Nationwide/Shoosmiths v me

[stleonards]

Hi,

 

I have been dealing with Shoosmiths regarding a Nationwide credit card, I did a CPR request on the 2nd July and finally received some of the information requested today, could someone tell me if these documents provided as an agreement contain all of the prescribed terms?

 

http://i645.photobucket.com/albums/uu180/stleonards_2009/nationwide1.jpg

http://i645.photobucket.com/albums/uu180/stleonards_2009/nationwide2.jpg

http://i645.photobucket.com/albums/uu180/stleonards_2009/nationwide3.jpg

 

Thank you.

[supasnooper]

I would say it is unenforceable as it does not contain the prescribed terms.

 

Have a look at these links which may help you on the enforceabilty of the paperwork (courtesy of 42man & steven4064) -

 

 

Is My Agreement Enforceable - Useful

Consumer Credit Agreements

[stleonards]

I would say it is unenforceable as it does not contain the prescribed terms.

 

Have a look at these links which may help you on the enforceabilty of the paperwork (courtesy of 42man & steven4064) -

 

 

Is My Agreement Enforceable - Useful

 

 

Consumer Credit Agreements

 

Thank you. I did think so but wanted to make sure.

[stleonards]

I also did a SAR to Nationwide and I received this letter back today

 

http://i645.photobucket.com/albums/uu180/stleonards_2009/nationwideSAR.jpg

 

The part that concerns me is "In your letter you have requested information relating to a credit card account. We will limit our request accordingly."

 

I did the SAR for all of the information they hold on me, can they just send me information about that card? Is there a response I can send to get the information from them?

 

Thank you.

[Docman]

Yes. Quote the first sentence in their second paragraph back at them and uderline the 'any'.

[stleonards]

Yes. Quote the first sentence in their second paragraph back at them and uderline the 'any'.

 

:) I really should read these things properly.

 

Thank you.

[supasnooper]

Depending on the letter you sent, Nationwide are within their rights to reply as such.

Not having a payee on the postal order is petty but they can return it for it to be completed.

 

If I were you, I would rewrite the Subject Access Request to ask for ALL data relating to your name held by Nationwide.......... and then specify exactly which data you expect to be sent.

 

If Nationwide don't comply then you could report them to ICO and take them to court.

Edited August 24, 2009 by supasnooper
spelling

[stleonards]

This is the letter I sent:

 

Data Protection Act 1998

 

Subject Access Request

 

Dear Sir/Madam

Account Number: xxxxxxxxxxxxxxxxxxxxxxxx

 

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

1. The original signed, executed credit agreement/s and any terms and conditions that applied to the account/s at the time of default and at the time the account/s was/were opened.

 

2. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account.

 

3. True copies of any notice of assignment and default notices or enforcement notice that you sent me, with a copy of any proof of postage that you hold.

 

4. Documents relating to any insurance added to the account/s, including the insurance contract and terms and conditions, date/s they were/ it was added and deleted.

 

5. Details of any collection charges added to the account/s; specifically, the date they were/it was levied, the amount of the charge, a detailed financial breakdown of how the charge was/charges were calculated, and what the charge covers/charges cover.

 

6. Specific details of the fees/charges levied by any other agency in respect of this account/these accounts and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

7. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

 

8. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

9. Copies of statements for the entire duration of the credit agreement/s.

 

10. Termination notices

 

PLEASE NOTE that unless otherwise stated by yourselves and if the above documents are NOT provided, it will be CONFIRMED that you are unable to reproduce/provide in any way shape or form any copies of the above requested documents. You are reminded that you have a duty to inform me if you do not have the above documents. This is confirmed in High Court Law - Ezsias v Welsh Ministers - [2007] All ER (D) 65 (Dec)

 

You are reminded that you are obliged to supply all the above documents in line with the Information Commissioners Technical Guidance update (Dated August 2007)

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Yours faithfully,

 

I thought this would be enough to get all the information?

