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Halifax Current Account- Is this a defective Default Notice? Help please!


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3tea,

 

First I would like to thank you as your post of a current HBOS default notice will be very useful to me in dealing with HBOS.

 

With regard to your question an overdraft is subject to the CCA 74. It is a regulated debtor-creditor agreement within the meaning of sections 8 and 13© of the Act, providing for 'running-account credit' within the meaning of section 10(1)(a) of the Act.

 

However, section 74 allows the OFT to exempt overdrafts from complying with Part V of the the act. Part V is sections 55-74 and deals with 'entry into credit agreements' in particular it covers sections 60-65 which deal with the form of the agreement and the prescribed terms. The exemption by the OFT is called a determination under section 74. This means that they do not need to have an agreement - It is arguable, but not tested in court, that if an agreement actually exists then the bank have to provide is as they are not exempted from section 78.

 

But for a bank to benefit from the determination the bank must have complied with the requirements of the determination about sending letters at the time that the overdraft was taken out. All of this is explained in the following Court of Appeal case:

 

Coutts & Co v Sebestyen [2005] EWCA Civ 473 (28 April 2005)

 

Particularly look at paragraphs 17-20.

 

In your case you may want to see if the letters sent by the bank when you exceeded the overdraft meet requirement © of the determination, because if my memory serves me correctly they do not include the interest rate required by the determination.

 

If they do not then the bank cannot rely on the determination for the amount you exceeded the overdraft limit by, and would require a full CCA for it - which of course they do not have.

 

This may make the DN invalid. There is a lively debate elsewhere as to how to respond to that.

 

Separately, as SX20 says, they have terminated the agreement early and unlawfully. Again there is a debate about how to respond.

 

Hope that helps

 

Dad

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3Tea,

 

You will have to forgive my ignorance, but are you saying that the format of the 'exceeding the overdraft' letters I received may also render the DN ineffective, and make the overdraft fall into a section that requires a CCA?

 

Partly,

 

Let me explain using an example.

 

Suppose you have an agreed overdraft of £1,000 on 1 January. On that day a £100 payment hits the account. The bank rejects it and sends you the bounced item letter - pay £35.

 

Fourteen days later, 15 January, they charge the account £35 - so your overdraft is now £1,035, created with the tacit agreement of the bank.

 

Under the terms of the determination

© 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.

 

So by the end of 3 months and seven days, roughly 22 April, if the overdraft has not been repaid, the bank must write to you setting out the annual interest rate eg 28.8% and any charges. Otherwise they must get you to sign a CCA for the £35 loan.

 

So on 1 June along comes the DN which says arrears of £35 pay up in 14 days or else. That amount is unenforceable because of non compliance with the determination and no CCA. So DN invalid.

 

Is that clearer?

 

Dad

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@andyorch,

 

I disagree with this statement (Certainly on the facts of this case):

 

Default Notices do not apply to Overdrafts.Termination Notices do or otherwise known as Notice Served under Sections 76(1) an 98(1) of the CCA 1974.

 

Not least because, Halifax is clearly alleging breach of contract on the part of 3tea and:

 

Section 76(6) says:

76(6) Subsection (1) does not apply to a right of enforcement arising by reason of any breach by the debtor or hirer of the regulated agreement.

 

and section 98(6) says:

 

98(6) Subsection (1) does not apply to the termination of a regulated agreement by reason of any breach by the debtor or hirer of the agreement.

 

The only way to enforce a regulated agreement, including an overdraft, following a breach by the consumer is using the section 87/88 default notice procedure.

 

Section 76/98 can be used where there is no default and the bank wished to end the agreement.

 

If you genuinely believe otherwise, please point 3tea to a statute or case law reference.

 

Dad

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