Nat West business OD & Shoosmiths - HELP

[debbbbsy]

If NW refuse to supply all the requested details regarding the limited company account - how can I re-word the Subject access request to get the info ? Or is there an alternative route to go ?

 

You will use CPR, there are various Court Procedure Rules you can use, CPR 31.14 is for Pre-Action Disclosure of documents they refer to in the claim,( before they get judgment). As they have already litigated, you have to use another CPR, , I think you can use CPR 31.16.

Why not post a thread on the legal forum, ask the question. You'll get more help from people in the Know.

 

 

Debs xxx

[HP Mum]

I have a thread going already HP Mum v NW.

But I have a situation and do not know how to rectify it. I think I need some legal help...

 

1) I recently sent in a SAR to get details on 2 accounts - my old limited company current account (which NW closed) and a new "loan" account that NW had set up. I want to get to the bottom of what NW has been doing with my accounts and debt..

 

I have just received a letter from NW to say that they will not be sending me the bank details on the Ltd company, but within 40 days they will send me all the info on the new account (which they set up without my authorisation).

I want ALL the details they hold on both accounts.

 

The Limited Company was just me. There were no other employees, i was the director and sole signatory on the bank account. So why won't they send me the details on this account ? And how can I force them to send me everything ?

There is of course, the possibility that they have lost everything. Or that they do not want me to see what they have been up to !!

I need ALL the docs to see the process they followed...

 

So - is there a special letter to write that can force them to send the bank details relating to my old Ltd company ? Like a cpr 31.xx....??

Or are they just trying to fob me off ?? That they are legally obliged to send info, personal and Ltd Co...under the SAR ???

 

 

2) There is another issue too:

NW got a ccj against me 2 years ago for not paying off the business o/d.

I had personally guaranteed the o/d up to a certain level. But the Limited Company was closed down apx 6 years ago.

NW got the ccj against me on the new "loan" account. But I never authorised them to set this up, have never seen any documentation about it, and it appears to be having huge interest added to it quarterly, on top of and aside from the ccj monthly payment.

I am beginning to think they should never have been able to get a ccj in the first place, as it was on a (loan) account that I had never agreed to...

 

So - can I get the ccj over-turned on the basis that it is against a bank account I never authorised. i.e.: NW set it up unlawfully

 

 

3) And one last question - am I liable for my old Ltd Co debts ?

Or does it depend on them finding the o/d personal guarantee documentation ?

 

 

 

I am really worried that my old business current account which had a cap on it (with my personal guarantee) is now spiralling out of control in its new format as a "loan" account.

They have added rates of interest that have nothing to do with my old business account. It is turning into an enormous debt behind the scenes of my ccj which was for just over £5k...

 

I would be most grateful for any helpful comments.

Many thanks,

xx

[Sparkie1723]

Paul W has asked me to give my view on the issue of you obtaining the data that the Nat West hold about you and they are blocking your SDAR, with woffle….but the problem is it is arguable woffle under the Data Protection Act. Although I don’t agree with it.

 

They are using the Ltd company aspect and saying that is not YOUR personal information and you are not entitled to it……..as you are the sole Director and you use the company account for personal purposes that element is personal.

 

What they are using to block the provision of information is that they are saying they cannot separate your personal data from the Ltd company aspect……it is a dodge …but a dodge that would stand up in Court for them if you tried to use the DPA 1998 to obtain it.

 

The reason for this is two words in the DPA…”Disproportional Effort” the Act does not define this, so you would have to overcome this under the Act if you went down the DPA route in court

 

However in my opinion you have two other options

1…Making an application for specific disclosure under CPR 31.16. ..but then again this is a very tough CPR, First you have to be absolutely specific and spot on with what you are asking the court to order and convince tha Court of exactly you want the court to order them to supply. Second you have to convince the court that you WILL be taking court proceedings out against them, because if you don’t the court will not make the order and you will be lumbered with their costs. So..

