FDPM WELL -V-BOS (Preference Account) ***WON***

[fdpm]

I am due to attend court for:

 

An order for the stay of proceedings to be lifted and the Defence to be struck out and Judgement entered for the Claimant for £x,xxx + fees in accordance with CPR24

 

This is because of a Preference Account Credit Card that they say is not a credit card but a bank overdraft -

 

I have read through all the posts I can find on here to do with Preference Accounts but can't find any that have any real resolution.

 

I believe that as this card was stated on my credit file to be a credit card, the statements sent out showed a 'credit limit' which they changed whenever they felt like it, and the fact that the card account was operated in every way like a credit card, that it should fall under the CCA - their argument is based upon them stating it is not a credit card and therefore the CCA does not apply.

 

Can anybody help me compile my defence so that I can put across the argument in a 'legal' way - OR can anyone just help me with some advice.

 

I have left this to the last minute because mother in law had another heart attack and have been ferrying Father in law back and forth to hospital and looking after him...

 

I am becoming resigned to worst case scenario of admitting defeat and offering to pay but would really like to go into court with some sort of fight?

 

Help... anyone?

[postggj]

who issued the claim

 

was it a dca

name the dca or bank

[fdpm]

It has been issued by the Bank - BOS

[hungrybear]

overdrafts fall under the CCA anyway - section 10 running account credit. Are they trying to say otherwise?

 

Do you have a default notice?

Have they supplied any form of credit agreement - for an od this would be in the form of a letter stating apr, limit etc.

[hungrybear]

This should help. Note that the claimant is a cagger and the defendant is the bank This is an extract of the POC. The bank settled out of court:

 

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

 

[fdpm]

Wow hungrybear, Thank you - that is very useful.

 

I have got to compile my defence today and get it out in the post by Recorded - in between taking father to opticians, bank and hospital!

 

I hope to be back here by 3pm -

 

Any help that anyone can give me will be really appreciated.

 

I will include the extract hungry bear sent me, and I will also make a statement about the fact they have issued a 'credit limit' and not an overdraft limit -

 

My bundle is not going to be very big though - I have printed out the CCA act and some other notes...

 

We're in court next wednesday.

 

Oooooh errr.

[hungrybear]

I would start with how and why you believe it to be a credit card and therefore subject to part v (v as in five) form and content of the CCA. So a few little paragraph points about credit limit and min payment, their credit file entry.

 

BTW - what documents have they provided so far to a) prove there is a debt, b) show that it is an o/d and not a cc?

 

Then move on to if the bank is able to demonstrate that the alledged debt related to an overdraft on a current ac then section 10 of the CCA applies and - ..... the stuff I posted before.

 

THEN

 

you can use civil procedure rules to get all the information they seek yo rely on in court.

[fdpm]

thank you hb, I've just got to go to the hospital and then I'll be back to sort this lot out.

[palomino]

Just to clarify and earlier point ...

 

Bank of Scotland, under the guise of Capital Bank, provided a Preference Account. It is not immediately clear what sort of account this is however after some investigation by people here it turned out to be a current account overdraft.

The name is just that : a name - it has no legal connotation but I guess it's intended to make people feel good ('I must be special if I can open a Preference Account').

These accounts are not covered by the Consumer Credit Act.

[hungrybear]

These accounts are not covered by the Consumer Credit Act.

 

ALL overdrafts are covered by the CCA.

[fdpm]

Hi, Can anybody with more experience and knowledge run through this proposed defence of mine and tell me if it reads okay?

 

Thank you!

I, FDPM of Blah Street, will say as follows:-

 

• The contents of this statement are true to the best of my information, knowledge and belief and the facts stated herein are known to me personally unless otherwise stated.
  
• The Claimant, the HORRID BANK has stated that on DATE 98 by signature of an Account Application Form, I entered into an overdraft facility with OTHER HORRID Bank. I deny this as I never applied for an overdraft facility. I took out a loan with OTHER HORRID and they sent me this application form which at the time I believed was for the loan.
  
• I subsequently received my loan and a Preference Card which I was ALWAYS under the impression was to be used like a credit card in that I borrowed credit and made monthly payments.
  
• The card was shown on my credit report as a CREDIT CARD, the statements I received always showed a CREDIT LIMIT and I would argue that if it was truly an overdraft facility and a bank account that I should have been encouraged to pay my salary into the account and the statements would have shown an OVERDRAFT LIMIT.
  
• The Claimant has also argued that because this is a bank account that it is not regulated by the Consumer Credit Act 1974 and yet, in their original statements they mention the CCA 1974. This is confusing.
  
