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Everything posted by robcag

  1. Interesting discussion on Restriction K COs here (long thread).
  2. Never say never, but all quiet ATM.As you know if you've read my Defence (both SJ and Amended Defence), part of the argument I put forward was that the overdraft came about with the tacit agreement of NW; i.e. by NW allowing me to overdraw on my account from time to time and for me to pay it back, and me gradually increasing the amount borrowed.As I see it, on the 'balance of probabilities' that is a perfectly feasible argument. It seems the judge at the Summary Judgment hearing was willing to weigh that possibility against NWs argument that Facility Letters would have been automatically sent.
  3. A bit late, but an update to the DCA question; I just ignored it and heard nothing further. AFAIK (I only check Noddle - i.e. CallCredit), no default was lodged by NW with the CRAs.
  4. Thanks for your comment DB, but I have to admit my knowledge is pretty limited. That probably goes for a lot of people on here, but two (or many!) heads are better than one, and the combined efforts of CAGgers more often than not gets results. Rob
  5. Perhaps you are a bit hard of hearing and would find a conference hearing difficult, if you get my drift. Rob
  6. Apologies if I've given the impression of mis-understanding default matters. What I've done is used the term (too) loosely. All I was trying to do was give another example of where a second DN could be lawfully issued as that is what the main thrust of the thread seemed (to me) to be about. Rob
  7. Whilst I would agree that it is always possible that an agreement could be found I don't think it is very likely given NWs track record. A reconstituted agreement could only satisfy a s77-78 request, they are perfectly aware that it wouldn't do them any good in court (if they were silly enough to go to court with one). Upon receipt of your F&F offer the ball will be in their court, if they choose to hit it out that's their choice. Rob
  8. Or the default situation in the original DN was rectified by paying the arrears demanded within the specified time. Rob
  9. Firstly, IMHO, it is highly unlikely the application and separate 'General Conditions' are linked, because; They have taken the trouble to describe where the sections referred to in section 8 (signature area) of the application can be found on the form. i.e. they refer to sections of the application headed "Your Information" and "Keeping You Informed" and tell you exactly where to find them on the sheet. They also say " ... Sign it only if you want to be legally bound by its terms."; but they don't bother to say where those terms are so it can be assumed that they can only be referring to the contents of that application sheet. Why did they not say "... terms contained within the section headed 'General Conditions' "? If the documents are not linked then I'd say several prescribed terms are missing. Referring to the prescribed terms, I quote from elsewhere; I think you are right that even if they argue the 2 documents are linked, they have failed to state the interest rate. I think they have also failed to state the credit limit or how it will be determined. Rob
  10. I've not had a proper examination of those terms, just a quick look so I won't comment on their contents. However, these must be an exact copy of the terms, if any, which were presented to your friend with the application at the time it was signed in order that it can be argued that they form part of the alleged agreement. Does she remember if that was so, or does she have a copy of the original tucked away somewhere? Rob
  11. I agree with citizenB, there should be more than that, and there's no reference to terms overleaf/attached/enclosed. Looks unenforceable to me. Rob
  12. I just read your PoC - they seem somewhat generalised and vague; Although they haven't mentioned anything about agreements but have referred to the 2 sums as 'accounts', it is a fact that the loan is subject to an agreement in it's own right, and the 'agreement' for the overdraft (should) be in the form of the 'Facility Letters'. So at a guess you could ask for those under CPR 31.14 but you will probably need to ask for the 'Diary Event History' under CPR 18. I don't think it would do any harm to ask for the agreement and letters under the same CPR 18 request to give them less wriggle room. Maybe Andy would be able to offer more learned advice! Rob
  13. Probably not relevant here if you can show the debt is SB as soon as you think, but do you still have the envelope the DN was delivered in as there is a slim chance that they have not allowed sufficient time for service? This would only be if they used 2nd class post and the postmark shows a date of 17th Oct or later. Rob
  14. PPS The dates that the loan and overdraft commenced will also be relevant. The agreement cut-off date for a Defence using s127(3) is April 6 2007. Rob
  15. PS As you've received a court claim, you should include a request for the 'Facility Letters' as part of your CPR 31.14 and/or CPR 18 request. You should also ask for a complete copy of the 'Diary Event History' which would show you if/when said letters were issued. Rob
  16. Overdrafts are subject to the CCA 1974. They are exempt from Part V of the CCA 1974 - signing of agreements - BUT only if the creditor can show that it has complied with the conditions set out in the determination made by the Director of Fair Trading, effective 1st February 1990. One of the conditions is that the creditor should have issued to the debtor so called 'Facility Letters' setting out the terms of the overdraft. So whilst you're unlikely to get anywhere making a ss 77-79 CCA request, what you can do is SAR them and specify that you want copies of any and all 'Facility Letters'. See this thread for an idea of what I'm referring to; http://www.consumeractiongroup.co.uk/forum/showthread.php?31515 And to show that you can win an overdraft claim here is a thread; http://www.consumeractiongroup.co.uk/forum/showthread.php?241052-Irwin-Mitchell-NastyWest-overdraft-claim-***-Won-With-Costs*** I think my Amended Defence is at post #44 of that thread. Other CAGgers have also been successful. Rob
  17. If I lost my wallet containing £1000 in the street and someone returned it, I'd feel grateful. I know my wallet is my property, but the person who found it could easily have kept it (or it could have even been swept up by a street cleaning machine). I guess I'd even be grateful if it was returned containing only £500. Rob
  18. Agreed, but when they're not holding any aces in their hand .... Beggars can't be choosers springs to mind! Rob
  19. I was just trying to help LTK to make a decision regarding what to do if the creditor refuses an offer. I think the creditor ought to think themselves lucky they are being offered anything in the circumstances, and should gratefully accept anything they are offered without complaining. Rob
  20. I know debt avoidance has been discussed but I don't have such qualms given the circumstances. I started off trying to pay reasonable and affordable pro rata amounts but gradually changed my stance because of the attitude and unreasonable behaviour of most of my creditors and I'm now glad I did. Whilst some of them may appear to act reasonably to start with, IME this doesn't last long. Many CAGgers will have seen this before; Consider this statement in paragraph 26 of Sir Andrew Morrits Judgment in the Court of Appeal in the Wilson & FCT case ; "... In effect, the creditor – by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms – must (in the light of the provisions in sections 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid; ..." http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2001/633.html&query=title+(+Wilson+)+and+title+(+v+)+and+title+(+First+)+and+title+(+County+)+and+title+(+Trust+)&method=boolean Rob
  21. Sorry, but I disagree with that statement BB I've had a court claim issued against me by NastyWest via Irwin Mitchell solicitors regarding an overdraft, and I'm also aware of other CAGgers who it has happened to. Here's my thread about the overdraft case; http://www.consumeractiongroup.co.uk/forum/showthread.php?241052-Irwin-Mitchell-NastyWest-overdraft-claim-***-Won-With-Costs*** As you will see, although they issued the claim they didn't succeed in winning it! Rob
  22. It won't provided you don't do anything silly by adding anything to the letter, e.g. "I refer to the debt which I owe you". I'm sure you're not going to do anything like that! Rob
  23. Probably best to get some carbon-paper then to make sure you can retain a copy of the letter for your records. Easier to type then get multiple copies printed I would have thought! Rob
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