Urgent Advice Please - Re: Nationwide Credit Card & Court Action

[terrytibbs100]

Hi,

 

I've started another thread as I'm looking for more general advice (as well as specific if anyone can help).

 

I have a DMP with Payplan which is up to date and had been going well. Then I received a letter from KPR/Nationwide (same thing I think!) threatening court action unless I upped my payments to 3% of the balance - not an option.

 

Subsequently I received a court claim form (Swindon).

 

Have requested and received my CCA and it looks like it's possibly unenforceable - but this was inconclusive. I've posted the links to the scans of CCA and T&Cs below.

 

Have now also applied to court for time extension (recorded delivery letter) to prepare my defence and simultaneously made a Subject Access Request (recorded delivery letter).

 

Anything else I should be doing now?

 

The court form said I have 28 days to prepare my defence - does that include the original 14 days (which expires on 10 June) or is it 28 days from when they received my request, or 28 days from 10 June - if all that makes sense?

 

Anything else I can or should be doing now?

 

Thanks in advance for any help.

 

Scans:

 

 

 

 

 

 

 

Many, many thanks. TT

[42man]

Have a read of this...you should be submitting a letter to the opposing solicitors requesting any information in line with the court claim under the civil procedure rules... - http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

[harrassed senior]

If you are unsure of the length of time you have, ask the court for the date that your defence should be received (by them) and of course either take it personally or send a few days earlier by Recorded Delivery.

[Hardupnotfedup]

It is an application form IMO, the layout looks wrong and why the 2 signature pages you need to get some other opinions on this.

[Pinky69]

They approved it on 4/09 according to their signature at the bottom - but the date stamp states that they didn't receive it until 6/09 - they must have crystal balls!

[terrytibbs100]

Have a read of this...you should be submitting a letter to the opposing solicitors requesting any information in line with the court claim under the civil procedure rules... - http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

 

Thanks, I sent them a letter last week asking for all the information on the account, default notice etc.etc. This was the wording I used (thanks, Harassed Senior):

 

Dear Sir/Madam,

 

 

This is in acknowledgement of your letter dated ................and also of .............The contents of which have been duly noted.

Further to you stressing that county court proceedings will be actioned by yourselves should I fail to make contact/stressing that proccedings are about to be commenced in regard to alleged sums outstanding and alleged owed by me on the above account,I remind you of Civil Procedure rules protocols. Nevertheless in my response to your letter please be advised of the following.

 

 

I put forward that you now have a requirement to provide me with;

 

 

1) A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. Please note that a "true copy" as defined by the Consumer Credit Act will not be acceptable in this case, and a copy of the actual executed agreement, including signature, is required.

 

2) All records you hold on me relevant to this case, including but not limited to

 

1. A transcript of all transactions, including charges, fees, interest, payments and both the amounts of credit and any repayments made to the account.

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations

3. Where there has been any event in the account history over this period that has required manual intervention by any person, disclosure of any indication or notes that have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to the account held by me with........... is required.

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

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

6. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial Breakdown of how the charge was calculated, and what the charge covers.

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

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

9. 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.

10. Copies of statements for the entire duration of the credit agreement.

 

I make this request to ensure that each party has equal footings which can allow action to proceed speedily fairly and without undue costs or waste of courts time,as defined within Pre-action Practice Directions -Protocols 4.6 of the Civil Procedures Rules.

I will give you 14 days to respond with the above,failure to comply will result in a complaint being made to the Court./In addition to the fos for any breaches of OFT and CCA codes.This includes breaches as a result of initiating a Country Court claim where failing to provide or produce documents make litigation improper..

Specifically this relates to one or any number of the following;

 

* demand any payment on the account, nor am I obliged to offer any payment to you.

* add any further interest or charges to the account.

* pass/sell the account or outstanding balance to any third party.

* register any information in respect of the account with any of the credit reference agencies.

* issue a default notice related to the account.

 

Furthermore,I reserve my right to make a copy of this letter available for inspection to the Court and Financial/Consumer regulators should you fail to comply with this request.

I await your response,and should you need further clarification on any of the above points,then I suggest that you direct them to your legal department.

 

 

Does this letter suffice with a valid request for the information? Or anything else you'd advise me to send?

 

Many thanks for the help.