• The Defendant understands that it will form part of the Claimant’s Claim that this agreement is not a regulated agreement under the CCA 1974. The Defendant avers, however, that this is a regulated agreement and falls under the remit of that Act. To help clarify these matters, please see this extract from a Court case (Coutts v Sebastyen) which 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."
   
  
   
  
  
• The Defendant, therefore, puts the Claimant to strict proof of;
  

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

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

1.3. Where no such agreement can be provided, copies of original documentation sent to the Defendant that complies with the Office of Fair Trading 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)

 

 

 

• In its reply to the Defendant Part 31 request dated date the Claimant enclosed a copy of an alleged Default Notice said to be issued on date and issued in accordance with s.87(1) CCA 1974.
  
• The Defendant is prepared to swear on oath at trial that such Default Notice was not issued at the time the agreement was terminated by the Claimant and, accordingly, puts the Claimant to strict proof of said issue and receipt of that Notice.
  
• The Defendant therefore argues that the agreement has not been defaulted and terminated in accordance with part VII CCA 1974 and as such, the Claimant is not entitled to rely on that default or termination in Defaulting the Defendant.
  
  
  

[fdpm]

Ha! I have just realised that the original POC states:

 

that I failed or delayed to adhere to the terms of the Default Notice issued by the Claimant under the terms of the CCA 1974

 

and their whole application for the stay is arguing that their card doesn't fall under the CCA 1974!

 

Surely then, one contradicts the other?

 

Idiots!

[hungrybear]

You switch in and out of bullet points and paragraph 1.1 - ideally all points should be numbered.

 

We need to get the site team to have a squizz at this now, so i'll press the red tiangle and report myself!

[fdpm]

Thank you

[kel123]

Just to clarify and earlier point ...

 

Bank of Scotland, under the guise of Capital Bank, provided a Preference Account. It is not immediately clear what sort of account this is however after some investigation by people here it turned out to be a current account overdraft.

The name is just that : a name - it has no legal connotation but I guess it's intended to make people feel good ('I must be special if I can open a Preference Account').

These accounts are not covered by the Consumer Credit Act.

 

As one along with others who have investigated this account disagree with what you have said! Bos mis pitched this as somewhere between a guarenteed loan, with the ability to draw down as required and a running account. It is not and never has been a current account and the last time I had this discussion was with a gagger who worked for HBOS? It does not fit either the English, European or American definitions of a current account and I suggest FDPM Well checks if they can have their wages paid into the account, do standing order and direct debits etc, they will find they cannot.

 

FDPM Well I am watching this with interest because I have not paid to one of these accounts for 20 months

 

Good Luck

Kel

[fdpm]

Thank you everyone for your responses - I called the Court today and because they have asked for my original defence to be 'stayed' I don't actually need to submit anything else - but I am going to prepare a statement as above and submit it to the judge when I get there.

 

I think they have shot themselves in the foot though because the original POC has mentioned the CCA and now they are stating that the 'account' is not covered by the CCA - so I could argue that their original POC is rubbish and that I have no case to answer. They can't have it both ways!

 

I'll let you all know the outcome - to be very honest, I am so busy with trying to help aged parents that this all seems quite silly - and at the end of the day if I have to pay them £5 for the rest of my life....then so be it cos that's all they'll get out of me.

 

If anyone has time to help me with the staement, I would be grateful.

 

Thanks

[hungrybear]

Bos mis pitched this as somewhere between a guarenteed loan, with the ability to draw down as required and a running account.

Kel

 

take it you mean unsecured loan in cca speak?

 

Anyway, there is nothing between a loan and running account credit. One is a loan and one is.... an overdraft.

 

Both of which are CCA covered.

 

I suspect they pitched this as an 'easy in easy out loan' loan at the time and to 'simplify the paperwork' and pull in the punters they administered it as an o/d.

[hungrybear]

Thank you everyone for your responses - I called the Court today and because they have asked for my original defence to be 'stayed' I don't actually need to submit anything else - but I am going to prepare a statement as above and submit it to the judge when I get there.

 

I think they have shot themselves in the foot though because the original POC has mentioned the CCA and now they are stating that the 'account' is not covered by the CCA - so I could argue that their original POC is rubbish and that I have no case to answer. They can't have it both ways!

 

I'll let you all know the outcome - to be very honest, I am so busy with trying to help aged parents that this all seems quite silly - and at the end of the day if I have to pay them £5 for the rest of my life....then so be it cos that's all they'll get out of me.

 

If anyone has time to help me with the staement, I would be grateful.

