Overdraft & Gold Card

[Coactum]

To acquaint yourself with general background info you might firstly want to refer to this thread http://www.consumeractiongroup.co.uk/forum/general-debt-issues/203269-introduction-background-my-debts.html

 

From the previous thread you will note that my wife and I had a joint bank account and I had a credit card from First Direct. I need specific help in relation to the overdraft as I have today received letters from Central Debt Recovery Unit in relation to the overdraft. It should be noted that I have heard from them once before. They wrote to me in December 2008 offering a 50% discount on my Credit Card balance. Quite why they would think I had that money let alone in the run up to Christmas is a mystery. I should also add at this stage that First Direct hardly help their negotiations by constantly appointing different agents. Because in Addition to Central Debt Recovery I have had communications from Midas Legal services, DG Solicitors, Metropolitan Collection Services Limited and Moorcroft Debt Recovery. Yet at no time have First Direct told me that they have appointed an agent or instructed me who exactly I should be communicating with. Indeed I wrote to them back in September 08 and again this March on this exact topic. In these letters I specifically asked who was representing them and needless to say await a satisfactory response.

 

Anyway let us get back to the overdraft situation. This gives me cause for concern because it is the only debt that also includes my wife. Although I am self employed my wife has a part time job and therefore in the unlikely event that they were successful in any court action there is a possibility that my wife could have her wages arrested. Strangely enough this is rather amusing because the company she works for are in financial difficulties. On January they adjusted the wage cut off date so that only 3 weeks pay was awarded. In February they were late in paying the wages. By March they were 3 weeks late in paying and so far the wages due on the last Thursday in May remain outstanding. So, I guess if an arrestment was awarded it would be just as embarrassing for her employer as her. I know that court action may be a very long way off but it is disturbing to have threats that also affect others. I can cope but my wife is inclined to panic.

 

The background is simple. I read elsewhere on this forum that overdrafts are covered under the Consumer Credit Act 1974 and so I wrote to First Direct at the beginning of April with a CCA request. They failed to respond and so three weeks later I wrote again as follows:

(I'll break this into sections)

[Coactum]

I last posted a letter to you on 2nd April and in that letter requested a copy of the credit agreement and other information in relation to account 11111111 & 22222222. The requested documents should be readily available as proof of your legal right to collect this account under the Consumer Credit Act 1974. Furthermore, if you were ever to take court action you would be obliged to disclose such information prior to proceedings. I am, therefore, disappointed to note that you have failed to respond to my request to supply me with a true copy of the original Consumer Credit Agreement for this account. Perhaps my request should have gone directly to First Direct in the first instance but as DG Solicitors have been communicating as your representative I would have thought that making this request through them was sufficient. However, as I am also recieving communications from Moorcroft Debt Collection plus Metropolitan Collection Services and as you have never clarified who is your representative I now write to you directly.

 

You should be aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before you enter into a default situation. In responding to my letter I expected a copy of the signed, executed credit agreement for the above account under section 77(1) of the Consumer Credit Act 1974 together with a full statement detailing all debits and credits to the account. Nothing to this effect has as yet been produced and the time limit has now expired placing the account into dispute.

 

As you are no doubt aware section 78(6) states:

 

If the creditor fails to comply with Subsection (1)

(a) He is not entitled, while the default continues, to enforce the agreement.

 

Your failure to comply has rendered this account unenforceable at law.

 

You have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, failed to send a full statement of the account and failed to provide any of the requested documentation. Consequentially any legal action you pursue will be averred as vexatious as it is most likely unlawful and would facilitate my counterclaim for unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This includes the removal of all information regarding this account from your own internal records and from my records with any credit reference agencies. Should you refuse to comply, you must within twenty one days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

Please note that I do not regard it as sufficient to simply state that you have a ‘legal right’ to process the aforementioned data. You must outline your reasoning in this matter and state upon which legislation this reasoning depends. If you not respond within the twenty one days it will be taken for granted that you have complied with this request.

 

You should also be aware that a creditor is not permitted to take any action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

• You may not demand any payment on the account, nor am I obliged to offer any payment to you.

• You may not add further interest or any charges to the account.

• You may not pass the account to a third party.

• You may not register any information in respect of the account with any credit reference agency.

