Loopyloopy v Natwest

[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

[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

[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.

[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

[shakespeare62]

They are claiming that on the 10th Feb 2004 a loan account was opened and 34,5366 was withdrawn however when looking at the bank statement for that day only 20,150 was paid into the account and then on the 10th Febuary 2 trransfers came out of the bank account reading 'REPAY LOAN' for 4,691.09 and 10,154.99.

 

Loopy from a quick look at the figures :-

 

20,150 + 4,691.09 + 10,154.99 add up to 34,996.08.

 

RatsNest claim that 34,536.60 was drawn down on a loan on 10th Feb.

 

It looks like 2 amounts (4,691.09 and 10,154.99) were taken out at source from the "new loan" to REPAY LOAN (i.e. your old loan). This was done internally by RatsNest i.e. It was restricted credit. The remaining 20,150 being paid into your current account as a Cash loan to spend as you wish (unrestricted credit).

 

This indicates a multipart agreement with each part under 25K.

 

I believe this gives you a strong argument that the loan was in fact Regulated by the Consumer Credit Act .

 

There is also a £500 approx discrepancy between the amount of loan they said you borrowed (£34,536.60) and the 3 statement figures which add up to £34,996.08. I believe the £500 may represent their brokers fee.

 

For the benefit of any RatsNest snoopers 'looking in' - never discount the possiblility that your original copy of the agreement could turn up in your attic. So the consequences of their 'reconstructing' an agreement are too dire to be worth consideration.

 

Basically if the loan was indeed regulated as I'm sure you will maintain it was, and RatsNest cannot produce the original containing both your signature all the prescribed terms it would be unenforceable.

[shakespeare62]

Also, if the brokers fee was included in the amount of credit rather than as a charge to be paid back over the duration of the loan (or in cash by you on the spot) then the agreement is unenforceable. This is because a brokers fee is a charge for credit - not credit itself. The Wilson V FCT case in the House of Lords was over a brokers fee being added to the amount of credit.

 

To quote from the above case :-

 

Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003)

 

LORD NICHOLLS OF BIRKENHEAD

 

6 “... The court held that the £250 added to the loan to enable Mrs Wilson to pay the document fee was not 'credit' for the purposes of the Consumer Credit Act. So one of the prescribed terms was not correctly stated. In consequence the agreement was unenforceable..

 

LORD SCOTT OF FOSCOTE

 

147. “The issues have arisen out of a simple money lending transaction. Under an agreement made in January 1999 FCT lent Mrs Wilson £5000 for six months on the security of her motor car. The agreement was a 'regulated agreement' within the meaning of section 8 of the Consumer Credit Act 1974. Section 61 of the Act requires a document containing all the "prescribed terms" of a regulated agreement to be signed by the debtor. One of the prescribed terms is "the amount of the credit". FCT charged Mrs Wilson, inter alia, a £250 fee but, by agreement between them, the £250 was not paid by Mrs Wilson but instead was added to the £5000 to be repaid by her. In the document presented by FCT to Mrs Wilson for signing, and signed by her accordingly, "the amount of the credit" was stated to be £5250. But the £250 was "an item entering into the total charge for credit" (see section 9(4) of the Act) and, accordingly, was not part of "the amount of the credit" (see Schedule 6 to the 1983 Regulations: SI 1983 No 1553). In short, the document signed by Mrs Wilson did not, in the respect I have mentioned, contain the prescribed terms.

 

Keep the above in mind. Any letters fromt RatsNest confirming they were adding the brokers fee to the loan amount would be useful - as would be the agreement copy itself. On the agreement you would be able to tell what happened with the fee - Example :

 

Amount of Loan £24,663.00

Repayment 59 months x £547.10 Followed by 1 month x £547.29

Total Charge £8,646.19 comprising :-

(i) interest £8,163.19

(ii) Administration Fee of £483.00

 

Now ! if you add up the repayment total as listed (59 x 547.10) + 547.29

it equals £32,826.19

 

This amount is the same as the Amount of Loan (£24,663.00) + interest (£8,163.19).