 

Thanks

 

I think you should give 'em hell. they seem to be saying we have no paperwork but that's ok 'cos its an overdraft but now you know they are talking out of their backside.

 

I think you need to get this statement sorted. I would submit it to the court prior to the hearing - copy to the idiots. To give the judge time to read it and show the rabbits that they need to run from your dog!

[kel123]

Hungry bear it has only been in the last few years that they have tried to say it's an O/D, because the cca didn't meet the CCact.

 

Did I say miss pitched? the intention was that you applied for a loan, the loan was authorised and you drawed down as required and only pay interest on what you borrowed - sounds very similar to a credit card don't you think? Either way as you said, firmly comsumer credit act

[hungrybear]

 

Did I say miss pitched? the intention was that you applied for a loan, the loan was authorised and you drawed down as required and only pay interest on what you borrowed - sounds very similar to a credit card don't you think?

 

 

Well then they wont have an o/d compliant letter will they? For an o/d they have to send you a letter within 30 days which contains limit, apr and how it will be administered.

 

Perhaps it would be best to SAR them BEFORE getting too technical in court, making it clear you want that o/d letter or a cca agreement.

 

Trouble with the od letter is IF you are being pursued by the od it's far too easy to recreate/fake. Of course if they sold to s dca then the oc could not care less.

[ManOfHarlech]

FDPM WELL

 

I successfully defended a Summary Judgement some years ago. My advice is you should remember a Summary Judgement is not a FULL hearing. What the other side are trying to do is short circuit the system by asking the Judge to strike out your defence on the grounds that you have no reasonable prospect of arguing a defence at a full hearing.

 

To defeat a Summary Application all you have to do is show that you could produce a defence which is more than fanciful.

 

There seems to be some excellent information provided by other posters for you to use in this thread. Therefore tell the Judge that you must be given an opportunity to present this evidence at trial to establish for example if your account was or was not an overdraft.

 

By precedence he will have to grant your wish and dismiss the application from the other side. BTW don’t be shy in asking for costs when the Judge does dismiss their application.

 

As a litigant in person you are entitled to £9.50 p/h for time taken in preparation for your case, travel time plus any costs incurred in buying paper, ink, postage or fees etc.

 

£150 paid within 14 days should cover it.

[hungrybear]

final question for now, is this loan/ od linked to a current account in ANY way? ie. is there balance switching / ongoing ofset between the two - like a 'one account' type thing?

[fdpm]

Hi Guys

 

Okay what happened was that they (BOS) issued a summons wherein the POCs stated I had defaulted on AND I QUOTE "a credit agreement" and they went on to say I had defaulted and that they had issued a DN under the CCA!

 

I then issued a CPR31 letter stating that I had no evidence of the DN and wanted full copies of everything including the original agreement.

They eventually sent me everything EXCEPT for the OA and no Default Notice has ever been produced. I then put in my defence based around the fact I had never received DN.

THEN they said it didn´t come under the CCA as it was an overdraft account and then they issued the statement thingy (good legal term there) that they have sent requesting summary judgement.

 

MY argument is now going to be based aroundthe fact that they can´t take me to court for DEFAULTING on something to do with the CCA and then turn round and say my defence is useless because I have quoted the CCA! Surely if their original Summons was based around them saying my default was to do with the DN, they cannot now request my defence struck out - they surely cannot have it both ways... either I have defaulted because the CREDIT AGREEMENT (their words) is still unpaid and I ignored their (supposedly sent) DN OR there never was any DN because it is an overdraft in which case their original sumons is wrong!

 

Now, if one of you could help me put that so that it reads in legal speak...

[Tonka99]

Hello FDPM

 

Can you give us a rough idea when your SJ is to take place

have you got their WS

have you sent yours to the court

 

I won my SJ back in July and you need to trash their WS

and produce enough evidence to convince the DJ that you

can defend at trial

 

Wishing you the best

 

Tonks:)

[fdpm]

Hello FDPM

 

Can you give us a rough idea when your SJ is to take place - It is scheduled for next week!

 

have you got their WS - yes in which they have tried to say my defence is not good enough but I think they have shot themselves because they changed solicitors and no-one seems to have recognised they are now arguing my case for me!

 

have you sent yours to the court - not yet - I still need help in compiling it right wordy wise.

 

I won my SJ back in July- well done!

 

and you need to trash their WS - they are doing a good job of it for me..

 

and produce enough evidence to convince the DJ that you

can defend at trial - I still think I now have nothing to defend?

 

 

Wishing you the best - Thank you