Need some good advice

[NotBadJustBroke]

I guess it's best to start at the beginning. In 1994 I very stupidly sold my house and with the proceeds opened a Craft shop with my wife. I would like to say that I didn't do it blindly because I discussed everything with my Bank Manager who thought it was a good idea and found premises in a Heritage village which attracted funds from various government agencies, the Tourist Board, Princes trust and various others. We were given forecasts and promises by the people who were put in charge of running the village. Everything thing looked absolutely rosy and the wife and I looked forward to being able to work together and do something that we enjoyed. We prepared a Business plan and formed a company, bought equipment and materials and for a couple of months everything looked good. Then came the winter and it was as though we had fallen into an abyss in fact we were lucky to have two customers a day. Never mind we thought; because we had expected a downturn in the winter and looked forward to the spring of 95. Well the spring arrived and so did the problems. The various agencies pulled out, the advertising stopped, the promised coach parties didn't arrive and by May the companies finances and my mental health were in pieces. It was apparent we had lost everything.

In short I had a mental breakdown and signed on; first on the sick and then as unemployed while my wife struggled to try and keep the business alive. I was with the Midland Bank and we were buying groceries with our cheque book and paying my benefit into the bank to repay it. Then the Bank started hitting us with bank charges claiming that there was a delay between the outgoing and the cash being paid in. I soon owed them about £1900 in total and they sent me a demand for immediate payment which of course I couldn't cover.

They closed my account after I contacted them and said I couldn't pay and agreed to stop the interest and let me pay them back at £10 a month. This was handled by a company called Brittania I believe; although it changed it's name somewhere along the line. To start with they gave me a paying in book and then later a plastic card which automated the system. I have never missed a payment but about six months ago I started getting phone calls saying that they were looking for me to pay more. I explained that I couldn't as I have never managed to find full time employment since I lost the business and basically do odd jobs. Suddenly Two weeks ago I was telephoned by a company called Rockwell who said that they had bought the debt and were looking for immediate repayment of the balance which now stands at a little over £1000. I explained that I could not do it and so then they changed tack and said they wanted a bigger repayment which again I explained I wasn't in a position to do. Then there was quite a few nasty things said but it became apparent they do not know my current address because all the original arrangements were made from the business address and they think I am still on the sick rather than doing odd jobs. I did not say anything to the contrary because the guy was being really unpleasant and I was panicking a bit. They said they would write to me but of course I wont receive it. I know it's not a huge amount of money but I am finding it very hard to deal with the situation. It brings everything hurtling back about that terrible time and I literally do have a panic attack if I think about it. What should I do?

[NotBadJustBroke]

Can nobody offer any advice at all?

[rory32]

You should start the process of reclaiming the charges. Do you have all your old statements? If not you need to send a SAR to the bank to get a breakdown of the charges applied (they may very well end up owing you money). A template for the SAR is here http://www.consumeractiongroup.co.uk/forum/bank-templates-library/516-1-data-protection-act.html You also need to spend some time reading through the FAQ's here http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/

[AuntiePink]

I can't offer any legal advice but I can do emotional. Calm down! I know it feels like the end of the world but it really isn't.

 

I bet someone will log on tomorrow and advise you to send a CCA letter to find out whether anyone in that chain has a properly executed agreement in order to enforce the debt and, furthermore, I bet that no bugger has one!

 

Please, give the site some time and help will come. I promise.

[AuntiePink]

LOL! See? Rory even beat me to it.

 

Ooooh, I love this place

[robert191]

Take Auntie's advise, dont let it get you down.....I felt like sh*t today, a son in panic mode, daughter in law, who thinks I am the dregs of the earth, a granddaughter I have never seen, no money, no way home and then a load of sh*t from DCA's,

 

Then I found this site, and all of a sudden, I'm not alone anymore

 

Keep your chin up.......All the best

[NotBadJustBroke]

Thank you so much. I posted earlier today and was just about to be demoted to the second page. I know I panic but these ***** drove me to the edge of despair once and I can't bear going back there again. Rory can I claim after all this time?

[TideTurner]

It seeme to me that they're well out of time. The Midland? This was taken over by HSBC later on. Given the timescales, it appears they have sold a very old debt on to a 'hopeful' who can try and get something back from you.

 

Also, from the sounds of it, you were sold a 'dream', which would never materialise.

 

Be strong, stand up for yourself, and before you accept ANY claims against you, ask for cast iron proof of any claimed debt.

 

If you want to empower yourself, give them a two week time limit, and then start hounding them for information (dates, details etc).

 

If you find they are trying it on, ask when and from whom they got your personal information from.

 

Tide

[rory32]

The problem with reclaiing after all this time may be that the information on the account is not available. Bearing this in mind it would be worth while at the same time to dispute the account, you could do this through a CCA request to the company now dealing with the account. Basically when credit is granted in most instances there needs to be a credit agreement (in the case of the overdraft this would be a letter from the bank stating the amount of credit, the interest rate, charges and cancellation rights). The credit agreement is governed by the Consumer Credit Act, hence the term CCA request.

 

I would be very suprised if after all this time a copy of the agreement would exist. If there is no agreement the debt is not enforceable even in a court of law.

 

A template for a CCA request is here http://www.consumeractiongroup.co.uk/forum/general-debt/20758-creditors-dcas-letter-templates.html template N. I would advise that you send this via recorded delivery.

