Overdrafts and sec 77-79 requests

[un1boy]

Hello,

 

I want to discuss the situation regarding overdrafts and the CCA. I am aware that the OFT determination gives banks an exemption from part V the act, whcich includes section 77-79.

 

To satisfy their obligations under the deermination the following must be adhered to:

Are all bank overdrafts exempt?

 

The s74 determination in respect of bank overdrafts (see Q1.4) applies subject to the following conditions:

• the creditor must inform the OFT in writing of his general intention to enter into such agreements;

• the debtor must be informed, at or before the time an agreement is concluded, of the following:

o the credit limit (if any)

o the annual rate of interest and any charges applicable, and the conditions under which these may be varied

o the procedure for terminating the agreement;

• the above information must be confirmed in writing.

 

Bear in mind that the banks have to apply to the OFT in order to be covered by the Determination, confirming that they will provide the information above.

 

Would this mean that if they have not, or cannot prove they have, complied with it that the determination is exempt and therefore part V of the act would apply to overdradfts and in turn meaning that they would have to provide a resposne to a section 77-79 request in the normal way?

 

I would really appreciate everyone's comments regarding this.

[tomterm8]

un1boy, every bank in the country has claimed the exemption; every year or so the government produces a regulation adding new people on the list. A Bank would be a fool not to apply for the exemption.

[un1boy]

Hi tom,

 

Thanks for your post. I do understand that, but what I am trying to understand is that if they do not provide the information required by the determination (ie not complying with its requirements) then could we argue that it is void and that therefore part V of the act does cover the overdraft?

[tomterm8]

of course.

 

But how yould you prove they hadn't sent you a letter? Especially as this info is on every statement, and it will be in the terms and conditions of the account.

[un1boy]

My reason is that the OFT say:

 

 

The s74 determination in respect of bank overdrafts (see Q1.4) applies subject to the following conditions:

• the creditor must inform the OFT in writing of his general intention to enter into such agreements;

• the debtor must be informed, at or before the time an agreement is concluded, of the following:

o the credit limit (if any)

o the annual rate of interest and any charges applicable, and the conditions under which these may be varied

o the procedure for terminating the agreement;

• the above information must be confirmed in writing.

 

Therefore, if the conditions have not been been met then the determination is not valid?

[un1boy]

of course.

 

But how yould you prove they hadn't sent you a letter? Especially as this info is on every statement, and it will be in the terms and conditions of the account.

 

Great.

 

Well, when I did a DPA they can't provide an T&C's or an agreement or a letter for the Overdraft. They keep telling me that they have an exemption under the determination, but they cant provide anything they are obligated to.

[tomterm8]

But, un1boy, the bank will say they did meet the requirement. they sent you a letter detailing the info, when you opened the account. How do you prove otherwise? Basically, you can't. And a judge will take their side.

[un1boy]

But, un1boy, the bank will say they did meet the requirement. they sent you a letter detailing the info, when you opened the account. How do you prove otherwise? Basically, you can't. And a judge will take their side.

 

Hmmm, I guess.

 

That's the bloody trouble with the civil courts - the balance of probability as opposed to beyond reasonable doubt.

 

The determination says the information must be supplied "at the time or before the time an agreement is concluded"

 

Would it not be their responsibility to prove that the complied with this, as it is far more difficult to prove a negative than a positive.

[tomterm8]

In my experience*, all they do is blater on about their procedures, and say it "would have happened" etc.

 

They should have to prove it, but I am not aware of any case that has gone that far, and I think the judge will be very sympathetic to the creditor.

 

* with other type of cases, e.g. PPI

[un1boy]

But in terms of section 78 requests, they must supply the docs to prove they complied - how is that any different to proving they complied with the determinaiton?

[un1boy]

In my experience*, all they do is blater on about their procedures, and say it "would have happened" etc.

 

They should have to prove it, but I am not aware of any case that has gone that far, and I think the judge will be very sympathetic to the creditor.

 

* with other type of cases, e.g. PPI

 

I know. This is the thing though - why are they? They should be impartial for a start, looking at evidence. Just because they saud they complied, why is that enough? The Judge would not accept that if it was us saying it....

[tomterm8]

They just say it is sent to every customer in writing when they apply for the account. then they get one of their staff to confirm that as their automatic procedure. This would satisfy the balance of probabilities, IMHO. In conjunction with the fact you are not actually denying that you spent the money...

[un1boy]

Yeah, you're right.

 

What if they say they sent a letter and have it on file (but did not supply this in my FULL sar) for the first OD.

 

However, the OD changed along with the terms when they cahnged the status to a student account - they don't have this letter.

 

Would the same happen in terms of staff sayign it would, or would the judge question why they have one and not the other? ps, they also can't supply the original t&c's to confirm they were agreed to .

[tomterm8]

They would be making a rod for their own back on the DPA front, as although it won't invalidate the overdraft, they will probably be breaching the DPA SAR request, leading to damages.

[un1boy]

well that's exactly what they've done - they didn't provide it and said later that they had it.

 

also, what about my second point re them saying they have the original letter but not having a copy of the in when it changed?

[car2403]

Are these the only grounds which you're challenging the OD on, un1?

[tifo]

in the event of selling the debt on, a DCA and the bank will say there is no agreement as per s.77 - s.79 so we cannot supply anything, yet under what agreement did the bank sell my account and pass my data and the DCA bought it?

[un1boy]

Are these the only grounds which you're challenging the OD on, un1?

 

partly but mainly im challenging the default - saying that its unlawful, they dont have a copy of it or the terms and conditions saying they can process my data etc

[un1boy]

I have received confirmation that the default judgement order has been enforced in the form of a warrant of execution - looks like the Bailiffs are going in!!!

 

hehe.