 

2…The other way is to use Section 2 of the New Fraud Act 2006 concealment of documents that you are legally entitled to have and have sight of. This they cannot get round and if they tried they would find it very hard indeed.

 

That’s my humble opinion and it is only my personal view …I have no legal qualifications as every one knows I’m am an auto electrician…but everyone is entitled to an opinion, hope this helps

 

sparkie

 

As I said they are blocking supplying you with the info by saying it they can't separate the personal data from the company data ( Company law linked to the DPA Act ....which is rubbish as you are the company...This is what I believe they would attempt to rely on......BUT there are bits in here that would have great bearing on making them supply the data....and I have highlighted them.

 

 

 

Where a data controller relies upon the disproportionate effort ground in (a)

above, the data controller must keep a record of the reasons why he believes the disapplication of the fair processing requirements is necessary.

3.1.7.6 What is disproportionate effort?

The term “disproportionate effort” is not defined in the Act. In assessing

what does or does not amount to disproportionate effort the starting point

must be that data controllers are not generally exempt from providing the fair processing information because they have not obtained data directly from the data subject.

What does or does not amount to disproportionate effort is a question of fact to be determined in each and every case.

In deciding this the Commissioner will take into account a number of factors, including the nature of the data, the length of time and the cost involved to the data controller in providing the information. The fact that the data controller has had to expend a substantial amount of effort and/or cost in providing the information does not necessarily mean that the Commissioner will reach the decision that the data controller can legitimately rely upon the disproportionate effort ground. In certain circumstances, the Commissioner would consider that a quite considerable effort could reasonably be expected.

 

The above factors will always be balanced against the prejudicial or effectively prejudicial effect to the data subject and in this respect a relevant consideration would be the extent to which the data subject already knows about the processing of his personal data by the data controller.

 

Argue with this also and I think they will be forced to supply the info

 

3 Fraud by failing to disclose information

 

A person is in breach of this section if he—

(a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and

(b) intends, by failing to disclose the information—

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.

 

sparkie

[HP Mum]

So, is it best to wait the 40 days to see what they provide ?

Or to reply to their letter which already states they wont be giving me the Ltd co info, and quote the above points ?

Or do I just complain immediately to the commissioner ? (Not sure how one goes about that ??) on the basis that I have requested info under SAR and they have advised that are not "willing" to produce Ltd co docs, but I need them to assess my true indebtedness to NW...

 

I think I have opened a can of worms here ...

 

HI again,

I am a busy bee doing some research this evening...

I just found the Office of Data Protection Supervisor website

http://www.gov.im/lib/docs/odps/complywithsarjune2010.doc

and it lists all the details that the recipient of a SAR has to abide by.

I found this :

 

• Is it PERSONAL DATA?

This is information which identifies a LIVING INDIVIDUAL either on its own or in combination with other information in, or likely to come into, your possession.

 

 

 

The Act does not apply to deceased persons, or to companies. If however a ‘company’ consists of a sole trader or is a partnership, then they will be deemed to be an ‘individual’ for the purposes of the Act and the right of subject access will apply.

Personal data includes opinions regarding the person and intentions of an employer regarding an employee.

 

For more comprehensive guidance on what is ‘personal data’ see our advice note “Is it personal data?”

 

If it is not personal data, the requirements and rights of the Act do not apply.

 

 

On this basis, I guess they are stuffed

I think I now should draft a letter to the person who acknowledged my request and who said NW would NOT be sending me info on the limited company.

 

In addition, at the end there is an Appendix, Action Summary for the recipient of a SAR as below:

Timing:

Day 1-Day 40

Action:

Collate Information

Description:

Identify any information which is subject to a statutory exemption from disclosure.

Decide whether there are any third party details which should not be disclosed.

Decide whether there are any other further exemptions to disclosure that can REASONABLY be applied.

 

What to Document:

If any exemptions are applied, record the reasoning behind applying the exemption to each piece of information - this should not be just a general statement.