 

They have 12 working days from receipt of your request to supply a copy of the agreement after which they default on supply the agreement. Once they are in default you can legally withhold any payment on the account until a copy of the agreement is produced.

 

Please be aware that when you dispute a debt with a DCA they will in most instances send you threatening letters e.g. we may take you to court, etc. These are empty threats in nearly all instances and if you receive any such letters you should post back on here for reassurance. I appreciate that this can be a harrowing experience, but the more you know about your rights the less worried you will become.

 

Remember if there is anything you are not sure about or just need general support and reassurance please just post.

[NotBadJustBroke]

Because they have only communicated with me personally by telephone I do not have their address. They say that they have written to me and they are obviously using the business address that I had when things went wrong. Should I contact them and advise them of my present address?

[rory32]

If you use this link just enter tha companies name (second box down) and it will give you the companies registered address http://www.esd.informationcommissioner.gov.uk/esd/search.asp

[NotBadJustBroke]

The page will not load for me; maybe the server is down or busy. I will try again tomorrow. I am still not clear on whether or not I should advise them of my address? Is there anyway of doing this without letting them know where I live. I don't think I could face a visit from them right now.

[rory32]

As long as you are picking up the mail and dealing with this then, while strictly not correct, I see no reason to change the address that they consider yours (although someone may correct me on this). In an ideal world you would but it avoids the possibility of harassment. It is highly unlikely that any home visits would be made anyway as this almost never happens.

[NotBadJustBroke]

I have no access to mail sent to the previous address so it looks like I have no other option. The other thing that I wanted to pick your brains about is the CCA request. As this debt is best described as an unauthorised overdraft made up of mostly bank charges would the rules still apply.

[rory32]

Overdrafts come under section 10 of the Consumer Credit Act.

 

10.—(1) For the purposes of this Act—

(a) running-account credit is a facility under a personal 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 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), running-account credit shall be taken not to

exceed the amount specified in that subsection (" 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.

[rory32]

From the Consumer Credit Act 1974:

 

Facts. The manager of the C Bank agrees orally with D (an individual) to open a current account in D’s name. Nothing is said about overdraft facilities. After maintaining the account in credit for some weeks, D draws a cheque in favour of E for an amount exceeding D’s credit balance by £20. E presents the cheque and the Bank pay it.

Analysis. In drawing the cheque D, by implication, requests the Bank to grant him an overdraft of £20 on its usual terms as to interest and other charges. In deciding to honour the cheque, the Bank by implication accept the offer. This constitutes a regulated small consumer credit agreement for unrestricted-use, fixed-sum credit. It is a debtor-creditor agreement, and falls within section 74(1)(b) if covered by a determination under section 74(3).

 

Facts. F (an individual) has had a current account with the G Bank for many years. Although usually in credit, the account has been allowed by the Bank to become overdrawn from time to time. The maximum such overdraft has been is about £1,000. No explicit agreement has ever been made about overdraft facilities. Now, with a credit balance of £500, F draws a cheque for £1,300

 

Analysis. It might well be held that the agreement with F (express or implied) under which the Bank operate his account includes an implied term giving him the right to overdraft facilities up to say £1,000. If so, the agreement is a regulated consumer credit agreement for unrestricted-use, running-account credit. It is a debtor-creditor agreement, and falls within section 74(1)(b) if covered by a direction under section 74(3). It is also a multiple agreement, part of which (i.e. the part not dealing with the overdraft), as referred to in section 18(1)(a), falls within a category of agreement not mentioned in this Act.

 

Facts. Under an oral agreement made on 10th January, X (an individual) has an overdraft on his current account at the Y bank with a credit limit of £100. On 15th February, when his overdraft stands at £90, X draws a cheque for £25. It is the first time that X has exceeded his credit limit, and on 16th February the bank honours the cheque.

Analysis. The agreement of 10th January is a consumer credit agreement for running-account credit. The agreement of 15th-16th February varies the earlier agreement by adding a term allowing the credit limit to be exceeded merely temporarily. By section 82(2) the later agreement is deemed to revoke the earlier agreement and reproduce the combined effect of the two agreements. By section 82(4), Part V of this Act (except section 56) does not apply to the later agreement. By section 18(5), a term allowing a merely temporary excess over the credit limit is not to be treated as a separate agreement, or as providing fixed-sum credit. The whole of the £115 owed to the bank by X on 16th February is therefore running-account credit.

 

Facts. The G Bank grants H (an individual) an unlimited overdraft, with an increased rate of interest on so much of any debit balance as exceeds £2,000.

Analysis. Although the overdraft purports to be unlimited, the stipulation for increased interest above £2,000 brings the agreement within section 10(3)(b)(ii) and it is a consumer credit agreement.

[NotBadJustBroke]

I am just about to send off my request for a copy of the CCA however I am still a bit confused. Rory you say overdrafts come under section 10 of the consumer credit act and then give examples which fall within section 74. The template for requesting the CCA refers to Consumer Credit Act 1974 (Sections 77−79) should I amend this and if so to what? Sorry for being a pain but I am not clear what to do.

[rory32]

No you don't need to amend it. The request for a copy of the agreement falls under sections 77-79 of the Act which are to do with the duty of a creditor to give information (e.g. a copy of the agreement) for fixed sum credit, running account credit and hire agreements.

[NotBadJustBroke]

Thank you for that. Several other posters on other threads have said to start the letter with the fact that you dispute the claim and others to finish it with all communication must be in writing. Is this something that you would recommend?

[rory32]

Yes, as it re-affirms your position.