• You may not issue a default notice related to the account.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

 

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

Despite my letter regarding any communication from your company, which stated that I require all communications in writing, telephone calls continue either from you or agents claiming to be appointed by you. Such behaviour constitutes harassment; the letters stated quite clearly to you that I require all communications in writing for future use. Do not telephone me again and remove any telephone numbers you hold for me from your systems.

 

Your telephone calls are in breach of the Office of Fair Trading guidelines. If you continue with them after the receipt of this letter an official complaint, together with a log recording the times and frequency of the calls will be passed both to that office and to the Trading Standards office. For your information note that all telephone calls will be recorded.

 

If you continue with this type of debt collection I will escalate my complaint to the relevant authority because this method is contrary to the ‘Administration of Justice Act 1970’ in that it is intended to cause alarm and distress to the recipient. Your methods will not be tolerated. This will be relevant to questions of your fitness to hold a licence under the Consumer Credit Act, whether or not it results in a prosecution. Furthermore, continued telephone calls after the receipt of a request not to call may constitute a criminal offence under Section 127 of the Communications Act 2003.

 

I would appreciate your due diligence in this matter and look forward to hearing from you in writing within the aforementioned time limits.

[Coactum]

They relied on 30th April with what appears to be a standard letter as follows:

 

Thank you for your letter dated 21 April regarding the above accounts.

 

Section 70(1) of the Consumer Credit Act 1974 requires us to provide “...a copy of the executed agreement (if any)...”. Regutaltion 3(2) of the Consumer Credit Act (Cancellation Notices and Copies of Documents) Regulations 1983 allows that certain items may be omitted from such copies, including the signature box and signature.

 

Therefore, the copy of the executed agreement we must supply is a copy but need not be a photocopy of the signed agreement. Regulation 7 of those regulations also requires us to provide a copy of the executed agreement, as varied, where there is a power to vary the agreement, which again is the case with the card agreement.

 

We therefore enclose an up to date copy of the terms and conditions applicable to the account, a copy of the latest variation notice issued in respect of the account and a blank copy of the agreement form. The agreement form contains the original terms and conditions that you accepted when you entered into the agreement. Clause 6 gives the Bank the right to vary the terms and conditions. The variation notice shows that the terms have been varied and therefore in accordance with the legislation the up to date terms and conditions are the appropriate information to produce.

 

As you failed to maintain the minimum repayment of 3% (minimum £5) of the outstanding statement balance by the date failing 25 days after the statement date, Final Demand was issued on 27 November 2007. Thereafter, the outstanding balance of the gold card was amalgamated onto 00000000 to accommodate the transfer to our Recovery Agents on 8 January 2008. A signed statement is enclosed to highlight the transfer. Another statement is enclosed to show the transfer of the joing Cheque Account also, together with your signed application and the relevant terms and conditions applicable at the time the account was opened.

 

If you require an up to date status of the debt, please contact our recovery agents directly at the following address:

 

Metropolitan Collection Services

Etc.,

 

Turning now to your comments regarding the attempts made to discuss your debt by telephone. There is no offence under section 127 of the Communications Act 2003 that would apply to seeking payment of a debt.

[Coactum]

The transfers simply showed the sum due on the date of the transfer circa £$.5k on the o/d an 9.5K on the c/c. The photocopy of the Current Account Application form dated 4/11/96 has no reference to the overdraft as this was not arranged until almost a decade later. Indeed when it was arranged it was done so over the phone and was intended as a short term fix at a time when I was struggling to collect what I was owed from one of my customers who later called in a receiver. Initially this was proposed to reduce by £1,000 per month, however, when my customer went burst I wrote in September 2006 requesting a reduction of £333 per month over 9 months. This was unacceptable to them and that was when matters began to break down with First Direct.

[Coactum]

On 1st May I received a letter from Midas Legal Services demanding that I contact Moorcroft immediately and that failure to do so would result In legal proceedings commencing 8/5/9. This letter referred onto to the Credit Card not the Overdraft.

 

On 7th May both my wife and I got letters from DG Solicitors again inviting me to phone and resolve the matter before action commenced.

 

I replied as follows:

I refer to your letters dated 7th May and received today 19th May. Separate letters were sent to my wife and me and both were received in the same post today. It is regrettably that the envelope is un-postmarked and so I am not sure if the delay has been in your posting or with the post office but I suspect the former. Your letter asks for a response within fourteen days from the date of your letter which will prove a challenge if the post office were indeed the culprit and take as long to deliver this response!

