HELP needed: Natwest - No CCA - FOS decided in their favour - should I go to court?

[AirCanada]

Dear Caggers,

 

In August of 2010, I decided to send an SAR to Natwest regarding a Credit Card account. I went through the process with the help of the information on CAG forums. The result of my SAR was that Natwest admitted that they do not hold a copy of the Credit Agreement.

 

They admitted this only after a fashion, I had to chase several departments as the Credit Card department told me it might be held with the branch etc. But the result was a letter in which they clearly state that neither Natwest Credit Cards nor the branches hold a copy of a Credit Agreement regarding my account.

 

In the meantime, I have moved to Canada as I got a job here.

 

I then sent them my request that the amounts paid by them and by me, as well as any charges they had taken, be calculated and the balance be paid to me, as the moneys had been paid under mistake. I also requested 8% interest on my payments from the dates I had made them. Natwest ignored several letters for 8 weeks and kept sending threatening letters, so I sent my complaint with copies of all document to the FOS.

 

I also had to call them to ask them to stop collection activities since the account was under dispute - my complaint being with the FOS. I told them the alleged 'debt' was unenforceable according to CCA 1974 and that according to DPA they were not to process my data, much less hand it to third parties, without my consent, i.e. without an agreement. I haven't heard back from NatWest themselves since then.

 

The FOS has now sent me the following reply:

 

"my decision on your complaint about NatWest

 

Following your recent correspondence on your complaint, I have carefully considered all the information that you and NatWest have provided - and I have come to the following conclusion:

 

NatWest is not required to refund xxxxxx his credit card payments.

 

...

 

adjucator's notes

 

xxxxxx has queried the enforceability of the credit card debt as NatWest is unable to supply a copy of the credit card agreement. The issue of enforceability is for a court to decide, rather than the Financial Ombudsman Service, should NatWest seek to take further action.

 

A lender who has not provided a copy of a credit agreement - or has provided a copy that may not meet the requirements of the Consumer Credit Act - can still report the account position to credit reference agencies, demand payment, issue a default notice, instruct debt collectors or bring legal proceedings.

 

NatWest has provided xxxxxx's credit card statements. The statements support use of the credit card. It is reasonable for NatWest to ask xxxxxx to repay his borrowing."

 

The letter also states:

 

"how we decide complaints:

- we are completely independent - and we make up our mind based on the facts of each individual case. When we have looked at a complaint and weighed up all the facts, we may decide either that the business you are complaining about acted wrongly and you have lost out as a result - or that it has done nothing wrong and it treated you fairly.

- If you do not accept my conclusion, you can ask for a review. This can involve - at the last stage - a final decision by one of our ombudsmen. To ask for a review of your case, please use the card enclosed with this form."

 

I am obviously disappointed with this decision.

 

First of all, the decision says Natwest doesn't need to refund my credit card payments, when that isn't even what I asked for! What I asked for is for the payments made by myself and by the bank, as well as charges, be calculated against each other and I be paid the difference (plus 8% interest on my payments). That is a different proposition, is it not?!?!

 

Secondly, according to existing legislation as I understand it, (a) NatWest is chasing me for an alleged 'debt' for which they do no hold an agreement - contrary to DPA. (b) As there is no agreement, I understand that the moneys paid by me and them are paid 'under mistake'. © I understand that I am therefore entitled to a refund of the balance, as well as 8% interest on my payments as I have been deprived of the use of this money.

 

Apart from the FOS's non-answer to my complaint, these three points indicate to me that NatWest is acting wrongly when they keep chasing me for payment and when they do not calculate the moneys paid under mistake. That means that I am losing out as a result. Why does it not mean that to the FOS?! I don't know.

 

Now, as I consider how to move forward with this, I would like to ask for the help of experienced people with the following questions:

 

(1) Should I keep using the FOS, i.e. submit for a review? They have said that they don't deal with issues of enforceability. Is this true? If I were to ask for review, I would not be able to submit any new documents -- though I don't understand why Natwest's admission that they do not hold an agreement was not deemed sufficient by the FOS to support my complaint! I could perhaps state clearly which legislation NatWest is not adhering to by their actions. (And perhaps also that they took way longer than they should have with the SAR, and that they ignored my letters for months... though I don't know if that will help my case in the FOS's eyes much.) If this route is advisable, I would appreciate help with my letter asking for review. Is it true that the FOS doesn't consider questions of enforceability? Is the fact that their 'decision' doesn't even answer to the requirements I stated in my complaint - not refund of my payments, but calculation of moneys paid under mistake - sufficient to warrant them back-tracking? And, which specific legislation do I need to cite?

 

(2) Should I not do anything, and hope that Natwest will eventually write off the alleged 'debt'? I don't like this option much, because I will probably be harassed by the debt agencies they deploy overseas, and because I would not be able to ask for calculation of moneys paid under mistake and 8% interest on my payments.