Keep a copy in a separate file, ideally in a SAR file. This will be the first point of reference in the case of a complaint being made to the Office of the Data Protection Supervisor and an assessment being undertaken.

The copy may also be used to compare any subsequent SAR requests, or may be useful if the information you send out gets misplaced rather than having to undertake the process again.....

 

 

So - as I thought:

they have to give me grounds for NOT providing the Limited Co details.

And as a "sole trader" - (within the limited company) is deemed to be an individual, the right of subject access applies.

Yippee.

 

Well this is a bit of a twist....

 

What do others think ?

 

In addition to my above comments, I went through all my docs today.

I can see some big discrepancies.

Oh dear, I so wish I had found this site before I went to court 2 years ago...

[paulwlton]

I think they are stuffed. I'd send a letter advising of this and remind them that the clock is ticking.

 

Regards

[HP Mum]

Ok - letter drafted covering 3 legal points that they should adhere to and posted. Should be interesting to see how they respond...

 

Now, for an update. I have been scouring thru my files trying to see what they have done over the years and what I agreed to.

- I have found my original o/d letter and agreement to personally guarantee up to a certain amount. This was signed more than 10years ago.

- I can not find paperwork relating to an extension, a few years later, of the o/d and slightly raised personal guarantee. But I do seem to remember increasing the o/d guarantee.

- I have found a NW letter saying they are formally demanding repayment of the balance outstanding. It is just a typed letter, does not mention any kind of act or default notice on the letter. Should they mention an Act or Default Notice ?

Interesting though, it refers to my security in 2 parts: 1) the £ value of my original personal guarantee and 2) the £ value of the extended guarantee. They have added the 2 guarantees together, rather than the 2nd one superceding the 1st one.

Can they do this ?

 

For example if I offer a guarantee for say £10 ; then 3 years later increase the guarantee to £15 - can NW - being crafty - treat the guarantee as £25 (the sum of the 2 guarantees I signed) ???

Or should NW keep them separate ???

I would expect that the 2nd guarantee (of whch I have no paperwork) would cancel out the 1st guarantee.

Any thoughts on this ?

 

I say it is interesting, because by NW adding 2 separate guarantees together, rather than it being just one guarantee, the sum of the 2 guarantees = my total indebtedness. Whereas if - as I understand it - the guarantee is just one guarantee, then my personal guarantee does not cover the total indebtedness.

I agreed x amount and I (allegedly) agreed y amount.

I did not agree x + y amount

 

Does anyone have any input here ?

Edited July 6, 2010 by HP Mum

[tedney]

If however a ‘company’ consists of a sole trader or is a partnership, then they will be deemed to be an ‘individual’ for the purposes of the Act and the right of subject access will apply.

Hello HP

Sorry to be a downer, but you may want to double check somewhere, or with someone, about the "Limited" aspect.

"Companies" or businesses can be sole trader, partnership, or limited etc. If the company is "Limited" were you the only shareholder? If so you may be OK under the act, if not, they "may" be correct and not have to supply the information. Just my opinion.

I hope you are correct.

[HP Mum]

Hi Tedney,

Yes I was the only shareholder which is why the sentence you have highlighted would infact ensure that the right of SAR will apply.

 

By only shareholder, I mean 99%. You always need someone else to have at least 1%, i.e.: the secretary. But this does not mean they partake in anything other than taking minutes of the annual meeting, or at least signing their name on the annual accounts.

[tedney]

By only shareholder, I mean 99%. You always need someone else to have at least 1%, i.e.: the secretary.

I hope they won't use this "technicallity" though.

[Still_surviving]

Forgive me for butting in, but the information being given re co.secretarys and shareholders is outdated and incorrect

 

Under the new Companies Act 2006, with effect from 06.04.08, companies need not have a company secretary, and can exist with a minimum of 1 share in existence - ie 100% owned by one person.

