Natwest OD - Can a CCA request be applied to an overdraft?

[Taz11]

The reason I ask, I have an o/d with NatWest which has been ongoing for some years and nothing is even paid into the account anymore. The o/d is £5,500 and the account was opened in 1982, can I request a cca on the account with regards to the o/d. I'm building up a nice little pile of these now,

 

.... I assume I send this to my local branch, where the account is held ??

[silverfox1961]

Hi taz,

sorry no you can't CCA an overdraft. That's only for credit card and loans.

If you are going to try and get charges back you need to SAR them instead. This costs £10 and I can give you the letter, I have it somewhere. send it recorded delivery, pay with a postal order,not a cheque and do not sign your letter,just print your name. with a little luck you will get back reams of paper detailing your record with the bank and it should show all fees and charges.

 

fox

[Taz11]

thanks for the quick reply, silverfox and the advice. I'm currently having help from CAB with regards to financial difficulties and debts, and have sent CCA's to respective unsecured creditors. They have suggested Bankruptcy if the house doesn't sell, but what would happen to the £5,500 od. At the moment there are NO funds to pay it back, as I'm just on JSA. Should I or CAB be sending them a holding letter, and if the worst happens will I still be liable for it??

 

thanks again

 

Taz11

[silverfox1961]

While I have no idea what would happen to the overdraft if the house doesn't sell, if you go bankrupt, the bank becomes another creditor however, have you thought about reclaiming your bank charges(if their is any) due to the hardship rules. Most bank account charge claims will be stayed by the courts until a test case has been heard but if you are suffering financial hardship due to bank charges, you can apply for them to be refunded.

If you haven't done so, I'd recommend you opening another bank account that has no relation to the bank you are with.

sorry I can't be more useful than that. I'm still picking up valuable information. I wouldn't immediately go with my advice but wait and others will look at your post and give more advice, especially those going through the same issues as you.

 

fox

[Taz11]

thanks fox ( lol, sorry getting to know you well enough to call you fox)

 

No I haven't applied for bank charges, although I know they are mounting, because I've tried to pay into the account to get it back under when I was working, and lo and behold its back past the limit again. There is nothing beind debited from it, so it can only be charges. I think I'll send or advise CAB to send them a holding letter, and then as you suggest a Subject Acess Request. Does that seem a logical thing to do at the moment??

 

thanks again for all the advice.

 

This forum has made me feel a whole lot better in myself, given me that little bit more confidence, as I feel so guilt ridden and feel that I can challenge some of these debts. I just wish I had known before paying Triton nearly £5000 in payments :mad:

[IdaInFife]

If you wanted here is a list of templates for creditors:

 

Letter c would be suitable

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20758-creditors-dcas-letter-templates.html

 

Ida x

[silverfox1961]

I do think bankruptcy is the last resort but it may come to that if one of your creditors take you to court. As I see it, that is your only asset.

Have a look at the letters ida has given you the link for. there are lots of ideas in there to choose from.

With your creditors, if you start a different thread for each one(if you want to that is) and keep the peeps on here informed of your progress, we may be able to help you reduce your liability. For example, if a creditor has no valid credit agreement, you can then decide whether to stop paying them, agree a substantially reduced monthly amount or if you are able to afford it in the future, a full and final settlement.

Your credit file is stuffed for the next few years anyway so you may as well use the system for yourself.

good luck

 

fox

[Taz11]

thank you Ida, I didn't realise there were so many alternatives !!! I shall definately be forwarding one to Natwest, thanks

 

@silverfox

 

thanks, yh, to be honest got nothing to lose really, and I'm sending out quite a few CCA requests, so you are sure to hear from me...lol. Hopefully i will win a couple, but if I don't and the house goes it will be the Big BK for me I'm afraid.

 

Thanks for the support, and actually not worried about anyone now with regards creditors. What is the worst they can do?.....slap my wrists and tell me I can't have credit. GOOD!!!, its bloody credit that got me partially in this position in the first place.........I'm responsible for the rest for which I take full responsibility..........but it gets to a point where you can't take anymore, you start sinking and there's not often anyone to throw you a life line.

[silverfox1961]

Taz,

YOU have taken the step to sort out your life, firstly by acknowledging the problem, secondly by not burying your head in the sand like I and quite a few others did before finding CAG. Yes it's going to take a while to sort yourself out but from the sound (?) of things you are strong and willing to take on the big guys.

