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Overdraft Issue


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Hi,

 

A DCA is demanding payment for a small overdraft about 5 years old. I CCA'd them and asked for copy of any deed of assignment if they had bought the debt. They advised it wasn't covered by the CCA 1974. The also said the following in their 'final response' letter.

 

"With regards to your request for a deed of assignment, we would refer you to section 136 of the law of property act 1925 which provides that the debtor is notified of the assignment of the debt in writing and not a copy of the deed itself"

 

I have asked for proof of this debt and all they sent was a photocopy of a single page years old bank statement.

 

Is this suffice enough for them to demand payment and is their quote above correct, I'm a bit confued by it all?

 

thanks

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212,

 

The LoP act is a little complicated but 2 things stand out.

 

You say that the loan was about 5 years old. Good News if you are in Scotland - Statute of Limitations mean that this is likely to be barred from enforcement.

 

If not in Scotland , don't despair.

 

Because the overdraft was in 2005 it is almost certainly covered under CCA. So, the timescales are still in force - important for you to keep a calendar.

 

Ask them to provide the exact clause in the CCA that gives them the rights to use LoP. You'll find that there is no such beast.

 

If they have now gone over the 12+day limit for CCA, the debt is in dispute and can't be enforced.

 

Your defence is complete if they have the audacity to go to court with that now.

 

You see, If they are claiming rights under Law of Property, it means that the 'debt' has become absolutely assigned. This means all the duties from the original agreement are inherited.

 

The only way a debt can be absoultely assigned is if there is strict proof that the transfer was legally done:

 

You need to see a Note of Assignment to you from the OC,

You need to see a Note of Assignment from the DCA, that they have been assigned.

You need a full Statement of account from DCA since inheriting (a.k.a scalping) this debt.

 

remind them that they have only 30 days to respond to the CCA before they break the law.

 

I would also start the ball rolling by Subject Access Requests to the OC and the DCA - send record delivery and include the £10 Postal Orders for each one.

 

Keep us all appraised whilst you wait.

 

 

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Opinions given herein are made informally by myself as a lay-person in good faith based on personal experience. For legal advice you must always consult a registered and insured lawyer.

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Thanks for the reply.

 

I also asked for a copy of any default notice that was sent.

 

They have also stated in their letter the following :

 

"We are not obliged to send a copy to you at this stage and should proceedings become neccessary we will rely on the evidence of the original creditor to show that a default notice was posted to you"

 

Also the first paragraph in their most recent letter states :

 

"Please be advised the outstanding debt relates to a bank overdraft which is exempt from Part V of the Consumer Credit Act 1974 relating to the form and content requirements of regulated agreements. As such there is no statutory requirement to enter into a formal agreement.

 

so where do I stand at the moment and what would you advise I send to them?

 

In November I CCA'd them, and said the following

 

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit). Your obligation also extends to providing a statement of account. I enclose a £1 postal order in payment of the statutory fee, PO Serial Number 1587 716732.

2. You must supply me with a signed true and certified copy of the original default notice

3. Any deed of assignment if the debt was sold on

Since then they have sent a photocopy of an old 1 page bank statement, and a letter introducing themselves as the owners of the debt, and then this letter going on about the LOP act.

Are they correct with what they are saying?

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Overdrafts do not fall under CCA law in the same way as loans credit cards, but a DCA/creditor still needs to provide evidence of any amount they allege to be outstanding...

 

You've said that they've sent you copies of a bank statement. Does this bank statement tally with the amount they are trying to get you to pay ? (unlikely) and, which DCA are we talking about here ?

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It's highly unlikely that the statement will tally with the amount 1st Credit are chasing you for.... in which case, you can challenge that amount and ask them to substantiate their claim with evidence.

 

1st Credit are notorious for issuing Stat Demands though.... so you need to cover your bases wherever possible. If you do owe money on an overdraft, make a token payment (by rec. delivery), based on what you can afford; not what they say they want. If you can maintain regular payments, then they would be silly to pursue any action against you, since a court would only order payments to be made in line with your ability to pay anyway.

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