Nationwide Credit Card - In a Twist!

[Cornucopia]

Thanks Annie thats useful. I've put a post up there as I really need someone to tell me what words to put in my defence. Haven't slept very well for a few days argh!

 

Sam

 

Sam, if they can't find an agreement, then that is a WHOLE defence. Make absolutely sure that when you return your Court papers, you do not admit any part of the debt.

 

I am going to see if I can find somebody to help you further.....

 

Regards,

 

Corn x:)

[Pliny the Penuriosus]

Correct no agreement no enforcement, In fact you dould apply to have their action struck out because until they produce a properly executed 'signed' agreement they should not be even tryin to enforce the debt.

 

Can you tell us what their claim states & includes by way of documents

[hellhasnofury]

Hello, How long is it since you requested a copy of your true credit agreement. If it is passed the 12working days plus postage time, and a further one month down the line. They have committed a criminal offence and must be reported to the OFT.

 

I would think it very foolish of them to present a copy of the ca in court, if they have commited an offence, which is punishable because they have not sent you it.

[illonavamp]

Can you tell us what their claim states & includes by way of documents

 

Yes, this is everything that was in the envelope:

 

Claim Form

Page 1: Claim Form

Between: Nationwide Building Society Unsecured Debt Recovery and Me.

Page 2: Particulars of Claim: "In August 2000 the claimant and defendant made an agreement for a credit card. By failing to use the credit card in accordance with the terms agreed between the Claimant and the Defendant and by failing to repay the unauthorised borrowing against the account on demand, the Defendant is in breach of the terms of the credit card agreement. The claimant claims the full amount outstanding from the Defendant."

Page 3: Court Notes on Completion

Page 4 & 5: Court Notes for Replying

 

Response Pack

Page 1: Acknowledgement of Service (with three options - 'I Intend to Defend ALL', I intend to Defend part', 'I intend to contest jurisdiction')

Page 2: Admission Form

Page 3: Defence and Counterclaim

Page 4: Notes for Defendant on Replying

 

There is no supporting documentation whatsoever.

 

Sam

[illonavamp]

Hello, How long is it since you requested a copy of your true credit agreement. If it is passed the 12working days plus postage time, and a further one month down the line. They have committed a criminal offence and must be reported to the OFT.

 

I would think it very foolish of them to present a copy of the ca in court, if they have commited an offence, which is punishable because they have not sent you it.

 

I requested a copy on the 23rd February. They (and their debt recovery people, KPR) were also faxed a copy about a week later.

 

I have had absolutely nothing from either in response. I did get a phonecall from them about two weeks ago but told them that I would only accept a written response to my letter 23rd February and hung up.

 

Sam

[illonavamp]

Just to add to that, they issued a default which is still on my credit file, could I ask for this to be removed in my defence papers? Also, how/who should I write to at OFT?

[Pliny the Penuriosus]

well in that case they are well truly into criminal default & after reporting them to the ICO & TS you should apply to have the case struck out asap on the grounds that not only have they failed to particlarise their claim thereby denying you the right to plead. They are also barred from enforcing the alledged debt whilst in default of the CCA 1974 section 77-79 which states as follows:

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

(3) Subsection (1) does not apply to—

(a) an agreement under which no sum is, or will or may become, payable by the debtor, or

(b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a) showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

(b) where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

79 Duty to give hirer information

(1) The owner under a regulated consumer hire agreement, within the prescribed period after receiving a request in writing to that effect from the hirer and payment of a fee of £1 , shall give to the hirer a copy of the executed agreement and of any other document referred to in it, together with a statement signed by or on behalf of the owner showing, according to the information to which it is practicable for him to refer, the total sum which has become payable under the agreement by the hirer but remains unpaid and the various amounts comprised in that total sum, with the date when each became due.

(2) Subsection (1) does not apply to—

(a) an agreement under which no sum is, or will or may become, payable by the hirer, or

(b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

(3) If the owner under an agreement fails to comply with subsection

(1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

Furthermore:

Section 127 gives the court power to make orders for the enforcement of agreements that are, for various reasons, improperly executed. But subsection (3) provides that a court shall not make an enforcement order for an agreement that does not comply with section 61(1)(a) unless the debtor signed a document containing "all the prescribed terms."

[Pliny the Penuriosus]

A word of advice it's important to report creditors to the ICO for non compliance as soon as they fail to comply. It not only strenghens your hand when they are seen to flout the regulations but also establishes if they actualy have a properly executed agreement.

 

You have nothing to lose as if they DO have one they ARE going to produce it at sometime

[gizmo111]

A word of advice it's important to report creditors to the Information Commissioners Office for non compliance as soon as they fail to comply. It not only strenghens your hand when they are seen to flout the regulations but also establishes if they actualy have a properly executed agreement.

 

You have nothing to lose as if they DO have one they ARE going to produce it at sometime

 

This is not a matter for the ICO, but TS and FSO

[gizmo111]

Have a read here and let me know if you need any further help.

[illonavamp]

Have a read here and let me know if you need any further help.

 

Thats PERFECT. I will use that exactly as is. ~phew

 

OK, I'll let you know how I get on.