You will get all the support you need even if it's only moral but there are loads of people on this forum who have been in the exact position you find yourself in so you'll never be alone in your trials and tribulations.

You can't go any further down so the only way is up!

 

 

fox

 

ps thanks for the tickle!!

[fedup74]

Just to put the cat amongst the pigeons!! :rolleyes:I thought an overdraft wasn't covered by a CCA request and got slated as I am just a "notivate poster". Someone asked this question in another thread. I said as far as I am aware an overdraft is not covered by a CCA request and suggested to the OP to send off a SAR to find out what charges had been applied. As I say I was slated cos I don't have green blobs at the end of my name!! Here is what was said on the other thread. I have left out the bit were I was slated for obvious reasons:mad:

 

Originally posted by pinky69

"Section 74 (1) (b) of the CCA 1974 exludes overdrafts from being regarded as credit agreements. This is because only one side "agrees" - the bank - and the conditions and terms are imposed on you. Nevertheless, they must be able to prove they sent you a copy of the overdraft limit and interest rate. This can be easily done as they can draw one up at any time and say it was sent to you. The only thing that can be done with overdrafts is to Subject Access Request the original creditor and claim back any excessive charges"

 

Originally posted by rory32

"While overdrafts have part V exemption from the Act (form and content) they are not exempt from the Act and a copy of the agreement still needs to be sent. A more savvy DCA will pick up on the fact that the copy of the agreement would only be a letter from the bank and your CCA request won't bother them in the least (as the overdraft doesn't really fall under s78 ). A less savvy DCA may however just return the account to the creditor. So for the sake of a quid and getting RW out of your life it's probably worth a try"

 

 

 

Originally posted by Peter Bard

 

"Overdrafts are normally not subject to those elements of the Act governing form and content of an agreement. This is because the OFT has issued a Determination under Section 74(3) of the Act excluding overdraft agreements from the need to comply. As a result of this there is usually no written agreement that a consumer can request under Section 78 of the Act. However, I should note that any Bank wishing to avail itself of the benefit of the Determination must notify the OFT of its intention to do so and is required to provide information to the prospective debtor. Specifically, the creditor must provide, in writing, at the time the agreement is concluded or before details of the credit limit if any, the annual rate of interest and any charges available, and the process for terminating the agreement. Typically banks make such information readily available via a variety of media on an ongoing basis.

I went through all this with my sons student account,.Bank accounts of course are not covered by the cca as they are regulated by the FSA and there fore do not have to produce documents asked for under that act with the above acception because the overdraft is unfortunately due to it's exception from part 5 their is no agreement as such so none can be provided .

In the end i just sent them a letter as advised by the FOS saying that i was willing to go to court over the amount of interest they had charged and they would have to provide the orriginal agreement whether it was covered by the cca or not. I recieved a letter a week or so later saying that they had decided it was not in their interests because of the costs involved to pursue this any further and that was that"

I hope this can be of use to you as Fox, I wouldn't want you to feel the way I did if that particular person seen your reply. Just looking out for you:) Good luck

[silverfox1961]

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Edited December 6, 2008 by silverfox1961
didn't read post properly

[silverfox1961]

Fed up,

Absolutely, there are some O/D where a CCA can be used but I've also seen it somewhere that they are few and far between. Obviously you've had some experience of this where I'm just ripping off what I've read on the forum so please give Taz some good advice.

I am still quite green as well so whenever I am corrected I try to use that information the next time it comes up. I don't like asking for scale tickles but I gratefully accept them and I would never slate somebody who's wrong but gently push in the right direction:-D consider yourself tickled

 

fox:)

[rory32]

Taz is the overdraft now with a DCA and if so which one?

[fedup74]

Aww thanks fox and rory, I now have 2 green blobs:D I wasn't being funny here fox, I know the whole idea of this forum is to learn as you go along and there is always someone with more experience who will advise. As I said, I have read on a number of occasions that the CCA does not cover an overdraft. I just didn't want you to feel the way I felt when another member makes you feel belittled and worthless when you try and help people. I actually stayed off the site for a few days and wouldn't give help or advice as I felt stupid. All of the information above is ripped off that thread too:D So thank you soo much for my tickles:D

[silverfox1961]

Fedup

We really seem to be hijacking Taz's thread but i'll say my bit.

I have no problem being told when I'm wrong but Nobody will disrespect me. That's the problem as I see it, lots of different personalities who say things in a way they think is ok but another person sees it as bad mouthing. Your post was as reasonable as I'd expect. you did so politely and as such you deserved a respectful reply which I hope I did.

