Jump to content


Natwest Charges Reclaiming Court Case - they're going for SJ/strike out


gaz2006
style="text-align: center;">  

Thread Locked

because no one has posted on it for the last 5517 days.

If you need to add something to this thread then

 

Please click the "Report " link

 

at the bottom of one of the posts.

 

If you want to post a new story then

Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

Recommended Posts

well i hope you and your friend happy with that presume you mean balance paid by your friend as presume nasty westy were claimants not your friend ... I presume as my counter claim is close to there claim if successful one may counteract other we will see im not a lucky person regards Gary

Link to post
Share on other sites

  • Replies 77
  • Created
  • Last Reply

Top Posters In This Topic

Top Posters In This Topic

Help did you get that i need help ... had telephone case management judge has told nasty west solicitor they should apply for summary judgement on loan part of case

If they get this I have no way of paying and dont know what to do my credit is smashed because of all the defaults and just dont know where to turn he is adjourning other part until he has read up on my original claim .. this is around 13k what can i do .... please refer to other notes above but to remind you that 4200 debited in charges defaulted on current account and loan as couldlnt pay back 4200 on current account couldnt pay in on loan also . Nasty refused to cancel defaults the paid the charges but rest of my claim still outstanding . I have stated defaults are illegal as defaulted only because of their charges and loan went into default because they defaulted my current account as hadnt got money to pay it all back HELPPPPPPPPPPPPPPPPPPP

What defence if any have I got to avoid summary judgment ????

Im as worried about this more than any otehr case I have on at present

Link to post
Share on other sites

Gaz,

Got your Pm, and taken a look at your thread.

Tried to reply by Pm, but your mailbox is full (you need to do a clear out.... remember you can also download and store your previous pm's onto your own computer if you need to keep any for reference... the way to do this differs slightly depending upon the type of computer and operating system you are using, so have a little play to find best way, and once successful then delete the messages from your mailbox to clear some space, remember to do both incoming and outgoing messages).

To be honest, I'm a bit confused at to exactly what is going on here, plus I have no experience of dealing with Natwest.

It looks like you are already receiving some really good advice from peeps like Martin, so hopefully they will be able to help you.

I will try to take a look at your thread in more detail later or over weekend, and if I have anything I can add will either post it up or Pm you.

 

Good luck and best regards

 

Pm

All opinions and advice I offer are purely my own, and are offered without any liability. If unsure seek the help of a licensed professional

...just because something's in print doesn't mean its true.... just look at you Banks T&C's for example !

Link to post
Share on other sites

I can't see how they can get Summary Judgment, IMHO. You have, at least, a partial defence regarding the charges and the court can't consider that part of the claim until the OFT TC outcome is known.

 

What about the rest of it, though? Do you dispute the remainder of it, or, if you're honest with yourself, would you say they are right to pursue it? Have you requested documentation showing the debt is fully enforceable in court in the first place? Have they supplied anything? Sorry for the questions, but I don't see this in the thread.

 

Also, if you were to agree that you do - and should - owe the debt, you could consider offering them a consent order, agreeing to repay the amount you agree you owe in installments that you know you can afford. This way, you would avoid a CCJ, if it get that far, and they can't add interest, plus you pay the amount you can afford and no more. The key will be to get them to agree to it, but they probably would if you are reasonable and realistic.

 

I'm never one to admit anything to anyone, until the whole case is proven, but it's an easy way out if you can't be bothered with the litigation, Gaz.

 

Link to post
Share on other sites

What the judge is doing i think is trying to seperete loan from other part of claim . In my view as Nasty Westy debited me with £4000 charges I couldnt pay in to meet loan as had to find £4000 plus loan repayments to do that ie bring account to zero . However what he is saying is I have a loan and therefore Nasty Westy want it back and I should pay unless I put up reasons why not to

 

In fact havent been given cca for loan so any judgement cant be given unless thats given and legal may well be so thats my first point of defence

 

In my view i should be put back in position before they loaded charges and everything was ok but nasty want all money in one lump but I can try to negotiate though they will probably want me to drop rest of claim or compromise etc . I see it as their claim for loan to be repaid is their strong point .

