NatWest Bank Overdraft Default Notice

[Braveheart12]

Can anyone advise me on whether this Default Notice is vaild? and do DN's on overdrafts work the same as they do for Credit Cards?

 

 

 

 

Does anybody know if this Default Notice has been properly executed?

 

Thanks

 

Just received the from NW.

 

 

The letter states that they have defaulted me and terminated. Can any help me by clrifying whether or not the default notice is acceptable. Surely its not set out properly, it looks completely different to any I have previuosly received from other creditors.

[Braveheart12]

Can someone help me with wether or not this default notice is vaild....I started a thread in the Natwest section, but not having much luck over there.

 

http://www.consumeractiongroup.co.uk/forum/natwest-bank/204608-natwest-bank-overdraft-default.html

 

Thanks.

[cerberusalert]

It's defective because they are required to give you a specific date to remedy by, just stating 28 days is not satisfactory.

[cerberusalert]

Does anybody know if this Default Notice has been properly executed?

 

Thanks

It's defective because they are required to give you a specific date to remedy by, just stating 28 days is not satisfactory.

[Braveheart12]

Thanks, I wasn't sure if the same rules apply to bank accounts as they do with credit cards.

[MarkieMark]

If you have recently acquired a motor vehicle under a hire purchase or conditional sale agreement, it may be regulated by the Consumer Credit Act 1974 ('the 1974 Act'). The easiest way to find out is to dig-out your agreement and look in the top left hand corner. If it says "regulated by the Consumer Credit Act 1974" then your agreement is 'regulated'. If it does not say so but if you are an individual and your total amount of credit is less than £25,000 then the agreement should be regulated by the 1974 Act. If it doesn't say it is, then take advice as soon as possible!

So, if your agreement is regulated by the 1974 Act what happens if you fall in to arrears? There are three options:

• the creditor (i.e the person who you make your payments to) can send you a default notice under section 87 of the 1974 Act;
  
• you can give written notice at any time before the 'expiry' of a default notice to terminate the agreement, return the motor vehicle and pay the difference between what you have paid and one half of the total amount payable under the agreement; or
  
• you can apply for a 'time order' under section 129 of the 1974 Act which, if your financial difficulties are short term, may give you more time to pay the instalments and stop the creditor from ending the agreement and recovering the motor vehicle
  

Default Notices

Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears. The default notice must contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'), which includes

• a statement saying the notice is a default notice served under section 87(1) of the 1974 Act
  
• a description of the agreement
  
• the name and address of both the debtor and the creditor
  
• details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;
  
• a statement saying: if the action required by this notice is taken before the date shown no further enforcement action will be taken in respect of that breach
  
• a statement saying: if you do not take the action required by this notice before the date shown then the further action set out below may be taken against you
  
• a clear and unambiguous statement saying that if the action is not taken by the date specified, what it will do (for example, if will it terminate the agreement and recovery possession of the motor vehicle)
  
• if the agreement is one of hire purchase or conditional sale, a statement saying: but if you have paid at least one third of the total amount payable under the agreement set out below (or any installation charge plus one third of the rest of the amount payable). The creditor may not take back the goods against your wishes unless he gets a court order. (In Scotland, he may need to get a court order at any time.) If he does take them back without your consent or a court order, you have the right to get back all of the money you have paid under the agreement set out below
  
• if an amount of money is required to be paid, the amount before deducting any rebate on early settlement
  
• statements saying:
  if you have difficulty in paying any sum owing under the agreement or taking any other action required by this notice, you can apply to the court which may make an order allowing you more time
  if you are not sure what to do, you should get help as soon as possible. For example you should contact a solicitor, your local trading standards department or your nearest citizens' advice bureau
  important - you should read this carefully
  

Under Regulations 33 of the Consumer Credit (Information Requirements and Duration of Licenses and Charges) Regulations 2007 the default notice must from 1 October 2008 also include the following statement:

You have the right to end this agreement at any time

before the final payment falls due. Note that this right may be lost if you do not act before the date shown (after which we may take action).

If the date for final payment has not passed and you wish to end this agreement, you should write to the person to whom you make your payments. You will need to pay £ if you wish to end this agreement by the date shown and we will be entitled to the return of the goods. You will also be liable for costs if you have not taken reasonable care of the goods.

