First Direct & Final Demand

[car2403]

What they've sent you doesn't comply with Part VII of the CCA 1974, so any Default/Termination is unlawful.

 

Follow the advice given, as you can't query this without requesting a copy of the agreement. Templates are available in the library if you need them.

[car2403]

Well, "account opening forms" sounds like an application form to me!

 

Can you scan/post up what they've sent you? (Removing personal information of course)

 

They are wrong about the bank account - read here;

 

http://www.consumeractiongroup.co.uk/forum/general-debt/31515-ccas-overdrafts.html?highlight=overdrafts

 

then this post;

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/125120-wescot-credit-services-advice.html#post1307682

[car2403]

The account forms are application forms and bear no relation to the overdraft agreement. Without any documentation as outlined in the OFT Determination, they can't rely on that to say they don't need to comply with the CCA - the application forms don't contain the prescribed terms, (credit limit, repayments and interest rates) so the overdraft will be unenforceable as a result under s.127(3) CCA 1974. (When will these Banks learn how to comply?)

 

The loan agreements look ok as it has the prescribed terms. (above) The APR isn't right, but works out at 6.67%, which is within the tolerance allowed under the regulations;

 

Permissible tolerances in disclosure of the APR

1A. For the purposes of these Regulations, it shall be sufficient compliance with the requirement to show the APR if there is included in the document -

 

(1) a rate which exceed the APR by not more than one; or

 

(2) a rate which falls short of the APR by not more than 0.1; or

 

(3) in a case to which either of paragraphs 2 or 3 below applies, a rate determined in accordance with the paragraph or such of them as apply to that case.".

 

What is the date of your signature? If it's after the date printed on the agreement, that could make this a prospective agreement, so is void under s.59; (the fact the signature is printed and predated adds weight to this argument)

 

59.—(1) An agreement is void if, and to the extent that, it purports to bind a person to

enter as debtor or hirer into a prospective regulated agreement

 

IMHO, this agreement is properly executed. If you want to challenge it, you will have to do so based on the fact they can't provide any evidence of the original Default Notice, so can't prove that they have Defaulted the account correctly.

 

Also, do you know if they have applied charges to the Loan account? This would invalidate any Default Notice, unless they can prove their charges are lawful, (which they can't) as the Default amount includes those charges;

 

Failure of a Default Notice or a Termination Notice to be accurate not only invalidates such Notice, (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, (Wilson v First County Trust, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but would also give the Claimant a claim for damages in the sum of £1,000. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

[car2403]

There won't be any templates for this, as each case has it's own specific merits and won't fit a template as such.

 

I'd avoid discussing the enforceability of the loan agreement, as you don't want to point out the obvious - plus this could help them if they decide to enforce against you later.

 

Stick to the Default Notice issue, IMHO, so start by writing back telling them they do have an obligation to prove they have Defaulted you within the prescribed process of the Act - if they haven't, suggest that they remove the Default from your credit file, as unsubstantiated.