[terrytibbs100]

It is an application form IMO, the layout looks wrong and why the 2 signature pages you need to get some other opinions on this.

 

Yes, I thought that it looked somewhat like it had been cobbled together. In another thread:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/261495-nationwide-cca-enforceable.html

Abby25 says that the signature should be within the 4 corners of the agreement, which would include the required terms. This clearly isn't.

 

ANyone else got any insight on the validity of the CCA?

 

Thanks for the help and advice!

[terrytibbs100]

If you are unsure of the length of time you have, ask the court for the date that your defence should be received (by them) and of course either take it personally or send a few days earlier by Recorded Delivery.

 

Thanks for this advice, will ring them today. Still waiting for paperwork from Nationwide in order to see what case I may or may not have (apart from the possible unenforceable CCA).

 

Thanks again.

[terrytibbs100]

They approved it on 4/09 according to their signature at the bottom - but the date stamp states that they didn't receive it until 6/09 - they must have crystal balls!

 

Nothing would surprise me with them based on my experiences so far

[Jasper1965]

 

ANyone else got any insight on the validity of the CCA?

 

 

 

page 1 does not have "Page 1 of 2" as you might expect when looking at the second signature page.

 

Page 1 shows a date of 4th Sep but page 1 also shows the document was received on the 6th Sep

 

The print at the bottom of page 2 shows the 2nd page to be a "credit card direct debit" form.

 

IMo page 1 unenforceable application.

Page 2 partial or hugely doctored direct debit form.

[terrytibbs100]

page 1 does not have "Page 1 of 2" as you might expect when looking at the second signature page.

 

Page 1 shows a date of 4th Sep but page 1 also shows the document was received on the 6th Sep

 

The print at the bottom of page 2 shows the 2nd page to be a "credit card direct debit" form.

 

IMo page 1 unenforceable application.

Page 2 partial or hugely doctored direct debit form.

 

Thanks for this - just what I wanted to hear

 

I'm still waiting for SAR to come through so let's see what is in there to base my defence on as well.

 

Any other opinions gratefully received.

 

Thanks again

[Abby25]

Hi TT,

 

This may be helpful to you with regards to prescribed terms being located in the T&C doc...

 

“In the judgment of *TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 "[11]* Schedule 1 to the 1983 Regulations sets out the information to be contained in documents embodying regulated consumer credit agreements. Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or *the court can identify within the four corners of the agreement*. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

I'm sure there's also ref to the pres terms not being allowed to be embodied within the t&cs, actually within the CCA74 itself.

With regards to the mention of T&Cs in the application form ...( aside from whats discussed in the above text), to my mind, this statement could be said to refer only to the additional card holder, as from what I've seen, the t&cs are briefly mentioned in their boxed and isolated signature area only, and just above their signature, I've seen nothing of the same where your designated signature box is. (this may be splitting hairs.. but just an observation that could help?)

 

Anyhoo, apart from that, from the great advice I've previously had on CAG, I believe that what NW have sent is unenforceable primarily due to no prescribed terms to be found within the 4 corners of the signed agreement ... unfortunately for them hiding the Pres Terms in the supplementary t&cs isn't permitted.

The pres terms have to be pre-signature clear, prominent, and transparent to the signatory, so in my opinion you've got a real arguement of unenforceability ... which is the same basis I've disputed my own NW ccard agreement on....

 

Hope this helps (even just a little...) or gives food for thought ...

 

Good luck

Abs x:)

Edited June 8, 2010 by Abby25

[terrytibbs100]

OK, got the first batch of paperwork back from Nationwide today. Looks like DN is OK - asks for arrears and gives a date - anything else that might make it invalid? Can post a scan if needed?

 

Looks like my best defence is an unenforceable CCA.

 

I have about 14 days to reply to court - any suggestions on what wording I should use to base my case?

 

Thanks in advance, TT

[HadEnough]

yup scan it pls:)

[terrytibbs100]

Ok, here goes. I got a letter today with CCA, T&Cs (same as previously posted) and default notice. The transactions, fees, charges & interest statement will "be forwarded shortly". Am I correct in saying they'd have to provide these within the 12+2 days?

 

Anyway, here's the DN and last letter I received before the court claim form. Any help is as ever gratefully appreciated!

