In the circumstances and in addition to my main contention, I contend that until such time as the Claimant has established a legal entitlement to earlier payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine at the hearing of an application for summary judgment, that I have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

 

15 The claimant also claims £XX XX in charges. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

17 In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial and that the Claimant’s application for summary judgment against me should be dismissed.

 

Date: xx July 2009

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statementare true

Regards

Andy

[loopyloopy]

Should I change point 2.(.I do not deny that a contract once existed between me and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Defendant terminated the contract.)

As natwest are claiming the loan was taken out in 2004, we have no knowledge of this only of previous loans dating 1999-2002

[loopyloopy]

Also is it best to wait for natwests Ws first.... Im not sure If I would be better of with a skeleton argument and proposed directions for the hearing in september.... Is that the correct line of thinking for a 3rd CMC...

[AndyOrch]

Feel free to edit to suit your needs Lisa as said the above was drafted for another case.

 

Andy

[AndyOrch]

Also is it best to wait for natwests Ws first.... Im not sure If I would be better of with a skeleton argument and proposed directions for the hearing in september.... Is that the correct line of thinking for a 3rd CMC...

 

I agree the WS was drafted in opposition to a SJ I only posted it to give you an idea of format and layout.

 

 

Andy

Edited July 24, 2009 by Andyorch

[loopyloopy]

oh thanks.... I will post an amended witness statement when i get a chance to go through it... Also is it too late to ask the judge to order natwest to provide a signed and dated cca??

[AndyOrch]

Not too late you can do this under CPR Specific Disclosure via an Application Notice.Lisa if you get chance Google the CPR if you dont already have it on your system.Read Disclosure and Specific Disclosure it will serve you well in the lead up to your CMC.

 

Regards

 

Andy;)

[car2403]

Also a bit of subject but in the paperwork they sent me I found a letter sent to my husband from natwest,

 

1 March 2002

Dear Mr Loopyloopy

 

Following my last letter with regard to your personal loan I can also confirm the followin information

The consumer credit act gives a 7 day cooling off period for the loan and protector providing the consumer credit at forms werre taken away from the branch before signature

If you signt he forms in branch at the time of application (as happened here) then you cannot take advantage of that 7 day period. This is why when you changed your mind about the borrowing we were obliged to remake your loan completely as it had already been set up.

 

 

I had no idea about any of this and to be honest I dont think my husband has a clue either,,, But does this sound correct...

 

Thanks

 

I'm coming in a bit later here, I realise, but here's my 2p.

 

If the agreement states that it's cancellable, it's cancellable and the cancellation rights should have been provided at the time of, or shortly after, signing.

 

What this suggests is that they created a new loan agreement as you wanted to cancel, but did you ever sign it? Have they disclosed it.

 

Putting the Default/Termination issues aside for a moment, unless they have an enforceable agreement, they can't Default/Terminate under the CCA. (s.60/s.61/s.65) If you didn't sign, not even the Court can enforce against you. (s.127(3))

 

The problem with focussing on the Default/Termination of the agreement is that the Judge can't consider the enforceability issues, which override any of those issues - no enforceable agreement = no default = no termination.

 

Also, have you thought of applying for Summary Judgment against them, as they claim is clearly just poo-poo.

 

A lengthy thread, so apologies if I've repeated issues already covered, but these are the things that jump out at me reading the last few pages or so.

[loopyloopy]

Hi Im going away for a week, only to visit the in laws so on my return im going to look at an application for specific disclosure, However I may need some help with wording etc If anyone is available..

 

I just want to get it over with now and if NW cannot locate the agreement which we know does not exist then hopefully there is no case to answer! I just need the judge to agree..

[paulwlton]

Seems to me that your previous borrowing was refinanced to enable front loaded interest of over 14k to be applied knowing full well you were an easy target.

 

Do you know if the previous loans were rebated with interest pursuant CCA 1974

 

Could you post the agreement they've sent.

Edited July 27, 2009 by paulwlton

[Sparkie1723]

I have had the documents numbered and listed below but they are no longer in my control,

 

1, Loan application

2, Original loan agreement

3, branch file :grin:

You may also find this usefull in your Defence

 

This means they have either lost them or destroyed them with is a complete and utter breach of The Seventh Principle of the Data Protection Act 1998

3.7 Seventh Principle

"Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data".

It is important to note that the Seventh Principle relates to the security of the processing as a whole and the measures to be taken by data controllers to provide security against any breaches of the Act rather than just breaches of security.

sparkie

[loopyloopy]

Right im back from my break away and ready to crack on with this, Since being away we have received a letter from natwest solicitors enquirying if we had thought of settling the account with their offer....

 

Obviously we are unable to do this and want to proceeed ahead, From others points of views do you think I should do first, Complete a witness statement and send to courts, natwest or Complete an application for specific disclosure, Also am i required to change my defence based on their evidence.

[loopyloopy]

need some advice/opinions on settling this, I know previously we have said that there is no way we are able to settle, We have seriously been thinking about it however have barely any surplus income a month.

 

Do you think there is anyway natwest would settle at £2,500 paid in monthly instalments of £25 in full and final settlement, Previously they have offered £5,000 full and final. We have no other income/funds available to settle and are currently on a payplan plan with our other creditors.

 

If so can anyone point me in the right direction of a letter or template to send...

 

The debt is solely in my husbands name, He no longer works so all income is what I bring into the household. Thanks

[andrew1]

need some advice/opinions on settling this, I know previously we have said that there is no way we are able to settle, We have seriously been thinking about it however have barely any surplus income a month.

 

Do you think there is anyway natwest would settle at £2,500 paid in monthly instalments of £25 in full and final settlement, Previously they have offered £5,000 full and final. We have no other income/funds available to settle and are currently on a payplan plan with our other creditors.