 

Other points I need advice on my overall claim

They didnt ie Cobbetts answer my S10 I believe they are wrong in not even answering . Over 20 letters to Nat West werent answered in my correspondence ie totally ignored . I also feel as the defaults were for amount on current account purely covered by charges that was wrong yet they have failed to remove so thats a plus point the loan fell into default in my opinion because of the charges but judge feels this is seperate issue not related to the charges . i disagree but i can see his point hence I need good defense on this stage for loan only

 

My worry is having to pay all loan I havent got it Nasty Westy solicitor said to me they would get charging order on my house or bailiffs in even though amount of my claim and counterclaim is more than what they are claiming ie due to "illegal imo defaults" and damage to reputation but if they split the claim to be loan is seperate to other part not sure what to do .

 

However and Im not sure here if their default is wrong for current account where loan payments were taken does that make their loan account default wrong ?

 

If you have any more ideas let me know or any more questions

regards Gaz

Link to post
Share on other sites

Further to my above post as I sent S10 to cobbetts to deal with regarding unlawful processing of my data and never got a reply what ca I do ... as they still processed it surely they are breaking rules how can I turn the tables and screw them regarding this or an:mad:ything else ?

Link to post
Share on other sites

Yes I know cobbets isnt data controller but as they were lawyers dealing with case and all correspondence was via them I sent along with other things I was sending at the time a S10 asking them to deal with it as they were dealing with case ie passing onto nasty westy presumably they have a duty to deal with any letters they get etc and clearly in this case they have either

1 ignored it

2 passed it on and nasty westy havent done anything with it as my defaults etc still there

I knwo your going to say i should have snet direct to nasty westy but they have a duty of care to act on thinsg sent havent they ?

Regards Gaz

Link to post
Share on other sites

You need to send the s.10 Notice to the Data Controller - yes, they have a duty to pass it on, but if they don't NW can claim they haven't received it, so it's ineffective and you can't prove that they did.

 

Send it special delivery to the Data Controllers address registered with the ICO - you'll find it on their website; Information Commissioner's Office - ICO

 

Link to post
Share on other sites

I feel in in a whilrlpool going round and round and not getting anywhere as s10 was with other documents sent recorded delivery I have receipt maybe I have claim for negligence against cobbets for not dealing with it ?

Link to post
Share on other sites

Here's s.10;

Quote

10 Right to prevent processing likely to cause damage or distress

(1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons—

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b) that damage or distress is or would be unwarranted.

(2) Subsection (1) does not apply—

(a) in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or

(b) in such other cases as may be prescribed by the Secretary of State by order.

(3) The data controller must within twenty-one days of receiving a notice under subsection (1) (“the data subject notice”) give the individual who gave it a written notice—

(a) stating that he has complied or intends to comply with the data subject notice, or

(b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.

(4) If a court is satisfied, on the application of any person who has given a notice under subsection (1) which appears to the court to be justified (or to be justified to any extent), that the data controller in question has failed to comply with the notice, the court may order him to take such steps for complying with the notice (or for complying with it to that extent) as the court thinks fit.

(5) The failure by a data subject to exercise the right conferred by subsection (1) or section 11(1) does not affect any other right conferred on him by this Part.

 

Where did you send the s.10 Notice?

 

I can't see how you can have an action of negligence against Cobbetts, as the duty to pass information on exists between them and NW, not between you and them, if you see what I mean? They may have breached professional ethics (if they had any to start with, that is!) by not passing it on.

 

If I were NW and you brought an action against me in this situation, my defence would be that you hadn't provided a s.10 Notice in writing, as stated in the Act, so the Notice doesn't apply as it has been mis-served. I'm not being funny with you here, and also not intending to make you feel like you're in a whirlpool, but this is easily rectified - just send a copy of the original s.10 Notice/letter to NW, now, so it doesn't come back to bite you at a later date.