 

It is difficult to keep track of who exactly is representing First Direct in relation to the accounts I once held with them, indeed I wrote to them on 12th March to raise this very question and included all parties who had communicated with me on their behalf including yourselves but to date have received no reply from any of them, again including yourselves.

 

You will note from letters attached dated 19th March, 21st April and 14th May that I have been in regular communication but that my request for information has not been satisfactorily addressed.

 

Your letter specifically relates to the overdraft on account 22222222. You should be well aware overdrafts are covered under section 10 of the Consumer Credit Act which clearly states that the bank are obliged to provide a signed copy of the credit agreement. To date I have seen no such data although your client has provided a copy of my application form which is not an acceptable submission in this regard and as such the account is in dispute. Furthermore, if you were to raise court proceedings you would need to supply me with a copy of all submission you intend to place with the court and therefore if the requested documentation exists there is no reason why your client should withhold this.

 

I await a proper response from you NOT another standard letter which merely restates your clients’ demands.

[Coactum]

On 20th May another letter came in from DG Solicitors which read:

 

Thank you for your letter dated 19th May

 

Section 78 of the Consumer Credit Act 1974 (the “Act”) does not apply to current accounts. The current account is not a regulated agreement because it provides no credit. The overdraft agreement provides the credit and this sits separately from the current account agreement.

 

Credit agreements normally have to comply with Part V of the Consumer Credit Act 1974. Part V covers the form and content of the agreement, signing of agreements and duty to supply copies of unexecuted and executed agreements. However, current account overdrafts are given a specific exception from all the Part V formality requirements by section 74(1)(b) of the Act.

 

This exemption applies only when the OFT grant a Determination under section 74(3) and this was given to overdrafts on 21 December 1989.

 

The consequence of this is that there is no executed agreement for the current account overdraft and so section 78(right to demand copy of executed agreement) does not apply.

 

We trust this clarifies.

[Coactum]

This was followed by another letter the following day demanding that I communicate within 24 hours of receiving the letter by phone with individual copies to both my wife and I.

[Coactum]

The next communication came from First direct on 27th May and read:

 

Thank you for your letter dated 14 May 2009.

 

I refer to my previous correspondence dated 30 April 2009 concerning your request that we provide you with an original signed agreement for the above account (n.b. the letter failed to state which account). We have complied with the requirements of Section 78 of the Consumer Credit act. In particular, we have supplied copies compliant with Regulation 3(2)(b) of the Consumer Credit (Cancellation Notices and Copies of Documents) regulations 1983.

 

With regard to your request closing the account and refunding charges, (n.b. I made no such request) please be aware that the effect of unenforceability under CCA, and such unenforceability we have does not apply in this case, is to prevent a lender from enforcing the credit agreement in court: it does not render the credit agreement void.

 

Whilst I understand this may not be the response you were hoping to receive, I trust I have now clarified the bank’s final position on this matter

[Coactum]

This brings me to the letters recieved today 9th June but dated 3rd June from Central Debt Recovery Unit.

 

I'd like to hear from any other who have been down this path with First Direct and listen to your suggestions on what I need to do next.

 

 

For the avoidance of doubt I'm not in a position to reach an agreement with them at present. I've had various agreements with them in the past. Initially i updated them every quarter with a prediction on what I expected to be able to pay in the months ahead and each time I contacted them to amend the payment they would only accept more that had previously been offered. In the end I ignored them and simply wrote each month stating that in accordance with OFT Guidelines on dealing with arrears I looked at what was left over and apportioned among my unsecured creditors. At this point in time my outlays exceed my income and so there is nothing left to give!

[Coactum]

I should have added that the debt has reduced. Since December 07 the Overdraft has come down by £668 despite First Direct continuing to apply a modest amount of interest.

 

The Gold card has reduced by only £272 despite a far larger monthly payment because a higher rate of interest is being applied to it.

 

I would have thought that such action was showing that when I have funds that I am making a payment. Perhaps this is why they are trying every possible avenue to get me to restore some sort of payment.

[Coactum]

At 08:26 today I received a phone call (a 1471 later revealed the number to be 0161 475 2875). The called claimed to be phoning from the Moorcroft group and wanted me to verify my identity before proceeding further. I expressed, as I have done many times before, that they have this back to front. It is me who needs to verify their identity, they after all know who they are phoning, it could be anyone calling me.