 

There is a major distinction in law between limited companies, and other types of setup such as sole trader and partnership. Do not lump them all together. A limited company is a separate entity in law, whereas the others are just you trading as a person either solo or in combination with others.

 

Again - sorry to butt in....hope it helps. Just an accountant - not a CCA guru

[tedney]

thanks still! that was the point I was trying to make, you have clarified it well.

t

[HP Mum]

HI again

Firstly I closed my company years before that change came in...hence my outdated info

 

When you read what the SAR guidelines say, then I guess it is almost ambiguous. The guidelines say "company" - they do not specify Ltd or otherwise, any more than to say if the company consists of a partnership or sole trader then the right to apply SAR exists. Can't a sole trader also be one person trading within the boundaries of a limited company....??

 

Well that is how I translate it.

[Still_surviving]

I dont have the guidelines you do in front of me HPMum, but certainly in my day to day work, you would never refer to a one man band as a company unless he was limited.

 

In tax and accountancy fields, the term 'sole trader' is used specifically to identify non limited, single person businesses. The minute you bring the word 'company' into a discussion its usually got Ltd or PLC attached to it.

 

A company cannot 'consist' of a partnership or sole trader as youve stated above. It does sound like the guidelines you have are very badly worded with little reference to actual common practice.

[HP Mum]

Well I have a bit of an update.

NW have replied with some info. But they have refused to send details referring to the Ltd Company

 

The issue I have, and I do not know how to deal with it, is that the info they have sent refers to an account number that is not mine. Well it appears to be mine as far as NW are concerned; but it is an account # that I never signed up for.

i.e.: They have said that they have sent all personal details "recorded under reference" xxxx and xxxx. But the crucial point here is that I have no knowledge of those references.

 

They have sent me 2 personal guarantees pertaining to the Ltd company and the Ltd company bank account #. But these personal guarantees do not refer to the account details NW have for me.

They have suggested that I am more specific with what information I require and to direct my request to the dept that handles the day to day running of my business account !!! Ironic seeing as the Company ceased to exist 6+ years ago and NW closed the account down !!!!!

 

I am not sure of the way forward now. Not sure if I push for biz details on the basis was a sole trader, or what "specific" questions I should ask ??

 

Does anyone have any ideas...

[tedney]

Hello HP

I would ask for the specific details on the account refernces that you have. They can then confirm if they have not got those references. If so, then no accounts equals no debt? If they have different refernces to you, and they have not advised you of these "chamges" or accouns, then how do they expect you to acknoweldge the debt? Just my thoughts. t

[debbbbsy]

Hi, I would recommend writing back to the Data Controller.

On the one hand they are saying that you have personally guaranteed monies owing on these accounts, & yet they have successfully litigated against you for a business debt.

As for the "New" accounts. Demand all documents about these accounts. When were they set up. What type of accounts are they. If they are adding interest, at what rate.

Do a CCA request directly to the bank for these "New" accounts. They will probably refuse to comply, as the jugdment is now your agreement, but as they are trying to alter the terms of the judgment without a court order, go for it.

Also do an official letter of complaint. Get the ball rolling. Demand that the bank explain why these accounts exist, when you have no recollection of setting them up. Say in your letter, that if they are unable to provide an adequite response to all the issues raised. Then you will presume that they have been un;lawfully opened by a third party, and that Fraud has occurred. You will have no option but to reprt this to the authorities.

Don't hold back.

The banks, have relied upon peoples ignorance for so many years. I think you are beginning to realise, that they will keep feeding you bull**** in the hope that you will eventually give up, & let them do what they want unchallenged.

Your not going to do that. Write the letters. Demand answers.

 

Debs x

[debbbbsy]

oh.

 

Have you SAR'ed the solicitor. You never know what this may throw up.

 

XX

[HP Mum]

I have not pursued this for months. Too depressed, I guess, with the thought of what NW are doing behind my back

But I just received a letter from Shoosmiths - because I have not followed up on any of my correspondence - to say that they want to attribute the £10 I sent for the SAR to my debt.

