Thread: Consumer Credit Act 1974 s76

Hi,

My bank is demanding the repayment of my overdraft (in a completely retaliatory action btw) under s76(1) of the Consumer Credit Act. Now subsection 3 of that section states that

Originally Posted by CCA s76(3)

A notice under subsection (1) is ineffective if not in the prescribed form

Can anyone tell me what this 'prescribed form is'? I can't find any info in the Act itself. I've looked on the web and have come accross this site which states that:

The notice has to be written in a particular way. If you receive a notice you should get legal advice to check that it is a proper notice.

The notice should contain the following;

# The notice should say how much should be paid to bring payments up to date.

# When payments should be made.

# What will happen if payments are not made.

# How the agreement can be brought to an end and that if payments are made the agreement will not be brought to an end.

Now Lloyds have not included in their letter either 'What will happen if payments are not made' (I presume because they would normally pass details of the debt onto the reference agencies but I've made it very clear to them that I'm aware that doing this in my case would be a breach of the Banking Code), or 'How the agreement can be brought to an end and that if payments are made the agreement will not be brought to an end.'

So I'm thinking if this refers to the 'prescribed form' then I clearly have some legal grounds to tell them to go forth and multiply until my dispute is settled. Can anyone help me with this please?

EDIT: The full letter they sent is below

Collections Centre
Brighton BN1 4BE

Date: 30th August 2006

Dear Mr Mindzai,

IMPORTANT : YOU SHOULD READ THIS CAREFULLY

ENFORCEMENT NOTICE Served Under Section 76(1) of the Consumer Credit Act 1974.

Cheque Account No : xxxxxxxxx
Cheque Account Balance : £-1054.78
Unauthorised Overdrawn Amount : £254.78

The terms of the above Overdraft Agreement include the rights of the Bank, at any time to terminate the Agreement and to demand immediate repayment of the overdrawn amount.

We hereby give you formal notice of our intention to terminate the Agreement on 8th September 2006 and to demand payment of £254.78 plus interest, which is accruing daily.

The amount payable is based on the balance at todays date plus accrued interest and charges. The balance will need to be adjusted to follow any further debits or credits to the accounts. In the meantime your right to withdraw is suspended; you should not write any more cheques, and no other payments out of the account (standing orders, direct debits etc). will be made.

If you are unable to make this payment you may be able to avoid further action by telephoning us now on 0870 – 2424760 to discuss repayment proposals.

IF YOU HAVE ANY DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT, OR TAKING ANY OTHER ACTION REQUIRED BY THIS NOTICE, YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU (OR ANY SURETY) MORE TIME.

IF YOU ARE NOT SURE WHAT TO DO YOU SHOULD GET HELP AS SOON AS POSSIBLE, FOR EXAMPLE, YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS ADVICE BUREAU.

Dated this day 30th August 2006

Thanks

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Hi,

This is in the CCA regarding the contents of Default Notices (DN's):
88 Contents and effect of default notice

(1) The default notice must be in the prescribed form and specify—

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

(c) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.


(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed.

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.