 

I know who Moorcroft are and the last letter from their “Home Collections Division” that I have from them is dated 15/05/2009 and headed “Discount Offer”. It proceeded to say that a doorstep visit would be necessary if I would not contact them and reach an amicable agreement etc., etc.

 

Why these people should think that I have several grand tucked up my sleeve is bewildering. Furthermore, why they think that I will in some way be intimidated to settling, assuming I could, just to avoid a doorstep visit is just plain bonkers.

[Coactum]

What does this nonesense mean? Two letters arrived today; one for my wife and another for me, both from Central Debt Recovery Unit and both with the same content. It reads:

 

WE CONFIRM THAT WE WILL BE CALLING YOU

on: Saturday

between:8:00 am and 9:00 pm

 

If you do not wish us to call you please call us on the above numbers.

 

I'm guessing here but I think the letter is intended to look like someone will be "paying us a visit" and that somehow this intent of the letter is to intimidate us into responding, whereas what I think it really means is that they plan to telephone that day. So, why send a letter! They usually phone regardless.

[Coactum]

Well I stayed in all day Saturday and worked on the garden. I even posed a note on the front door bell stating that I was in the rear garden at one stage, but only my father-in-law and a friend dropped by. I had no missed phone calls on my home or mobile and no messages left on my answering machine. Can you imagine how frustrating it was to be pensively waiting all day to hear what CDR had to say only to be let down this way?

[Coactum]

Both my wife and I got letters from Central Debt Recovery Unit today in relation to the overdraft. It offered a 30% reduction if settled within 14 days and if we were unable to settle then to pay £50 monthly reviewable at their discretion.

 

What brought me to this forum in the first instance was the inflexibility of creditors when such reviews were to take place. At this point in time I cannot afford £50, which incidentally was what I had previously agreed to pay to reduce the overdraft, and I know full well that in time they will endeavour to increase whatever amount I pay.

 

What I find almost amusing is that the letter states that whilst this debt remains outstanding I am unlikely to obtain further credit, so, where on earth do they think I’m going to get the funds to settle in full even with the 30% discount?

 

The bottom line is do I regard this offer as a sign of weakness on their part? If so, what response should I take?

[cfs_too]

On 20th May another letter came in from DG Solicitors which read:

 

Thank you for your letter dated 19th May

 

Section 78 of the Consumer Credit Act 1974 (the “Act”) does not apply to current accounts. The current account is not a regulated agreement because it provides no credit. The overdraft agreement provides the credit and this sits separately from the current account agreement.

 

Credit agreements normally have to comply with Part V of the Consumer Credit Act 1974. Part V covers the form and content of the agreement, signing of agreements and duty to supply copies of unexecuted and executed agreements. However, current account overdrafts are given a specific exception from all the Part V formality requirements by section 74(1)(b) of the Act.

 

This exemption applies only when the OFT grant a Determination under section 74(3) and this was given to overdrafts on 21 December 1989.

 

The consequence of this is that there is no executed agreement for the current account overdraft and so section 78(right to demand copy of executed agreement) does not apply.

 

We trust this clarifies.

 

Hi,

I am in exactly the same position, they put quite a high value of my CC (1000's) into my overdraft which has a limit of £500. I am in the process of complaining that this should not be allowed as my o/d limit was only £500, and is poor practice for a company to follow such procedures.

 

I appreciate that this thread was a while ago, but I have also read that O/D's are covered by Section 78 of the Consumer Credit Act 1974 (the “Act”) and therefore you should receive a copy of your CCA.

 

I am also disputing this at the moment, and preparing a complaint through the FOS.

 

I think there was a recent law change for new o/d's. It would be interesting if anybody knew that facts on od's and cca's.

 

Have you heard anymore in regards to CCA agreement from FD?

[Coactum]

I have heard nothing new but I am aware that they have placed a default against me for both the O/D and Card which I've challenged on the basis that in the absence of a valid agreement the sums claimed are unregulated and therefore you cannot mark a default against them.

[Coactum]

Today I have a letter from Direct Legal & Collections which reads:

 

"You have failed to respond to letters from a previous agency and we have now been instructed to obtain immediate payment of the above account"

 

Then it tells me the number to phone to make my full payment and advises that if I fail to do so legal action will commence.

 

I wonder why these folks think that their letter is going to be any more effective than the previous company's letters?

[Coactum]

Latest letters today from Central debt Recovery Unit individually addresses to my wife and me offering a 20% discount for immediate settlement. Strange they should think that because we declined their 30% offer that we will now accept a 20%?

