can you cca request for overdrafts??? / 1st credit chasing debt in IVA

[supasta1]

Hi all, dont want to sound stupid but can you cca request a bank overdraft or is that something completely different??? i've read threads about loans and catalogues etc but not about overdrafts?? a simple yes or no would suffice thank you....

[mrsc]

I don't think that overdrafts are covered by the CCA,but i could be wrong,I am sure someone more in the know will answer the query.

[slick132]

Hi SS1,

 

You cannot make a CCA request for an o/d in the same way as credit cards, catalogue debts, etc.

 

You can, however, reclaim unlawful charges that the bank applies to the account.

 

Slick

[rory32]

Overdrafts have part V (form and content) exemptions from the Act. The copy of the agreement would simply be a letter from the bank stating the amount of credit, the APR, charges and cancellation rights (theirs not yours). There is no requirement for the agreement to be signed by you. So while you can send them a CCA request, as Slick has pointed out, the copy of the agreement would be a lot looser than in other credit agreements.

[Kcat]

Hi,

 

What about a joint bank account that has 'joint and several Liability' does there have to be some document with both signatures on ?.

[rory32]

No the same rules apply as a normal overdraft facility i.e. the copy of the agreement would just be a letter from the bank. Joint liability just means they can pursue either one of you. There would however need to be a copy of the agreement signed by both of you if for instance it was a loan or a credit card but not for an overdraft.

[Kcat]

No the same rules apply as a normal overdraft facility i.e. the copy of the agreement would just be a letter from the bank. Joint liability just means they can pursue either one of you. There would however need to be a copy of the agreement signed by both of you if for instance it was a loan or a credit card but not for an overdraft.

 

So there's no point in CCA them then for a joint overdraft on an account the dates back to 1987 ?.

[slick132]

Hi Kcat,

 

There's no point in sending a CCA request because this is a bank a/c (which happens to be overdrawn). The age of the a/c and the fact that it's a joint a/c are irrelevant.

 

You could reclaim any unlawful penalty chgs applied to the a/c over the last 6 years but you are responsible individually and/or jointly for any debt if the a/c is o/drawn.

[excel1]

Soory for the highjack,

but what about when the overdraft was let to go from say £10000 agreed and in writing to £28550? has some law been broken about responsible lending etc?

[Kcat]

I was under the impression that for an agreement to be 'Joint and Several' it must be signed by both parties. Why wouldn't this apply to an overdraft ?.

 

The bank account had an agreed overdraft not just an account that has gone overdrawn, does this make a difference ?.

 

Also I keep reading about an amendment to the CCA in 1990 that refers to Overdrafts as this account was openned in 1987 does this make any difference ?.

 

Thanks.

[slick132]

Hi Excel,

 

Surely the responsibility lies with the account holder. If someone spends £28,500 which they don't have, they are borrowing from the bank and will be responsible for paying it back.

 

I agree that the bank are not lending responsibly, letting an unauthorised o/d rise to 3 times the agreed limit. But it's the accountholder who spent the money and remains responsible for it's repayment.

[timewarp]

Last year Sequenci posted this which appears to confirm that overdrafts are part of CCA, I won a case last year against another bank on separate credit card and overdraft accounts:

 

 

"you guys need some section 10 in your lives, overdrafts are running-account credit

 

10 Running-account credit and fixed-sum credit

 

(1) For the purposes of this Act—

(a) running-account credit is a facility under a personal [consumer] credit agreement whereby the debtor is enabled to receive from time to time (whether in his own person, or by another person) from the creditor or a third party cash, goods and services (or any of them) to an amount or value such that, taking into account payments made by or to the credit of the debtor, the credit limit (if any) is not at any time exceeded; and

(b) fixed-sum credit is any other facility under a personal [consumer] credit agreement whereby the debtor is enabled to receive credit (whether in one amount or by instalments).