[Docman]

Natonwide are being very pedantic as seen by the way they return your PO becasue it isn't in their name. A bank (Nationwide??) should be able to deal with this without returning the PO and asking for another, but not our friends in Swindon/ Southend.

 

Nationwide know full well they should not restrict a search of data to just the credit card account identified in the letter. IMO, they are just taking the Michael. I suggest you write back and inform them that the inclusion of a credit card number was merely to assist them in locating the correct person, in line with guidance from the Information Commissioner. Tell them you expect a full disclosure of ALL data.

[stleonards]

Natonwide are being very pedantic as seen by the way they return your PO becasue it isn't in their name. A bank (Nationwide??) should be able to deal with this without returning the PO and asking for another, but not our friends in Swindon/ Southend.

 

Nationwide know full well they should not restrict a search of data to just the credit card account identified in the letter. IMO, they are just taking the Michael. I suggest you write back and inform them that the inclusion of a credit card number was merely to assist them in locating the correct person, in line with guidance from the Information Commissioner. Tell them you expect a full disclosure of ALL data.

 

Thanks for that information.

[stleonards]

I have just realised that I have an N149 AQ (Small claims track) for this case that has to be filed in two days time and I have not previously filled one of these in.

 

The case has been transferred to my local County Court.

 

The CPR produced this agreement that I linked in the first post of this thread

 

http://i645.photobucket.com/albums/uu180/stleonards_2009/nationwide1.jpg

http://i645.photobucket.com/albums/uu180/stleonards_2009/nationwide2.jpg

http://i645.photobucket.com/albums/uu180/stleonards_2009/nationwide3.jpg

 

and these templates in answer to the request for a copy of the DN (which I never received originally) they contain no information about me whatsoever.

 

http://i645.photobucket.com/albums/uu180/stleonards_2009/nationwidenotice1.jpg

http://i645.photobucket.com/albums/uu180/stleonards_2009/nationwidenotice2.jpg

http://i645.photobucket.com/albums/uu180/stleonards_2009/nationwidenotice3.jpg

 

Am I right in thinking that I can use the Draft Order for Directions modified with my information, from here

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

 

to respond?

 

Thank you.

[stleonards]

Bump

[stleonards]

Anybody? I have to have this in the court for tomorrow.

[42man]

Just adding some more information - .....that default notice is duff too...

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/159341-court-papers-received-what-6.html - this will hopefully give some pointers on the AQ and the draft orders...

 

This will give you an idea on the strike out on an incorrect default notice too -

 

Section 87(1) of the CCA 1974 says:

 

87.--(1) Service of a notice on the debtor or hirer in accordance with section 88 (a default notice) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,--

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum....

 

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is.

 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

 

CPR3.4(2)(a) says that the court may strike out a statement of case if it appears to the court –

 

(a) that the statement of case discloses no reasonable grounds for bringing ... the claim

 

THe user should submit a defence based on the same argument but then ask for a strike out with the AQ. That way, there is no need to make an appliaction and shell out £40.

 

The Claimant respectfully requests that an order may be made as follows:

 

1. That the Claimant's statement of case is struck out pursuant to rule 3.4(2)(a) of the Civil Procedure Rules

as the Calimant's statement of case discloses no reasonable grounds for bringing the claim.

 

The claim is for the early repayment (ie before the full term of the allleged agreement between the Claimant and the Defendant) of a sum of money consequent on a breach of the alleged agreement by the Defendant. The Claimant is only entitled to file such a claim after first having served a defeult noitice under section 87(1) of the Consumer Credit Act 1974 and in accordance with s88 of the Act.

 

Inter alia, the regulations made by the Sectratary of State related to s88 concerning default notices require that a period of 14 clear days be given to the Defendant to remedy the default before enforcement action (including filing a claim) may be started.