 

(3) Should I take Natwest to court myself? For this option, I would need to know with near 100% certainty that I would win. I would also need to know how to do this while living in Canada. I do not intend to return to the UK. Therefore, this option may be complicated. If I'm certain to win it, though, I think I have the courage to do it...though it does seem very daunting. If this option is the most advisable one, I think I will need all the help I can get, e.g. on how to launch this with a court while living abroad.

 

Thanks for taking the time to read this, I hope some people with more experience will be able to advise me.

 

 

Edited February 10, 2011 by AirCanada

[pop_gun]

firstly, the FOS are correct in that you should go to court. secondly the FOS (as you may have gathered)

is utterly useless.

 

forget going for a judicial review as they almost never change the outcome of the ombudsman ruling.

this is partially because the ombudsman is free to rule any way they choose (whether lawfully or not).

take your case to court. the courts should rule in your favour. use compound interest (26.8% p.a.)

to calculate the interest due on bank charges (the banks do!).

 

correct me if i'm wrong but i think you're under the impression you can claim back the credit card

payments you've made. if you go to court you'll be arguing the contract between you and the bank

is unenforcable. not as it seem you're implying; it never existed (in which case you would have grounds

to a full refund of any monies paid).

 

p.s. you could have a reclaim company deal with this, while you're abroad or brief someone you trust

to act on your behalf.

[AirCanada]

firstly, the FOS are correct in that you should go to court. secondly the FOS (as you may have gathered)

is utterly useless.

 

forget going for a judicial review as they almost never change the outcome of the ombudsman ruling.

this is partially because the ombudsman is free to rule any way they choose (whether lawfully or not).

take your case to court. the courts should rule in your favour. use compound interest (26.8% p.a.)

to calculate the interest due on bank charges (the banks do!).

 

Yes, I have gathered that the FOS is not helping!

 

I am thinking I will take this to the small claims court, I have just read that claimants who live abroad can submit written evidence only. Since it will be a fairly straightforward submission of written evidence (i.e. bank letter admitting that no CCA is held by them anywhere), I think I can do this from here.

 

Thanks for the suggestion of compound interest on their charges against me.

 

correct me if i'm wrong but i think you're under the impression you can claim back the credit card

payments you've made. if you go to court you'll be arguing the contract between you and the bank

is unenforcable. not as it seem you're implying; it never existed (in which case you would have grounds

to a full refund of any monies paid).

It was the FOS answer that implied I was asking for a refund. I was requesting in my complaint letters that my payments and Natwest's payments be offset as 'moneys paid under mistake' and that the remainder be paid out to me (plus 8% stat. interest on my payments). I wrote this because I had read on CAG that this is the ruling a judge would be likely to come to in cases of no CCA being held and therefore the alleged 'debt' being unenforceable. Hence, until now I thought I would stick to that when going to court.

 

But please feel free to correct me if I'm wrong, i.e. if I should instead be arguing that an agreement has never existed and hence claim all my payments back full stop. It would be considerably more money at stake - and might be over the limit for small claims court. I believe this raises the court costs considerably, increasing the risk for me if lose. I would want to know that there is a positive precedent that I can refer back to in that case, to be 100% certain. Do you know if there is?

 

Furthermore, if I did this, would my change of stance from complaint letters to court case be detrimental? Or could I just argue that I have since 'learned' that I have a right to claim full refund of all payments?

[pop_gun]

It was the FOS answer that implied I was asking for a refund. I was requesting in my complaint letters that my payments and Natwest's payments be offset as 'moneys paid under mistake' and that the remainder be paid out to me (plus 8% stat. interest on my payments). I wrote this because I had read on CAG that this is the ruling a judge would be likely to come to in cases of no CCA being held and therefore the alleged 'debt' being unenforceable. Hence, until now I thought I would stick to that when going to court.

 

 

you have me at a disadvantage as i wasn't aware of the CAG article stating this. this would represent the best

possible advice as it allows you to recover the remaining balance and interest on your payments.

 

I've had to edit this post as i'm reading a case such as yours where the litigant has sought loan

repayment.

 

he won his case

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?17630-TheCobbettSlayer-v-NatWest-***WON***/page4

 

my earlier understanding of your case never led me to believe the repayment could be

paid back if enforcability were an issue. claiming for the repayments and questioning the

validity of the charges (i.e. unfair) is worth pursuing.

 

 

p.s. the above thread is a real eye opener.

Edited February 11, 2011 by pop_gun

[AirCanada]

Thanks for this pop_gun. I enjoyed reading that thread. I think what happened there may not be applicable to my case:

 

'The amount of the consolidation loan is actually less than the amount of charges made so I'm going for the whole lot as it is a matter of basic maths that if it hadn't been for 9k in charges I wouldn't have needed to borrow 6k to clear my "unauthorised borrowing"'

 

That's not true for my case, so I think recovering the balance and interest on payments is what I am looking at.

 

Cheers!