I guess this means I need to get off my backside again and start dealing with these toerags properly

 

Since I was last here in August, has anyone had any updates on this scandal ?

And any hints on what I should do next ?

[tedney]

Hello HP

Did you include on yur SAR a phrase saying that the £10 can only be used for an SAR? If so, they cannot set it against debt I think. Suggest you go with debbbbsy's suggestions in post 54. I have not read through this thread again, so wll have to refresh my memory with situation.

t

[silverfox1961]

I have not pursued this for months. Too depressed, I guess, with the thought of what NW are doing behind my back

But I just received a letter from Shoosmiths - because I have not followed up on any of my correspondence - to say that they want to attribute the £10 I sent for the SAR to my debt.

I guess this means I need to get off my backside again and start dealing with these toerags properly

 

Since I was last here in August, has anyone had any updates on this scandal ?

And any hints on what I should do next ?

 

I would get back to them straight away and let them know what they can do with that statement. If they still do it, complain-long and hard

[HP Mum]

yes - the £10 was only supposed to be used for SAR.

I am going to dig out my file and compose a letter to both NW and Shoosmiths.

As Debs says - I need answers.

Whilst it is easy to forget because they are not badgering me on a daily/weekly basis and life with kids etc gets busy. Now I realise that this is in their favour: my ignorance and apathy to fight is allowing them to increase a small debt into a huge debt (without my acquiesence) and potentially giving them the means to finally fight for a charging order, despite this new account being illegal...

I need - clearly - to roll my sleeves and fight !

[debbbbsy]

Hi,

sorry to here you have been down. You need to tackle this head on, perhaps you are upset & frightened by the response you will get from the bank & shooo's. But I will be brutally honest, a fact that I have experienced, if you sit back & do nothing (which is what I did)I accepted what the bank told me, in years to come, the problem will still exist, and any defence you put in, will be harder because of the time lapse. However, if you keep writing to the bank, demanding answers, if/when this goes back to court, you will be able to show the courts evidence that the OC & its solicitor have refused to comply with your lawful requests.They have witheld documents which relate directly to the claim against you. This is "Unfair". Courts dictate that there should be a "Cards on table" approach in all matters.

 

Now, here is something I have just come across.

Southern & District Finance Plc v Turner [2003 - British and Irish ..

 

In our judgment, the interests of the administration of justice clearly demand that the issue raised by paragraphs 3-5 of the draft defence be tried as a discrete issue at an early date. It would not be in anybody's interests to leave the question whether this credit agreement is enforceable at all to hang about in the air until such time as the claimants elect to enforce their possession order. Mrs Turner is at present only paying interest on the loan. If she stopped paying altogether, the claimants would no doubt wish to bring the situation to a head by seeking to enforce their order. It would be very much better if the trial of the issues was now organised in an orderly manner, so that there will be no question of any need for an extensive hearing on the "extortionate credit bargain" issue if the "unenforceable credit agreement" point turns out to be a good one.

 

I wish I had discovered this when the RBS were going for a charging order against me. Basically, they got a judgment undefended, but if they are intending to further enforce the CCJ, you are legally entitled to call into question the enforceability of the accounts in the original claim.

 

Take care

Debs

[HP Mum]

Thanks Debs,

I need a day to re-read all my paperwork and draft some letters.

Will try to do that later/tomorrow.

Thank you for your help.

 

What has happened with your case ? And have you heard if Paul has got any further with his case yet ??

[HP Mum]

Having just read and replied to another person who appears to have a similar situation to mine, I thought I would re-open this thread to see if others are in the same situation.

I have done nothing since Nov 2010. Very silly I know.

I would be very interested to hear how Paulwlton has got on ? And any others who have fought NW and had this dodgy new loan account written off... ?

[debbbbsy]

Hi

 

I have PM'd you.

 

Debbie xxx