The default notice supplied by the Claimant in response to the order of the Court dated date is dated Friday 3 August 2008 and says "To remedy this breach, payment due on your account of £xxx must be received within fourteen calendar days from the date of this default notice", ie by Wendesday 17 August. Under CPR Part 6.2, a letter is deemed served on the second day after it was posted, provided that day is a business day. That means that a default notice posted on Friday 3 August would be deemed served on Tuesday 7 August and 14 clear days from then is Tuesday 21 August. Therefore the default notice does not comply with the regulations in respect of giving the Defendant the statutory length of time to remedy the default.

The failure of the default notice to comply with the regulations made by the Secretary of State invalidates the default notice (Woodchester Lease management Services Ltd v Swain and Co - [2001] GCCR 2255), is an unlawful rescission of contract and prevents the Court from enforcing any alleged debt (Kpohraror v Woolwich Building Society [1996] 4 All ER 119).

The invalidity of the default notice means that the Claimant has no right of action in this case. On this basis, I respectfully ask the Court to strike out the Claimant's statement of case.

 

-----------------------------------------

 

And some more info...

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

[stleonards]

Thank you.

[stleonards]

Apart from the section G attachment and the Draft Order for Directions is there anything else I should take to the court with the AQ?

 

Thank you.

[stleonards]

Bump.

[stleonards]

AQ now taken to the court and stamped.

 

The counter clerk was extremely helpful which surprised me (I don't know why I thought it would be otherwise) She confirmed that the claimants had not filed an AQ as well.

 

In with the CPR 18 response I had from Shoosmiths I also received these letters

http://i645.photobucket.com/albums/uu180/stleonards_2009/shoosmithscover.jpg

shoosmithscover2 picture by stleonards_2009 - Photobucket

http://i645.photobucket.com/albums/uu180/stleonards_2009/shoosmithscoverletter1.jpg

 

Which states that they have applied for a six week stay, but the court has no knowledge of this and they have not received a copy of this document, in fact they took a photocopy of the one I showed them. They did say that the claimants could have put it in with their AQ, but there is no AQ, and the first letter states that they had already filed this document with the court?

 

Administrative error maybe...

Edited September 4, 2009 by stleonards
missed link.

[AndyOrch]

Keep checking with the Court to see if they have filed their AQ if not by the 28th apply to strike out the Claimants case.That letter seems to be a delaying tactic in submitting and paying the fee for the AQ.

 

Regards

 

Andy

[stleonards]

Will do. I checked with the court by telephone minutes before close of play (actual close not just counter service) and nothing had been received.

 

Thanks.

[citizenB]

So, they have said they have sent a letter to the court saying they are in negotiations with you, yet the court hasnt received either the letter .. or their AQ ?

 

Have they attempted to negotiate with you ?

[stleonards]

So, they have said they have sent a letter to the court saying they are in negotiations with you, yet the court hasnt received either the letter .. or their AQ ?

 

Correct.

 

Have they attempted to negotiate with you ?

If negotiating includes

 

"If you do not withdraw your Defence within 21 days of receiving this letter then we have our client's instructions to make a summary judgement application to the Court"

 

then yes, otherwise no, not at all.

 

Thank you.

[stleonards]

Hi,

 

I have just returned from the court and they confirm that the claimants definitely have not filed an AQ, there is nothing queuing at the court, everything has been processed up to date.

 

Should I now file for the case to be struck out as mentioned before?

 

Thank you.

[citizenB]

Just bumping this for you.

[stleonards]

Hi,

 

Shoosmiths sent me a copy of their AQ a few days ago and being the trusting soul that I am I went and got a copy from the court as well, they filed five days late. Both of these AQ's are identical.

 

http://i645.photobucket.com/albums/uu180/stleonards_2009/shoosmithsAQl2.jpg

http://i645.photobucket.com/albums/uu180/stleonards_2009/shoosmithsAQ3.jpg

http://i645.photobucket.com/albums/uu180/stleonards_2009/shoosmithsAQ4.jpg

http://i645.photobucket.com/albums/uu180/stleonards_2009/shoosmithsAQ5.jpg

 

The only information I have removed from this document is the court name and case number.

 

There are no attachments and although the boxes are ticked none of the sections contain any information.