If the default notice fails to include all of the necessary information, it is likely to be ineffective and will not allow the creditor to recovery the motor vehicle unless you give your consent to the recovery. So, what can you do if it is recovered against your wishes? The answer depends on how much you have paid to the creditor.

If you have paid more than one third of the total amount payable, section 90 of the 1974 Act states that the motor vehicle is 'protected' from repossession. So, if the motor vehicle is recovered then, under section 91 of the 1974 Act you are entitled to a return of all of the money you have paid to the creditor, regardless of how long you have had the motor vehicle.

If you have paid less than one third of the total amount payable, the motor vehicle is not protected from repossession. Instead, if it is recovered you can say that the creditor has wrongfully interfered with your right to possession of the motor vehicle. The Court cleared-up what this meant in Chartered Trust plc v King (2001) WL 172107 and decided that the debtor (i.e. you) are entitled to a return of all of the money paid to the creditor. Again, it is irrelevant how long you have had the motor vehicle.

Debtor's Termination

Under section 99 of the 1974 Act a debtor under a hire purchase or conditional sale agreement can, at any time before the agreement has ended, give written notice to the creditor to end the agreement. Once the agreement has ended, you have to return to the motor vehicle in a reasonable condition and, if you have paid less than a half of the total amount payable, you must pay the creditor the difference between one half of the agreement and what you have paid. If you have paid more than one half, you only have to return the motor vehicle and pay the arrears at the date of your letter.

It is important to remember that you can exercise your right under section 99 of the 1974 Act even if you have received a default notice as long as the date in that notice has not passed. In First Response Finance Limited v Donnelly [2006] GCCR 5901 the Court considered whether a debtor's termination after the date specified in the default notice would limit the amount payable to the creditor to the difference between one half of the agreement and what had been paid. It decided that it did not and the debtor was liable for the total amount payable under the agreement minus the amount paid by the debtor and the motor vehicle's net sale proceeds.

Time Order

Before you can apply to the Court for a time order, you must be served with a default notice or, when they become required by law, an arrears notice. Normally, the Court only has the power to give you extra time to pay the arrears but if the agreement is one of hire purchase or conditional sale, it can make an order under section 130(2) of the 1974 Act to effectively re-write the agreement.

The Court will consider your financial position. It is therefore vital that you send to the Court and the creditor as much information as possible about your financial position and explain, with evidence, how it will get better. If there is little prospect of it doing so, the Court is unlikely after the decision in First National Bank plc v Syed [1991] 2 All ER 250 to give you extra time to pay.

Summary

If you run into financial difficulties under a regulated hire purchase or conditional sale agreement, the first question to ask is whether you want to keep the motor vehicle. If so, your only real option is to contact the creditor and negotiate a payment plan. If it is unwilling to do so, you can apply for a time order under section 129 of the 1974 Act if you receive a default notice or, in the future, if you receive an arrears letter. However, your application is unlikely to be successful if you cannot show your financial problems are temporary. If you do not want to keep the motor car then you should consider whether it would be cheaper to terminate the agreement under section 99 of the 1974 Act. If so, send your letter by recorded delivery to the creditor's registered office and make sure you keep a copy. Then try to negotiate a way to pay the balance outstanding (if anything).

[AndyOrch]

Hi

 

Need to know the dates of the letters to establish if the allowed time to rectify the breach was served correctly.

 

Regards

 

Andy

[Braveheart12]

The DN Letters were date 3rd June.

[AndyOrch]

And yet it states in the last letter the account will be terminated on or after the 21st June,so in effect no time allowed to rectify the breach and therefore totally invalid.

 

 

Regards

 

Andy

[Braveheart12]

Thanks, I'd missed that. 28 days as stated in the first letter would be 1st July! They state "on or after 20th June on the DN.

 

Is the letter dated 21st June a Termination Notice?

[AndyOrch]

Hi

 

76(1) 98 (1) is the Termination Notice but what was the date on that one?

 

Regards

 

Andy

[Braveheart12]

All 3 sheets in my 1st post came in the same envelope on the 3rd June.

[AndyOrch]

Ok then the DN/Termination Notice are valid then and have allowed enough time for you to rectify the breach ie 14 days plus service say 3.

You must remember these are in relation to an Overdraft not a loan or CC account hence the different style and layout,Did you not respond in any way on notice?