 

 

 

(2) In relation to running-account credit, “credit limit” means, as respects any period, the maximum debit balance which, under the credit agreement, is allowed to stand on the account during that period, disregarding any term of the agreement allowing that maximum to be exceeded merely temporarily.

(3) For the purposes of section 8(2) [paragraph (a) of section 16B(1)], running-account credit shall be taken not to exceed the amount specified in that subsection [paragraph] (“the specified amount”) if—

(a) the credit limit does not exceed the specified amount; or

(b) whether or not there is a credit limit, and if there is, notwithstanding that it exceeds the specified amount,—

(i) the debtor is not enabled to draw at any one time an amount which, so far as (having regard to section 9(4)) it represents credit, exceeds the specified amount, or

(ii) the agreement provides that, if the debit balance rises above a given amount (not exceeding the specified amount), the rate of the total charge for credit increases or any other condition favouring the creditor or his associate comes into operation, or

(iii) at the time the agreement is made it is probable, having regard to the terms of the agreement and any other relevant considerations, that the debit balance will not at any time rise above the specified amount."

[Kcat]

Rory32,

In the original thread by Sequenci (as posted by timewarp above) you go on to agree with this statement. Have things changed?.

Think I'm getting even more confused whether overdrafts are covered or not.

[rory32]

Have things changed?.

 

No. An overdraft is running account credit but the agreement is different for overdrafts than for other credit agreements. Section 74 of the Act allows for certain types of agreement to be excluded from part V (form and content) where the OFT has so determined. This detemination (the Determination) regarding overdrafts under section 74 was made on 21 December 1989 subject to three conditions.

 

(a) That the creditor shall have informed in writing the OFT of his general intention to enter into agreements to which the Determination will apply;

 

(b) that...the debtor shall be informed at the time or before the agreement is concluded

- of the credit limit, if any;

- of the annual rate of interest and charges applicable from the time the agreement is concluded and the conditions under which these may be amended;

- of the procedure for terminating the agreement

and this information shall be confirmed in writing.

 

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing no later than 7 days after that 3 month period of the annual rate of interest and charges applicable.

[Kcat]

What about accounts opened before 21 Dec 1989 ?.

[car2403]

Send a CCA request - it's up to the bank to argue they have the benefit of the OFT determination under s.74 and don't have to comply fully with the request.

 

Why do their work for them and not request it in the first place?

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/110184-car2403-barclays-bank-default.html

[rory32]

What about accounts opened before 21 Dec 1989 ?.

Then sections 82(2) and 82(4) of the Act would apply.

it's up to the bank to argue they have the benefit of the OFT determination under s.74 and don't have to comply fully with the request.

No one said the bank still don't have to comply. It is the nature of the credit agreement that is different.

[Kcat]

So have I got this correct. If my account was opened in 1987 then they will have to produce a signed CCA?.

Thanks.

[rory32]

If my account was opened in 1987 then they will have to produce a signed CCA?.

 

No. Read sections 82(2) and 82(4) of the Act.

[slick132]

The legislation is here if you want to read it - http://www.passprotect.studio400.me.uk/Consumer_Credit_Act_1974.PDF

[Kcat]

The legislation is here if you want to read it - http://www.passprotect.studio400.me.uk/Consumer_Credit_Act_1974.PDF

 

Thanks for this ( I think !)

 

So, my original agreement would simply have been modified by them sending me something later ?. Doesn't this have to reflect the original and the new agreement though ?.

 

Sorry for asking silly questions but I'm really not sure what I should be doing. The letter from the DCA has now arrived and is asking me to call them to arrange payment terms - Do I call or should I send a CCA request ???. They also state that I can ask for a copy, under the DPA, of the personal info they are holding on me..for a fee. Should I do this ?

My partner had all sorts of hassle from DCA's a few years back before the IVA was put in place - I think the actions of the DCA's actually made the IVA the best way forward for them. Any suggestions of how to approach this would be very welcome.

 

Thanks.

