My First Solictor's Letter

[freakyleaky]

 

Yes, there are some very helpful and knowledgeable people on here who know the law and the failings and dirty tricks of the finance companies and DCAs and try to help. Sadly, there also those like him above you.

PGH7447 is very helpful and knowledgeable. Sometimes we all get frustrated and say things in the heat of the moment and also things written on an internet forum can be misconstrued.

Please don't judge somebody from one post.

Can we let it lie now and get on with the matter in hand or posts will be removed or edited so as to keep the thread on topic and civil.

[hungrybear]

 

I know if they don't produce a CCA, they cannot pursue the credit card, so a CCA request is being sent, and that will reveal the enforceability or otherwise of the credit account, but the overdraft is not covered by the CCA and could still result in legal action.

 

.

 

WooooooooooW up a bit here.

 

An overdraft is a debtor creditor agreement as defined under section 8 and 13 of the CCA and is running account credit as defined in section 10. This has high court case law - coutts vs sebastyn.

 

When they say it is not CCA, what they mean is that there is part v exemption from the CCA but,

-they still need to show the contractual arrangement set up with 30 days of the o/d

-they still need a valid default notice

-they still need a termination notice.

 

A current account is covered by the banking code (FSA) and does not offer credit facilities. An overdraft is a credit agreement and as such CCA.

 

This is my specialist area I've seen off HSBC and LTSB on this. They will try to tell you that CCA does not apply to an o/d this utter nonsense. What tehy mean is that they have the part v exemption. So a SAR requesting specifically the default and termination notices plus the letter they sent you within 30 days of setting up the o/d (which must include interest rate and conditions such a limit) will tell you if they can enforce it. But I would still start with a CCA for the o/d it is for them to prove part v exemption.

[mkb]

As my DMP won't end for another 100 years at the present rate, maybe I'd be better off with a hatful of CCJs?:D

 

A CCJ will be repaid at the rate you can afford & the creditors have no say in this amount as it is ordered by the judge.

 

If your DMP is set to run for more than 6yrs, a 'hatful of CCJ's' may be the way to go since they will drop off your credit file in 6yrs anyway

 

It's a judgement call that only you can make but CCJ's also carry the risk of a charge on your property if they're not paid so if you go down this route, you MUST pay as ordered by the judge. It would be essential to show your income/expenditure to allow him/her to determine the amount you would be ordered to pay.

[the_shadow]

a sar will produce the account statements - charges claimed back etc

 

 

.... which if you start court action to recover would put the current account in dispute and should stop them initiating legal activity against you for the overdraft if as you say the CCA is unenforceable too.

 

S.

[Guest HeftyHippo]

Hungrybear. Thank you for making my head spin! I feel like the Exorcist! I thought I was confused before.....

 

Not even going to attempt to break your answer down until I've read it a few more times, but briefly:

I read on this site that an overdraft isn't covered by the CCA. The bank hasn't discussed it at all.

 

They haven't defaulted the current account/OD either. The credit card they've defaulted, and have made final demand, but not the Current a/c.

 

The solictors letter as I've said, has combined the credit card and overdraft balances under the current account number. I think they've done that before some time ago when issung a arrears sum or maybe a demand. I'm wondering if thats just laziness/sloppy procedure/mistake, or some attempt to confuse the issue or some other dodge.

 

Part V of the CCA deals with entering into credit agreements, making and cancelling the agreement etc. doesnt it?

 

I have a letter from them (December 08) saying my use of the overdraft has been reviewed and they are pleased to offer me another. it gives the date it starts, 12 month duration, OD limit, a variable interest limit, and says it is an 'on demand' form of borrowing that can be withdrawn at any time, and says once I have accepted it I can cancel within 14 days. It doesn't say how to accept it though. It does sound like a credit agreement. It was carrying on what had already existed. A big thing abut FD accounts is that they all got an overdraft without an arrangement fee. Then they changed it so that a £250 OD was free, over that a fee was charged.

 

If I understand the general thrust of your post, I should CCA them twice? Once for the overdraft, once for the credit card? Is that 2 letters and 2 x £1, or one letter and £1 to cover both accounts? Or does the letter do enough to show it is enforceable?

 

MKB Thanks. I know the judge would set the payment amount and take into consideration income etc? I'm just thinking that the creditor would be able to enforce payment after the CCJ ended in 6 years. I don't have any property or assets and have always been told till now that a CCJ application would be most unlikely as they would know it was throwing money away.

 

Shadow. Thank you also. the problem with the SAR is that it would be difficult to find the £10 fee this month, and if they took the full 40 days, it would be likely to be near February before I got the reply. Add the time to go through and calculate the charges and write to them and I could have had the summons before then, possibly even had a hearing! As I say, with no assets most have told me that it would be unlikely a CCJ application would be made.