 

 

Regards

 

Andy

Edited July 19, 2009 by Andyorch

[Braveheart12]

I was wondering about the difference in layout. I have not responded to NW. Why do you ask?

 

I still the DN is dodgy as the dates are unclear and cause confusion. They start by saying I have 28 days to remedy but then in the same correspondance state the 20th June which is 17days!

 

On top of this there is also Cerberusalert's arguement of them have to give a specific date rather than an amount of days.

[AndyOrch]

Hi Again

 

Im afraid Cerberusalert's arguement does not apply to a overdraft termination notice,it does not work like a DN in any shape or form.It states the date the account/overdraft will be terminated and is infact a recall notice.Which by the T&C levied to the overdraft they are in their rights to take this action.Look closely after the date you will see the sentence " unless by that date you have made alternative arrangement for repayment which acceptable to the bank"

So they have given you 17 days to respond and agree altenative arrangements.

Changes were made to the CCA 1974 were made in October last year with regard to DN/Termination Notices and your Notices conform to the amendments.

 

So what happens now you may think, well hence my question have you responded in anyway.I dont know your circumstances and why NW took the above action Account in dispute/ unfair charges etc? so you would have to expand on that point.

 

What can you expect next?Well NW may pass the account to a DCA to persue the outstanding debt or pass it straight to a Solicitor to instigate litigation and issue you with a summons.Your response to my points above very much reflects any further advise I can offer you.

 

I trust the above is of help

 

Regards

 

Andy

[Braveheart12]

Thanks for clearing that up Andy.

 

NW have taken this action as in January I informed them I was in financial difficulties and requested I repayment plan. I did this with all my creditors, then stumbled on CAG. Since then I have stopped paying all of them due to unenforeable CCA's and DN's that were served incorrectly.

 

I have not corresponded with NW since they declined my repayment offer as it was deemed to be too low. My overdraft his currently over its limit due to charges and interest being added since I stopped payments into the account in November last year.

[AndyOrch]

Hi

 

Ok now I see the whole picture.I trust you have retained all the paperwork (especialy NW decline) involved in the lead up to this and sent them recorded delivery.This will add to your papertrail which will become important as and when you need to defend any summons.

I would advocate requesting a S.A.R from NW with regards to the current account so you can verify the total of unfair charges.This will cost you £10.00 send recorded delivery.

There is no point requesting a Sec77 CCA as overdrafts are excluded.

 

Time will tell what there next move will be but in the meantime you can prepare your case should the inevitable land on your doormat.

 

Regards

 

Andy

[Braveheart12]

Yes I have filed all paperwork and used recorded delivery. I have most of my statements for the last year so I'll check those to see if its worth sending them a SAR.

[AndyOrch]

I would send it anyway you need to go back 6 years (subject to the age of the account.)

 

 

Regards

 

Andy

[Braveheart12]

I opened the account when I strted uni in 2001, so its quite likely it would be worth while sending a SAR. I'll get one sent.

 

Looks like I'll be getting another DCA to add to my collection! All my other creditors have already done this. If this happens I'll look at making a reduced full & final settlement offer.

[Braveheart12]

Just had my SAR and Postal Order returned as I did not provide them with my signature and my address is different to their records. They has asked for my sig and a utility bill to confirm my address. They are still sending correspondance to my parents address despite me corressponding with them using my current address.

[yourbank]

Just had my SAR and Postal Order returned as I did not provide them with my signature and my address is different to their records. They has asked for my sig and a utility bill to confirm my address. They are still sending correspondance to my parents address despite me corressponding with them using my current address.

Are you saying that the bank responding to you with regards to the SAR is what you class as "corresponding with you"?

If the statement address is different then the bank have the right to ask for either a signature or proof of yourself.

It would be a bit like me asking for your details from my address when the statements are sent to you(does that make sense?)

[Braveheart12]

Yes thanks...I'll send them proof of my address to meet their sercurity criteria.

[yourbank]

Yes thanks...I'll send them proof of my address to meet their sercurity criteria.

Just pop into the branch with ID and get them to take copies and stamp them. Ask them to forward it onto their SAR team in edinburgh.

[Braveheart12]

Just received this letter from Moorcroft.

 

 

Any advice would be appreciated.