Loan charges and enforcability

[GeorgeUK]

My brother has a loan which he has defaulted on and has been paying back for a year or so. When i asked him about it, he confirmed that he had quite alot if charges applied to the balance.

 

I had looked at reclaiming bank charges years ago but was hoping for a quick refresher course. Bearing in mind that the debt will probably be ruled under Scottish law:

 

Can you reclaim charges back for a loan? (late payment etc)

Are you restricted to reclaiming £750?

Can you claim back further than 5 years?

 

If he was to send a SAR to receive the transaction details, should a copy of the CCA be included with the returned documentation and should it have the signatures on it?

 

Not sure if he should sign the SAR, alter his signature or send a copy of a utility bill and birth certificate. Any help or pointers would be appreciated.

 

thanks

George

[rory32]

Can you reclaim charges back for a loan? (late payment etc)

Yes.

 

Are you restricted to reclaiming £750?

No. The small claims limit is now 3K.

 

Can you claim back further than 5 years?

You can try but bear in mind you might not be successful.

 

How old are the majority of the charges?

 

If he was to send a Subject Access Request to receive the transaction details, should a copy of the CCA be included with the returned documentation and should it have the signatures on it?

Only if he specifically asks for this as part of the SAR.

 

Not sure if he should sign the Subject Access Request, alter his signature or send a copy of a utility bill and birth certificate.

No he shouldn't sign the SAR. They should be able to supply the info without proof of i.d. as this is the normal address that they send account information to. If they require verification then send a utility bill (don't send a birth certificate as they may lose it), however even if they do require i.d. then the 40 days are still running from receipt of the initial request.

[GeorgeUK]

Not sure how old most of the charges will be but he'll probably be happy enough going back 5 years (since i'm doing it for him )

 

Can i ask, why do you need to ask specifically for a copy of the CCA as part of the SAR?

Would this not cover it?

Under the Data Protection Act 1984 and 1998, and including the right of subject access under these acts, I hereby request that you supply me with any and all historical data in your possession which relates to me and am entitled to under section 7(1) of the Act.

 

Just curious.

 

I'll try to get this done over the weekend.

 

thanks again

George

[rory32]

It's just a matter of removing any wriggle room for them. In general they will be as awkward as they can and try and mess you about when dealing with a SAR unless you spell it out for them.

[GeorgeUK]

Thanks for that Rory.

 

Here's the letter i'm going to instruct him to send. I'll tell him to write his name on the letter but to make sure it is not his signature he uses. Also, that he should enclose a £10 postal order (not a cheque - unless it is from someone else).

 

Data Protection Act 1998

Subject Access Request

Dear Sir/Madam

ACCOUNT NUMBER: xxxxxxxxx (or multiple numbers if more than one account)

Under the Data Protection Act 1984 and 1998, and including the right of subject access under these acts, I hereby request that you supply me with any and all historical data in your possession which relates to me and am entitled to under section 7(1) of the Act. This includes in particular, but is not limited to, the following:-

1. The original signed, executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company.

3. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account.

4. True copies of any notice of assignment and/or default notice or enforcement notice that you have sent me, with a copy of any proof of postage that you hold.

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

6. Details of any collection charges added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

7. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

8. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998.

9. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

10. Copies of statements for the entire duration of the credit agreement or details of all account transactions.

I enclose the statutory maximum fee of £10. This fee is to be used solely for the purposes of supplying the Subject Access Request. You have 40 days in which to comply.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

Yours faithfully,

 

Any glaring errors or anything you see that i have missed? I've amended this from a few different SAR letters i've seen and this seems to include all the pertinent information.

 

thanks

George

[rory32]

Has the account been sent to a debt collection agency to be dealt with or is it still with the original creditor?

[GeorgeUK]

Still with the OC as far as i am aware.

He had a default issued but pretty sure it's still with the bank.

[rory32]

If it's still with the bank you don't need points 6, 7 or 8 and you can remove the notice of assignment bit from point 4.

[Vital Spark]

Yes.

 

No. The small claims limit is now 3K.

 

Is the small claims in Scotland now £3000? When did it change from £750 and what does the Summary Clause limit stand at now?

 

So glad for this thread and it's contents.

M

[rory32]

Is the small claims in Scotland now £3000? When did it change from £750

It changed to 3K in January 2008.

 

what does the Summary Clause limit stand at now?

5K.

[Vital Spark]

Why would one NOT include one's signature in an SAR?

[rory32]

If you are asking for a copy of the credit agreement as part of the SAR it is only prudent not to sign the SAR as it is very easy to just scan and paste a signature onto another document.

 

There have been instances where it has been alleged that this has happened in the past when letters have been signed.

 

In one instance the person had suffered an injury after the account had been taken out which meant they now used their other hand to write with (obviously this changed their handwriting and signature). After signing a letter when requesting a copy of the credit agreement a credit agreement was produced bearing their new considerably altered signature.

[Vital Spark]

Thanks Rory. Did the reclaiming of bank charges cases have anything to do with the amounts being changed?

 

I've been so wrapped up in backyard problems with Ffie Council, health, family and money issues not to mention disintegratign pc to keep up with anything else. needless to say, I'm still in need of your help but won't call on it until I can get that definite date organised in a settled manner.

[Vital Spark]

Thanks again. I see what you mean regarding the signatures but would they not be expected to, by the courts, or could they not be asked by their pursuer to provide original documents which would surely negate the viability of photocopied signatures? Or would it? Also, could they not just copy the signature from a previous letter or document if that was to eb their practice?

 

I just DO NOT trust them nor my ability to tackle them.

[Vital Spark]

What is it about these loan agreements that renders them null and void? Is it only the inclusion of insurance where it's not necessary?

 

Could it transpire that George's brother is able to have the loan balance waived because of irregularities in the original agreement?

 

I know that I had charges for late paymets on my loan. I@m not sure if the bank were ethical when they added my overdraft to the loan and increased teh tiem limit to 5 years instead of the original 3 ( I think ti was). Neither do I think I signed for the new agreement but that agreement definitely included charges which were applied to the account therefore overdraft before it was added to my loan.

 

Does that makes sense?

 

Is it okay for me to be askign this on GeorgeUK's thread, since they pertain to the same subject, or should I be using a trhead of my own?

[rory32]

I don't think the increases in limits were really very much to with bank charges claims but more a range of measures that have been brought in over the last year or so to update the scottish civil procedures in general as previously it was about 20 years since any major changes had been made to them.

 

I see what you mean regarding the signatures but would they not be expected to, by the courts, or could they not be asked by their pursuer to provide original documents which would surely negate the viability of photocopied signatures? Or would it? Also, could they not just copy the signature from a previous letter or document if that was to eb their practice?

In an ideal world they would be expected to produce the original, however in practice judges are often willing to accept photocopies. Regarding keeping signatures from previous letters - often banks don't keep previous letters. I would also add that there only seem to be a few occurances where this has happened and it is far more likely to happen if you are dealing with a DCA than the actual creditor.

 

I just DO NOT trust them nor my ability to tackle them.

Well that's what CAG is for, to give you a hand when you are tackling them

[Vital Spark]

Hmmm, and thank Goodness for them.

 

What is a DCA?

 

Rory, can you have a wee peek at my "Charging banks" thread, please? When it's convenient for you.

Edited February 28, 2009 by Vital Spark

[GeorgeUK]

DCA = debt collection agency.

 

Is it okay for me to be askign this on GeorgeUK's thread, since they pertain to the same subject, or should I be using a trhead of my own?

As long as it's partially on the same subject, knock yourself out.

[Vital Spark]

Thanks George.