 

If so can anyone point me in the right direction of a letter or template to send...

 

The debt is solely in my husbands name, He no longer works so all income is what I bring into the household. Thanks

 

At a guess, Loopy I'd say No - the monthly £25 does nothing different than the Payplan deal where you would pay according to your means. I've been trying to organise a friends debts on full and finals which are going through payplan style deal and to be honest, most creditors have said get lost, carry on with paying. Now this is based upon paying a 5 years worth of Payplan payments as a full and final in one lump payment, not £25 a month and they are still rejecting it - circa 15% of debt value. The only way you'll get full and finals is if you have a lump sum, otherwise they'll carry on as is in my opinion anyway, others may know better, but that's my experience to date for what it's worth.

 

A1

[loopyloopy]

At the moment though we have not been paying natwest anything since they began court action, They were also removed from the DMP as the debt they are claiming for is in dispute.

[AndyOrch]

Hi Lisa

 

It is possable to agree monthly payment plan on the summons amount,I have achieved this on numerious occassions.Just a matter of pitching at the right amount on the F/F/S and that it dosent take an unrealistic period to clear it.Should that be the way you wish to progress your case.

 

Regards

 

Andy

[andrew1]

Hi Lisa

 

It is possable to agree monthly payment plan on the summons amount,I have achieved this on numerious occassions.Just a matter of pitching at the right amount on the F/F/S and that it dosent take an unrealistic period to clear it.Should that be the way you wish to progress your case.

 

Regards

 

Andy

 

So are you saying Andy that you wait for the original summons which is filed at court - say its' for 10k for the sake of argument, then go back and arrange a Full and Final on the overall amount say £6k, then pop the 6k into a Payplan package on that agreed reduced amount and they are accepting that to be paid back over x years? Sounds good if you can.

[AndyOrch]

Yes Andrew providing you hold the aces in the claim and that you are aware that the Claimants do not wish to proceed to trial.Its all about reading and anticipating the Claimants stance ie the AQ the WS, Without Pred correspondence etc.Lets face it anything over 5K is fast track and costs can outway the debt.Given the opportunity and the right approach and if its the Defendents choice rather than proceed then this is a solution as in Loopys case.The offer though must be a realistic one though.

 

I trust that clarifies my approach.

 

Regards

 

Andy

Edited August 4, 2009 by Andyorch
typo

[andrew1]

Very much so, thanks for that. Any tactic to balance off what is owed and what is justifiably negotiable is handy for all comers on CAG. I have been lobbied about the morals of reducing what is owed on numerous occasions, but the moral high ground, in the main, is on the side of the debtors so I personally have absolutely no problems with this. Well done, very handy to know.

[AndyOrch]

No problem Andrew I hope this is usefull.I have been involved in cases were after months of arguing about incorrect balances and unfair charges incoroporated into the amount claimed,can and have been wiped off in seconds when dealing directly with the Claimants Sols.So agrrement is capable when approaching the Claimants sols direct and much can be attained with the use of Without pred letters.I do not wish to convey that i throw the towel in and from my posts you will see i take no prisoners,but in certain cases i am very much aware that letting common sense prevail is the key to attaining a mutualy acceptable agreement and lets face it most Caggers are not expierienced in escalating every summons to trial,and fear the possability of facing a DJ in a Court Room.

Horses for courses i suppose.

 

Regards

 

Andy

Edited August 4, 2009 by Andyorch

[andrew1]

No problem Andrew I hope this is usefull.I have been involved in cases were after months of arguing about incorrect balances and unfair charges incoroporated into the amount claimed,can and have been wiped off in seconds when dealing directly with the Claimants Sols.So agrrement is capable when approaching the Claimants sols direct and much can be attained with the use of Without pred letters.I do not wish to convey that i throw the towel in and from my posts you will see i take no prisoners,but in certain cases i am very much aware that letting common sence prevail is the key to attaining a mutualy acceptable agreement and lets face it most Caggers are not expierienced in escalating every summons to trial,and fear the possability of facing a DJ in a Court Room.

Horses for courses i suppose.

 

Regards

 

Andy

 

The only difficulty I've come across with that is the in-house solicitors tend to be more like the company themselves than perhaps the outside firms, so negotiating becomes a little harder. Trick is to find out if the company and solicitors are connected. DCA's like Cabot have Morgans in-house and RBS/Natwest have Triton. I know what you mean though. Anyway, good luck Loopy.

[loopyloopy]

How realistic would an offer of 2,500 be then paying at £25 a month. Their last offer was to settle at £5,000?

 

Also how should I aproach them with the offer.

[AndyOrch]

Hi Lisa

I personally would try £3.5(less any unfair charges/interest applied since litigation) and pitch at £35pm, on the agreement that all interest be frozen and any adverse information on your credit file be removed or marked satisfied.

Simply signify this in a letter headed "Without Prejudice save to costs"

You may well recieve a very favourable response.

 

Regards

 

Andy

[loopyloopy]

Hi just a bit of an update, I hadnt yet got around to drawing up a letter of offer etc, But natwest solicitor phoned yesterday to ask if we would accept the 5,000. I explained that my husband was no longer employed and having seeked legal advice we have been adviced to continue with or case due to my husband not having taken out the specific loan and there not being any ccj. The solicitor sounded quite nice and said that she understood but there client cannot find the documents.

I explained that win or lose or accept earlier settlement we do not have the money either way to pay so would have to pay by instalement.

She has asked us to think about it and let her know if we wish to continue with the case or settle as NW want to save on costs and to phone back Monday... From this telephone conversation it seems to me they are pretty desperate to settle.