 

 

 

 

[terrytibbs100]

Sorry to bump this thread up, but I wondered if anyone can confirm if the DN is OK or faulty? My understanding is that it looks enforceable.

 

Looking to prepare my defence over the weekend on the basis of faulty CCA, so any help or advice is much appreciated.

 

Thanks again, TT

[HadEnough]

To my untrained eye it looks good so long as the figures are ok?

One thing that doesn't look ok,(again to my knowledge) is the court fee they've added, i thought that the court decided if they would award cost's not the claimant, and it seems a bit much also.

hopefully someone with better knowledge be come along soon

[terrytibbs100]

To my untrained eye it looks good so long as the figures are ok?

One thing that doesn't look ok,(again to my knowledge) is the court fee they've added, i thought that the court decided if they would award cost's not the claimant, and it seems a bit much also.

hopefully someone with better knowledge be come along soon

 

Thanks for that, anyone else got any insight?

 

Thanks again

[Abby25]

HI TT,

 

Your default to me looks ok... the one they sent me wasn't correctly executed for various reasons .. inc time scale for remedy.

 

So, go back and see if you have a date it was delivered, how it was delivered, i.e 1st class or 2nd class mail, or courier etc (keep the envelope if you still have it....) then check the date of service they gave you against the date you ACTUALLY recd it - I think you have to have 14 days clear service .. there is a great thread regarding what constitues a correctly executed default .. i.e wording, layout, dates of service etc .. may be worth you taking a quick peek at it ....

 

 

Abs x:)

[terrytibbs100]

HI TT,

 

Your default to me looks ok... the one they sent me wasn't correctly executed for various reasons .. inc time scale for remedy.

 

So, go back and see if you have a date it was delivered, how it was delivered, i.e 1st class or 2nd class mail, or courier etc (keep the envelope if you still have it....) then check the date of service they gave you against the date you ACTUALLY recd it - I think you have to have 14 days clear service .. there is a great thread regarding what constitues a correctly executed default .. i.e wording, layout, dates of service etc .. may be worth you taking a quick peek at it ....

 

 

Abs x:)

 

Thanks Abs, much appreciated again.

 

Looking like I'll be going down the unenforceable CCA route though. Does anyone have any general advice on the best way to present my defence?

 

Thanks again

[Jasper1965]

Now they're claiming the agreement was dated 7/9/2000?

Be interesting to see what date appears on the POC's for this agreement, could help you enormously if the POC's refer to a document that does not exist.

[terrytibbs100]

Hi,

 

I have received claim forms from Swindon CC for a Nationwide credit card debt. CCA looks questionable, DN looks OK but need to clarify date it was sent etc.

 

Claim form itself had no CCA/DN attached, just basically the card number and the balance owing.

 

I have been researching what to do next and have already acknowledged service (need to get back to court by 24 June) and done CCA and SAR requests.

 

SAR has not yet been fulfilled completely - they sent CCA, DN but not statements and info on charges etc (they said they "would follow by return as soon as possible"). Is this in itself part of a grounds of a defence for me if they don't provide in 12+2 days? We're there within 1-2 days from now.

 

Not sure what to do next to put together a defence and how to word it. Any template letters/defences that are appropriate please?

 

My documents are on this thread if that is relevant in any way to the advice I may be given.

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/262680-urgent-advice-please-re.html

 

Many thanks in advance for any help.

 

Best Wishes, TT

[miss muppet]

Hope the following link will be helpful, also have a look at the legal successes forum, probably your best route is the embarassed defence:-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

[miss muppet]

OK, I'm back, post 12 of following link is the embarassed defence, amend to suit:-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/261222-court-papers-received-ffom.html

[terrytibbs100]

OK, I'm back, post 12 of following link is the embarassed defence, amend to suit:-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/261222-court-papers-received-ffom.html

 

Thanks for this, MM - much appreciated. Will get this off today.

 

Quick question to MM or anyone else reading...

 

Are you recommending embarrassed defence because I've not had all the paperwork back from the SAR or because the CCA is unenforceable or a combination of the two? Need to double check but I believe today is last day for them to comply with SAR based on the 12+2 days. My defence needs to be with court by 24 June.

 

Any other ideas?

 

Thanks again for being a great help.

 

TT