[Coactum]

Received a letter from First Direct acknowledging receipt of my last letter and stating that they note my comments but do not agree with my view that the debt is unenforceable and as such normal collection activity will continue.

 

I find it strange that in all the points I raised in a two page letter which expressed many reasons why I considered the account to be in dispute that this is all they have to say.

[Coactum]

Who on earth are Hillesden Securities? I've just had a letter from them thanking me for my recent letter to HSBC and confirming that my account is on hold pending a response from their client.

 

They appear to be Data Controllers and I did indeed write to First Direct regarding what I considered to be erroneousely recorded data on my credit file and it would seem this has been passed from First Direct (HSBC) To Hillesden, so why on earth do Hillesden need to report back to their client, surely they would have given instruction when passing on the communication.

[littlebert8]

Hillisden are debt buyers. I'm dealing with them regarding a MBNA debt the purchased - poor mugs didn't check to see if there was an enforceable agreement. To be fair to them, they haven't harassed me since I told them of this - they just keep sending me very polite letters updating me on their fruitless search. I think the letters are issued by an agency on Hillisden letterheads, because they are often confused about who owns the account - even thought they were quite clear in the beginning that they had purchased it!

 

Looks as though your HSBC debt has been sold to Hillisden.

 

HSBC have done the same to me regarding my FD Gold Card and overdraft. They sent me what I consider to be an unenforceable CCA for the Gold Card last year and I placed the account in dispute. I should have dealt with the overdraft, but suffice to say I didn't. They appear to have rolled the Card debt into the overdraft because I have now received a pre-legal letter from DG demanding payment if the combined amount, but only quoting the Overdraft ref.

 

I'm going to SAR HSBC for all the accounts I hold with them. I reckon there are enough penalty charges to offset everything I owed on the overdraft and the CC is still unenforceable. Currently looking for suitable letter to make sure DG don't sue - I can defend the CC debt, but the overdraft is a different story.

[Coactum]

Definately not been sold to Hillsden littlebert8. I seem to have gone round a full circle with First Directs debt collectors. A long time ago it was Moorcroft Debt Recovery Limited but since I have had a vast number including but not limited to:

 

Central Debt Recovery, DG Solicitors, Direct Legal & Collections, Hillesden Securities, Metropolitan Collection Services Limited, Midas Legal Services and of course Moorcroft Debt Recovery Limited

 

All have made their attempts and all have been sent away empty handed. Now it seems it is back to Moorcroft. I got a letter from them on Saturday morning and replied immediately to First Direct copying in Moorcroft in the response. However, now the phone calls have started again and despite my refusal to confirm my identity they insisted in rabbiting on and denied receipt of my letter. I ended up hanging up the phone. I should add that this was at 08:50 this morning and that I had been up working ‘till 4am so I was not too pleased.

[Coactum]

Getting more than a little p’d off, especially with the early morning calls. I'm presently getting daily phone calls from both Moorcroft and DLC both claiming to represent HSBC. This morning I had a silent call at 8am and 1471 showed this to be Moorcroft.

 

I had a letter from Moorcroft last week thanking me for my letter but asking me to make my proposal for repayment. So, I replied to First Direct and copied Moorcroft in once again reiterating my denial of their claim and asking why on earth they thought I'd pay something that is in dispute.

 

The idiots that call try the usual "for security" stuff and I stop them dead in their tracks. In particular DCL, who i explained that using an acronym gave even less meaning to who they are and why they were calling. When I insisted that the caller properly identify herself she failed to do so and the call ended.

[Harrassed09]

Battling FD myself Interesting my CC passed to metropolitan ( no cca) yet my o/d passed to Moorcroft???

 

Have moorcroft purchased the debt as i know metropolitan are 'in house' at hsbc

 

Metropolitan have 'stayed' action until I make a complaint to the FOS?? I take it the FOS carry a great deal of clout? (not)?

 

ANy one else had this happen? What should I anticipate next once I resend the 'account in dispute' letter?

 

Would Moorcroft accept a reduced settlement? Do we know how much they pay for the debts? I have heard it is likely only 10%?? this would mean FD can write off the debt and claim full tax relieft on the balance?

 

Any thoughts out there?

[Coactum]

O/D in join names with my wife and CC in my name only. A range of companies have tried to extract payment from me as you will see above. Each is being treated differently which is understandable as my wife is only attached to one.