 

Link to post
Share on other sites

Ill d it again just getting depressed about what to do with impending judgement re loan stating I have no reason not to repay when they debited me with over £4000 so I couldnt pay that and loan repayments

Link to post
Share on other sites

  • 3 weeks later...

I now have notice of hearing for SUMMARY JUDGEMENT UNDER CPR24 for loan account . Loan went into arrears as current account where payments were made from had over £4000 WORTH OF CHARGES AS I HADNT £4000 to pay them back and then extra to meet loan repayments I was defaulted on loan as well . £4000 charges paid back but logical view states I should be put back in position before the £4000 charges but law isnt logical . I have seen no agreement for loan to know if its enforceable nothing served with summons and Nasty Westy have had defaults on my file for loan and current account and refused to remove what can I do HELPPPPPPPP I need a defence

Link to post
Share on other sites

Here's a 'standard' pt2537 defence for you to look at and modify for your own case

In the xxxxxxxx County Court

Claim number xxxxx

 

 

 

Between

xxxxxxxxxxx- Claimant

 

and

 

 

xxxxxx - Defendant

 

 

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

DEFENCE

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

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in 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 as required by CPR Practice Direction 16 paragraph 7.3.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

4. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

 

5. In respect of that which is denied, on xx/xx/2007 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974.

 

6. The claimant complied with this request by sending a copy of a signed application form and a copy of unrelated terms and conditions. Whereas this complies with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, it does not satisfy the requirements of s61 of the Consumer Credit Act 1974 for a properly executed agreement in either form or content. Therefore, by virtue of s65 of the Act, the supplied copy agreement may only be enforced by a court.

 

The relevant Act of Parliament in this Case

 

7. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

8. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act

 

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

9. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act under which this agreement is regulated.

 

 

The requirement for the executed agreement to be brought before the court

 

10. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

11. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

12. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

13. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

14. I refer to 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."

 

15. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

16. Notwithstanding point 19, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

17. Therefore the claimant must provide a copy of the agreement compliant with the regulations as laid out in points 14 to 20 of this defence to have any right of enforcement. I note that the claimant should also have provided this documentation prior to bringing this action and it is requested that the claimants case be dismissed until such time as they comply with the S78(1) request made on xx/xx/2007 as laid out above.

18. Further, under CPR Practice Direction 16 paragraph 7.3 an original of the agreement must be produced in court. There is no provision that an agreement containing the prescribed terms may have existed or that the balance of probabilities are that such an agreement existed.

The courts power of enforcement

 

19. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

 

20. Further more the courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

21. With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

22. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

23. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

25. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed

 

24. Therefore I respectfully request that if the court does not dismiss the claimant s case as laid out in point 21, that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances

 

25. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement as unenforceable.

 

Conclusion

 

26. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

 

(2) 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 or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

27. If the court considers it in appropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial

 

28 Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

29. Should the court disagree with the suggestion to strike out the claimants case for the grounds set out. I respectfully request that the court allow me to amend my defence when the claimant produces the requested documentation and I am given sufficient time to inspect the documentation

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

 

 

Link to post
Share on other sites

Steven thats a comprehensive and brilliant reply . ill do as you say just a question though as they havent complied with S10 ie processing info re default on this loan account when its defaulted due to their charges on current account do I throw that in as well if so in what format ? Regards Gaz

Link to post
Share on other sites

  • 2 weeks later...

Just thought id tell you had summary judgement hearing judge has told Nasty Westy they must file within 14 days copy of agreement and default notices etc and i must within 28 of receipt put full defence and more details of my counterclaim . I liked the judge seemed to have sympathy Regards Gary

Link to post
Share on other sites

Maybe but not 100% sure I see your having same problems as me my credit destroyed by their actions inability to get bank account , credit card , loans move mtge even effected my job etc .. any info you can give me to help my case please let me know by links or private message regards Gary

Link to post
Share on other sites

  • Recently Browsing   0 Caggers

    • No registered users viewing this page.

  • Have we helped you ...?


×
×
  • Create New...