 

I'm guessing I should go ahead and report them to OFT and will look for the template for that. Thanks sooooooooo much I might actually get a nights sleep tonight!

[illonavamp]

oh p.s. the papers arrived on my doorstep Friday (11th) and the claim is dated 1st May 2007 - it IS 14 working days to reply isn't it?

[illonavamp]

Acknowledgement posted today wither way. Will post defence before end of week - wish me luck!

[gizmo111]

oh p.s. the papers arrived on my doorstep Friday (11th) and the claim is dated 1st May 2007 - it IS 14 working days to reply isn't it?

 

What is the date deemed served on the claim?

[illonavamp]

The date on the claim papers is 1st May.

I posted my acknowledgement of service this morning.

 

They just called me on the phone to discuss ( !! ) - I told them that I'm not prepared to discuss the case over the phone after court papers have been filed - presume I was right doing this ..

[gizmo111]

The date on the claim papers is 1st May.

I posted my acknowledgement of service this morning.

 

They just called me on the phone to discuss ( !! ) - I told them that I'm not prepared to discuss the case over the phone after court papers have been filed - presume I was right doing this ..

 

Depends on how you handle calls - they will have the ability to try and confuse you.

[illonavamp]

I thought as much, so I just said to them 'Well you've just issued court papers to me so it wouldn't be appropriate'

[illonavamp]

Defence sent today:

DEFENCE

 

 

1) The Defendant objects that the Claimant's statement of case does not comply with the Civil Procedure Rules Part 16 in that a copy of the purported written agreement between itself and the Defendant, which it cites in paragraph 2) and 3) of the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form. The Defendant is therefore unable to plead specifically to the allegations contained within the Particulars of claim at this time.

2) The Defendant has repeatedly requested a copy of the written agreement cited by the Claimant in its Particulars of claim (the first request being 19th February 2007), along with other such documentation in respect of the Defendant's alleged indebtedness to the Claimant, under a Data Protection Act 1998 Section 7 "Right of Subject Access" request. The Claimant has failed to comply.

3) Further to paragraph 2) above, a demand has been submitted by the Defendant under section 77(1) of the Consumer Credit Act 1974, requiring the Claimant to provide true copies of the alleged original agreement (the first request being 19th February 2007), as well as true copies of all documents referred to therein. The Defendant avers that whilst a creditor fails to comply with such demand any agreement would be unenforceable in its entirety by virtue of section 77(4) of the Consumer Credit Act 1974.

 

 

4) The Defendant objects that this action has been brought prior to the Claimant providing essential information and documentation, as outlined in paragraph's 2) and 3) above, despite repeated requests that it do so. The Defendant avers that the Claimant has acted without adherence to or regard for the Pre Action Protocols of the Civil Procedure Rules.

 

 

5) Accordingly, the Defendant requests a stay in proceedings until such time as the Defendant complies with the requests outlined in paragraph's 2) or 3) above and is therefore able to provide the necessary documentation in order that it can plead its case in compliance with CPR 16. The Defendant reserves the right to then plead further to the Allegations contained within the Particulars of claim.

 

 

[JonCris]

I suggest this addition

 

6) The Court is also asked to note that failure to provide a signed properly executed agreement is a complete defence against enforcement

[illonavamp]

I can use that in my subsequent plea. We'll see what happens.

[illonavamp]

Looks like this IS going to Court.

 

Nationwide have just sent me a letter containing a copy of a credit agreement that I signed in 2000 for a card BUT:

 

That agreement had a different card number on it - that card was stolen, reported so, and cancelled.

 

So my questions now are:

 

- Can I still say they haven't produced a signed credit agreement for the card?

 

- If it comes down to it:

 

- I asked for a copy of the signed credit agreement back in November 2006 - isn't there a set time under the Data Protection Act that they have to produce documents - have Nationwide committed an offence by not responding until now?

 

- My ultimate defence (if it turns out I have to) will be that back in August 2006 I phoned and asked them to cancel the Credit Card Protection Insurance numerous times, I signed and returned two cancellation forms (I didn't copy the first, and, as I don't have a photocopier or scanner, photographed the second - which isn't very good), and they never did cancel the insurance - and the charges for that were the only thing going on the card - which they were charging me against. I am prepared to commence payments again If they cancel the Credit Card Protection Insurance as I originally asked them to and have the balance revert to what it was back in August 2006.

 

- Can I do this? Should I? Is there anything else I should add?

 

Would appreciate any help anyone can give - I've never been to court before!!

[illonavamp]

~little bump

[illonavamp]

~bump

 

Sleepless in Andover :o

[Timsta]

No, your ultimate defence is:

 

"Failure to provide a signed properly executed agreement is a complete defence against enforcement"

 

This means that if they can't produce the document then there is NO WAY that they will be able to enforce the debt. In fact, the court is prohibited from finding against you!

 

You really need to concentrate on this as a point of law, it is a very powerful position.

[illonavamp]

TY Timsta, my question was though whether I can still use that defence if they have produced a credit agreement but for a different-old-cancelled card no. written on the agreement? If so, I will