[slick132]

Hi Kcat,

 

Sorry but I'm out of my depth on the technicalities of how the bank should respond to a CCA request to show the o/d is enforceable. However, I do know that if Rory thought there was anything to be gained by you sending a CCA request, he would have said so.

 

Why not send a CCA request anyway - as Car2403 said earlier, let the bank confirm how they see their position on this.

 

As regards the DCA, don't call them, EVER. If they call you, tell them you won't discuss on the phone and they must write to you - then hang up.

 

If you don't have the nec'y bank state's to quantify how much you've been chgd in unlawful penalties, send the bank an SAR as well.

 

If you have the state's, check what you think you can reclaim and come back to confirm how the back chgs compare to the total o/d,

[Kcat]

Well, I sent my CCA request off and they received it 2 weeks ago. They did acknowledge my request and said they would shortly past it back to their client but the process may take 6-8 weeks. They go on to say that on receipt the copy agreement they expect me to contact their office to arrange payment.

Now this week I've received another letter thanking me for my recent communication and asking me to phone then today I've received a letter from their solicitors threatening the various legel options they may choose to follow.

What should I do next ?. Should I just wait for the copy agreement to arrive or should I be writing to them again ?.

 

Thanks.

[car2403]

If they haven't replied to your CCA request, they are in default under the Act and cannot seek enforcement of the agreement while they are in Court. I suggest you write to them reminding them of this and tell them if they seek enforcement you will vigourously defend on the basis they are in default and do not have an enforceable agreement to rely on.

 

You can include this in your letter, to stop them contacting you again;

 

I refer to your recent letter dated XX/XX/XXXX.

 

You will see from your files that this account is “in dispute” and you have failed to reply to my s.77/s.78 Consumer Credit Act 1974 request dated XX/XX/XXXX.

 

I am writing to inform you that this dispute still stands and has not been resolved by your company.

 

 

 

 

 

As this account is in dispute and you were aware of this and are continuing to carry out collection activity, I now feel that you are in breach of your obligations under;

§

The Office of Fair Tradings Collection Guidelines – s2.8;

o

“i. failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued”

o

“k. not ceasing collection activity whilst investigating a reasonably queried or disputed debt.”

§

Your Consumer Credit License

 

 

 

 

 

As such, I must ask you to take notice that you must cease all collection activity with immediate effect. You have failed to produce a properly executed credit agreement and as such I dispute the entire balance of the alleged debt is unenforceable. As there is no agreement between us, you also do not have permission to continue to contact me regarding this account, either by post or by personal contact, be that by telephone or visits to my property. In fact, OFT rules and regulations clearly state that you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you. There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives, to visit me at my property and if you persist in sending "doorstep callers" to my home, you will be reported for harassment and be liable for damages for a tort of trespass. You would also be liable for conspiring in a tort of trespass by acting in defiance of my instructions and sending someone to visit me nevertheless. Should it be necessary, I will obtain an injunction from the Court.

 

 

I also deem any further collection activity, of any nature that involves contacting me in relation to this account, an act of personal harassment, for the reasons outlined in this letter. Please ensure that your system is updated to reflect this, as I will bring any further letters or phone calls to the attention of the Police, to whom I will make a formal statement regarding your conduct given I have already warned you your behaviour causes me to feel harassed.

 

I am of the view that your continued harassment of me puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

 

If you continue to harass me by calling me, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Be advised that any further telephone calls from your company will be recorded and used as evidence in any further formal complaint.

 

If you wish to resolve my complaint, as has been suggested in your recent letters to me, you must supply the documentation previously requested to substantiate your claims against me under the alleged agreement. Failure to do so will result in my ignoring any further letters from you and the actions outlined herein being taken in complaint against you. I will not correspond further with you regarding this issue unless you can fully substantiate your claim as I have outlined.

 

Yours faithfully

 

Basically, in a nutshell;

 

"put up or shut up!"

[slick132]

Hi Kcat,

 

As Car says, they are (technically) in default and are just trying it on. Don't be intimidated by their empty threats.