 

Now I wonder should I head this off in any way? Experience tells me PayPlan are just too slow and inefficient to deal with this - I'm still waiting for responses to questions after a couple of weeks. Should I write to the solcitor saying a CCA has been made. Should I simply tell them to talk to PayPlan, advise them I have no assets, advise them I am paying a DMP and cannot afford any more? Should I advise them of my ill health and point out that rejecting a DMP offer and pushing for full payment is hardly sympathetic handling as FDs letters claim they will act? Should i invite them to go for a CCJ as it will probably encourage other creditors to do the same and thus provide overwhelming evidence that bankruptcy is the way forward for me as it will remove all liability other than an IPA (which will last for 3 years only) and remove teh stress of handling this, whilst they and other creditors will get a share of nothing or very very close to it?

 

(I really am actively considering bankruptcy, but am evaluating the debts to see how many are actually enforceable etc. not much point in going BR if most are unenforceable)

Edited November 6, 2009 by HeftyHippo

[hungrybear]

They must have defaulted you on the od to take it to court? Hang on, I'll swop computers and put some more legal stuff up that CAR used successfully to see off an overdraft

 

- in the meantime I suggest you oil your neck!

[Guest HeftyHippo]

They must have defaulted you on the od to take it to court? Hang on, I'll swop computers and put some more legal stuff up that CAR used successfully to see off an overdraft

 

- in the meantime I suggest you oil your neck!

Can't find Default for the OD. I may have sent it to PayPlan. I've asked twice but they haven't contacted me.

 

Oil my neck? is that so it stretches easier when the rope goes tight?

[PGH7447]

raft

 

- in the meantime I suggest you oil your neck!

 

....(edit)

Edited November 6, 2009 by freakyleaky
Flaming remark removed. Site rules n all that!!

[hungrybear]

Oil your neck as in spinning head - well I thought it was funny

 

Right here we go, an extract of CAR's POC. Now, CAR is the Claimant and the Bank is the defendant in this. It should give you a good insight into what the overdraft hoops are..... And no the bank didn't jump through the hoops they settled out of court:::

 

7. The Defendant has failed to supply any originally executed documentation relating to the overdraft agreement as requested in the Claimant’s request detailed in paragraph 4, above.

 

8. 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."

 

9. The Claimant avers, therefore, that the Defendant is in default of the Claimant’s request to provide those details required by the Determination of The Office of Fair Trading and, while that default continues, should be held in default within the terms of s.78(6).

 

10. The Defendant has failed to provide a document that complies with this request. Accordingly, the Defendant is “in default” under s.78(6) and the Claimant respectfully submits that this prevents the Court enforcing this debt until the default is rectified as per s.78(6)(a) CCA 1974. The Defendant has also committed an offence under s.78(6)(a) CCA 1974.

 

11. The Claimant, therefore, puts the Defendant to strict proof of;

11.1. The contractual agreement between both parties in relation to the Current Account, allowing the Claimant to request overdraft facilities and which terms and conditions were included as part of that agreement;

11.2. Where no such agreement can be provided, the agreement between the two parties as to the overdraft facilities provided to the Claimant at the time of application for an overdraft by the Claimant;

11.3. Where no such agreement can be provided, copies of original documentation sent to the Claimant that complies with the Office of Fair Trading’s Determination, issued in relation to overdrafts on Current Accounts, under s.74 and s.133 of the Consumer Credit Act 1974; (that Determination being dated 1st February 1990)

 

12. In its reply to the Claimants request at paragraph 4, above, dated 6 September 2007, the Defendant enclosed an alleged Termination Notice said to be issued on 21 March 2005 and to be issued in accordance with s.76(1) and s.98(1) CCA 1974.

 

13. The Claimant is prepared to swear on oath at trial that such Termination Notice was not issued at the time the agreement was terminated by the Defendant and, accordingly, puts the Defendant to strict proof of said issue and receipt of that Notice.

 

14. The Claimant therefore argues that the agreement has not been defaulted and terminated in accordance with part VII CCA 1974 and as such, the Defendant is not entitled to rely on that default or termination in Defaulting the Claimant.

 

15. In addition to this, between 19/07/2001 and 29/12/2004 the Defendant debited numerous charges from the Current Account, relating to unauthorised overdraft charges and fees, or charges and fees for unpaid items. The sums removed from the Claimant’s account are detailed in the attached schedule and total £842.10.

 

16. No admissions are made by the Claimant as to the incorporation of any term into the contract between the Claimant and the Defendant purporting to entitle the Defendant to levy these charges.

 

17. If the Defendant is able to establish that the contract did contain such terms, the Claimant will contend that these charges are unenforceable at law, being, either, unfair penalties under the Unfair Terms in Consumer Contracts Regulations 1999, because they are a disproportionately high sum in compensation compared to the cost of the purported breach, or, under the law of penalties, the charges are an unlawful, extravagant penalty

 

Hope that helps

[Guest HeftyHippo]

Oil your neck as in spinning head - well I thought it was funny

 

Thats ok HB, I'm not offended, just didn't understand it. Thought for a moment you may know me for elsewhere. A while ago I attempted suicide. My wife has cancer, I have substantial permanent health problems, and with DCAs calling at the door, phoning neighbours etc and inventing debts that didn't exist, things got too much for me. I thought you recognised me from elsewhere and was indicating such.

 

I appreciate your help. I'll have a read through the stuff you posted but my head is spinning at the moment.