With text replacing actual words it's so very hard to show emotion or humour even with emoticons so I always try to take a minute to form a respectful reply.

I've said this before and I'm sure I'll say it again lots more,

" If you have nothing nice to say, don't say anything"

Hijack over:-D

 

fox

[fedup74]

Sorry fox I was not disrespecting you in any way shape or form. As I said in the first post "I was looking out for you". I agreed with you that the overdraft was not covered by the CCA as far as I (and you) was aware, I was just pointing out the replies that were posted on another thread to try and help Taz. If you have taken offence, believe me none was meant in the slightest, and I am sorry if you feel this way but I was only trying to help so please accept my apology if it has come across the wrong way. As you said it is hard to show emotions this way but I really was looking out for you:)

Sorry taz for another hijack:)

[silverfox1961]

This is exactly what i was saying. I was talking in general about your problem when you were slated for expressing an opinion.

You were never disrespectful to me and I appreciate that:)

Don't worry about having your say. If people can't accept your opinion, that's their problem. I've read quite a few of your posts on other threads and found them to be reasonable so carry on doing the good work.

Right, bed time. Catcha soon

 

fox:-D

[Taz11]

@fedup and silverfox, Listen fellas, no probs with hijacking the thread. I've read through loads of threads where the hijacked bits have given as much information as the thread itself, so thats fine, the more information no matter what it concerns, the better in my opinion.........as long as its related to debt of course...lol. Thanks for your input.

 

@Rory, the o/d is still with the bank at the moment, and it wil not be paid back in the forseeable future, so not really sure how to approach them at the moment, thats why I asked if a cca could be requested??

 

From the answers, I now assume it can be, but its not really relevant and the bank would not have to produce it. Only ignorance on their part, would force them to try and find one??, am I correct?? Is it worth requesting one, just to see their reply, or just send a holding letter. Your advice on this particular subject would be appreciated.

 

@silverfox, yes I'm going for it, because I have nothing to lose. They can't get a bean out of me, because I have nothing, no work,no savings and probs no house, but I will go down fighting, and if I can get some of the debt unenforced it will be a small victory.

 

thanks again

Taz11

[car2403]

It's quite straightforward, once you've got all the guff out of the way. This should help;

 

The Claimant believes that it will form part of the Defendant’s Defence to this Claim that this agreement is not a regulated agreement under the CCA 1974. The Claimant avers, however, that this is a regulated agreement and falls under the remit of that Act. To help clarify these matters, this is an extract from a Court case (Coutts v Sebastyen) and is part of the summing up by the Judge in relation to effect on overdrafts and the function of the CCA in such circumstances;

 

“The Defendant provided an overdraft on the account;

a. The agreement was a regulated debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, providing for 'running-account credit' within the meaning of s.10(1)(a) of the Act (in effect, a revolving credit within an agreed credit limit); and

b. That, as such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.

 

Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.

 

Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):

"74. – (1) This part …. does not apply to –

(b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …

(3) Subsection 1(b) … applies only where the OFT so determines, and such a determination –

(a) may be made subject to such conditions as the OFT thinks fit …

(3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.

 

THE DETERMINATION:

 

The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:

 

"1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the Consumer Credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

- of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,

- of the procedure for terminating the agreement;

and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended."

 

So, the Bank doesn't have to reply to a CCA request, but if you send a DPA SAR asking for the Determination documentation, they should send it.

 

On the other hand, you could send them a CCA request and see what they say - Barclays will reply saying they don't have to comply, but then you can start the process against them that I used, here;

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/110184-car2403-barclays-bank-default.html

 

Oh, you can also reclaim those charges too...;

 

http://www.consumeractiongroup.co.uk/forum/barclays-bcard-woolwich-successes/93273-car2403-barclays-bank.html

[Having_A_Knightmare]

I will be using the determination argument in Court shortly.

Bottom line is as car says they have to produce something that tells you the terms, as far as i am concerned with out that its unenforcabe under 74(3).

 

Could be a pricey day in Court if not...

 

HAK

[Taz11]

Thanks car and hak,

 

I'm pretty new to this as you can imagine, so on the basis of getting the agreement from Natwest for the O/D, what would you advise would/should be my first course of action? Subject Access request ??

 

...and first letter/template I should send? Sorry for all the questions,

 

regards

 

Taz11

[car2403]

IMHO, you'd send a CCA request and wait for the bank to quote the Determination and then comply with it.