 

i.e. the Administration Fee listed which is a charge for credit has already been included in the Amount of Loan so it is not added on again. i.e. it is NOT £24,663.00 + £8163.19 + £483. The £483 is included in the £24,663.00

 

This makes the agreement unenforceable.

 

In the above example the RatsNest Banker confirmed in writing (after pressuring the debtor to convert an overdraft to a loan) that she had added the £483 Admin fee to the principal loan amount "otherwise the loan amount would have been set at £24180 and you would have been expected to find the £483 yourself" - she was clearly not intending to lose her commission over something silly like the Consumer Credit Act 1974. This enabled the Banker to pay the loan into the Debtors current account, then deduct her commission from the amount paid in.

 

Basically the above is a worked example of something for you to look out for.

Edited March 22, 2009 by shakespeare62
corrected 'typo

[shakespeare62]

you're in good hands (and very lucky I might add) if andyorch is going to give you advice.

[shakespeare62]

Also in the post below, I've quoted snippets from a Court of Appeal case where LORD JUSTICE LLOYD ruled that a multi-part agreement containing a mis-stated precribed term was unenforceable :-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within-46.html#post2053534

Edited March 22, 2009 by shakespeare62

[shakespeare62]

loopy - I'm looking forward to seeing what Andy has to say on your case so far. It seems to me that if this "over 25K" issue can be thrown into doubt it would seriously undermine the Claimants position....

[shakespeare62]

Hi Lisa

 

I am a bit amazed that you state there are no penalty charges on the statements are these true statements originiating to when the first part of the loan was advanced? ie Oct 2002.

Are you now in possession of the loan account statements?

 

Regards

 

Andy

 

Re Andy's query here is a useful guide on identifying the different RatsNest charges (refer to posts #42 & #43 on the link below) :-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/184290-flyboy80-rbs-shoosmiths-charging-3.html#post1989053

Edited March 23, 2009 by shakespeare62

[shakespeare62]

Forget the 25k limit it was abolished in 2006 if memory serves me correct.

 

you're right of course, It was abolished by the Consumer Credit Act 2006.

 

The Consumer Credit Act 2006 (CCA2006) introduced a number of new regulations which are outlined below:Credit Agreements over £25,000

Credit Agreements over £25,000

 

In April 2008, the financial limit of £25,000 was removed for new agreements so now all consumer credit agreements (unless specifically exempt), regardless of value, are regulated under the Act. This significantly increases protection for consumers.

However, business lending up to £25,000 will continue to be regulated to protect the most vulnerable business borrowers who do not have access to main stream lenders. Agreements over £25,000 which are wholly or predominantly for business purposes are exempt from CCA regulation to ensure that larger organisations are not impacted disproportionately by the regulation. For more information, contact the OFT.

 

I've copied the above snippets from Berr (half way down the page on the following link :-

 

Consumer Credit Act 2006 - BERR

[shakespeare62]

Playing Devils Advocate tho' just wondering if the Judge would say that the changes only apply to agreements after that section came into force i.e. after April 2008 ...

[shakespeare62]

Retrospectively Steven

Andy

 

Fantastic ...is there any source we can quote about the retrospective issue in case you're not around ? Is it in a schedule or an order somewhere ? (No rush to reply cos the main issue is to help Loopy...it would be nice to know at some point..)

[shakespeare62]

Thanks Andy (re your post #62 above)- I see the amendments to section 82 have been updated in the online version (UK Statute Law Database) of the CCA 1974)

[shakespeare62]

Lisa, do you have any spreadsheet software e.g. Excel or Open Office ? (Open Office is free and available for both Windows and Linux platforms)

 

I'm thinking Andy may want some layout like this which is easily sorted :-

 

Statmement Date      Credit               Debit         Reference        Comments

10 Feb 2004          20,150.00                         NWB loan funds
10 Feb 2004                               4,691.09      repay loan
10 Feb 2004                               10,154.99     repay loan

etc ......... 
                     __________       _________
       Total Credit 20,150.00          14,846.08     Total Debit
                     ___________      _________

Edited March 24, 2009 by shakespeare62