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

[fdpm]

bump

[hungrybear]

bump

 

Sorry, I was waiting for you to read the new bundle and come back with questions.

[fdpm]

Hi

Okay here is the main gist of their new POCs:

 

AND I QUOTE VERBATIM

 

The Claimant opened a Preference Account for the Defendant numbered xxxxx on xxx99. A copy of the Application Form/Agreement is attached. A copy of the Account Conditions of Use in force at the date of the Agreement is attached. (These are the same as before)

 

The Agreement provided the Defendant with credit under an Overdraft Facility. This was referred to on the Account Statements as Credit Limit. The Agreement, however, was exempt from Part V of the CCA 1974 in terms of the nature and form by virtue of the Director General of the OFT's Determination under Section 74(1)(b) of the CCA 1974 dated 21 December 1989

 

The Defendant was originally offered an Overdraft Limit of £1000. This was gradually increased by the Claimant up to £4000

 

The Defendant was required to make monthly deposits of "at least 5% of the total debit balance outstanding of £50, whichever is the freater or the full balance if less than £50"

 

Clause 6 of the Agreement states that: if the account is overdrawn you will make monthly payments by DD in the amount and on the due dates applicable under this Agreement from time to time. You will also pay immediately any outstanding excess over the Overdraft Limite, any arrears of previous payments and the amount of any Card Transactions made in breach of the terms of the Agreement. If you wish you may pay into the Account sums in excess of the outstanding debit balance from time to time.

 

The Defendant was provided with a Keycard (which is also a Cheque Guarantee Card) and a Cheque Book to be used on the account within the approved Overdraft Limit. The Account also had the facility to set up Standing Orders and Direct Debits and clear Cheques paid into the Account. (My note: That's a new one on me!!!!)

The Claimant amended the Account number to xxx xxx xxx xxxx on or around the xxxx2005 by virtue of the Conditions of Use of the Agreement.

 

THEY then go on to mention the Breach of Agreement, that they sent a Default Notice in respect of the account pursuant to section 87(1) of the CCA 1974. A copy of the Claimant's computer records showing issue of the Default Notice is attached. (I never received this DN and when I challenged them they sent me a blank template!- Also, at first hearing when I challenged the computer record, the DJ told me not to!)

 

SO there you have it...

 

Any ideas as to how I should formally write my new Defence - bearing in mind the DJ has already dismissed my complaint about the 'computer' being able to prove I was sent (but not received) the Default Notice?

 

Anyone???

 

Help?

[hungrybear]

The metion the determination - which was 1st feb 1990 if you want to get picky - does that mean they have provided letters compliant with item 2 of the determination?

 

Does the application form / agreement say anything about being a regulated agreement?

 

- I'll have a read back through the thread to refresh my memory and come back in a mo

[hungrybear]

Having refreshed my memory a bit I'll refer you back to the details in post #5.

 

To help much more I really need to see what's in these application/form agreements to be honest

[kel123]

We need to compare our agreements, ill scan mine and post it.

 

Mid 2006 I asked to use my account as a current account and I was told that it could not be used for standing orders etc? Have a good read through your T&C, if it don't say it then it cannot be done!

 

I have the originals plus the ones they sent under a request and they are both the same.

[creditman09]

Have a look at thishttp://www.consumeractiongroup.co.uk/forum/legal-issues/231206-hearing-summary-judgement-soon.html

[creditman09]

Please ignore my last or we will be going around in circles.

[hungrybear]

We need to compare our agreements, ill scan mine and post it.

 

Mid 2006 I asked to use my account as a current account and I was told that it could not be used for standing orders etc? Have a good read through your T&C, if it don't say it then it cannot be done!

 

I have the originals plus the ones they sent under a request and they are both the same.

 

 

I suggest you get hold of a copy of the banking code from the fsa which is what current accounts are run under and compare your terms for conformity. If your account does not comply with the banking code then it cannot be a current a/c.

[fdpm]

Hi HB - Thank you - I've been out all afternoon over at mother-in-laws and got to work tomorrow so if you'll bear with me (no pun intended!) I'll photobucket the application form agreement on Saturday and post the link here.

 

Thank you for your help.

[fdpm]

Oh and also, I have just read through the application and the conditions of use and absolutely nowhere does it state that the account could be used like a 'current account' - no mention whatsoever of direct debits, standing orders or paying in salary ... nada.. so where they've concocted that statement from ??? only knows...

 

I really despise how they just change the facts to suit them! Grrrrr

[fdpm]

This is funny! This is taken from the Banking Code's Glossary:

 

Credit card

A card which allows you to make purchases and

withdraw cash up to an arranged credit limit. You can

pay off the credit we grant you in full or in part by a set

date. Interest is usually charged on the amount of any

balance you still owe. In the case of cash withdrawals,

interest is normally charged from the transaction date.

You may also have to pay an annual fee.

 

 

Sounds very like the Preference card I was using!

[hungrybear]

This is funny! This is taken from the Banking Code's Glossary:

 

Credit card

A card which allows you to make purchases and

withdraw cash up to an arranged credit limit. You can

pay off the credit we grant you in full or in part by a set

date. Interest is usually charged on the amount of any

balance you still owe. In the case of cash withdrawals,

interest is normally charged from the transaction date.

You may also have to pay an annual fee.

 

 

Sounds very like the Preference card I was using!

 

At the end of the day did you sign to be governed the the CCA or the banking code. I cannot see how that can be fudged

 

I think that the main basis of cc vs od is was there an expectation at the outset of the account that you could/would maintain a positive balance. Afterall an od is an arrangement on top of a current account which is opened with the ongoing expectation of an average positive balance and withdrawal based on day to day living.

 

eg is there a statement in the terms about interest on credit balances?

 

Also another differentiation test is that for a credit card you cannot exceed you limit on a single transaction. SO if you have a positive balance of £50 and your credit limit is £500, if you try and buy something for £525 it will not work, although technically the funding is available.

 

In terms of branding as well was it a preference card or a preference account?

 

looking forward to getting my teeth into the documents

[fdpm]

Hi

 

Here are the copies of the original agreement and the conditions of use...

 

I'm not sure what to do next except ask for as much help as I can get from peeps on here?

 

FDPM1.jpg picture by fdpm - Photobucket

 

FDPM1003.jpg picture by fdpm - Photobucket

 

FDPM1002.jpg picture by fdpm - Photobucket

 

FDPM1001.jpg picture by fdpm - Photobucket

 

Thank you

[kel123]

Hi fdpm

 

Yours is completely different to mine?

 

Question?

 

What's the direct debit for? if it is a current account!

[fdpm]

Hi Kel123

 

I know! I'm so convinced there must be a solid defence for this case - I am reading all I can at the moment about the CCA 1974 and anything I can find about bank accounts/overdrafts.

 

This needs to be defended by early January so have a couple of weeks yet but I want to try and ensure I cover all my bases.

 

I'm after any help I can get -

 

How does your agreement differ from mine? I think, but couldn't swear to it, that my preference card was given to me when I took out a mortgage (since paid off) so at the time I assumed it was like a credit card - silly me.

 

Anyway - I'm just annoyed that they keep changing their minds about what they think, let alone what's right or wrong...

[kel123]

I'll dig it out but it is on one of the threads on here.

 

I had a overnight loan and the card came with it. It is split down the middle with the loan on oneside and the card on the other.

 

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/143330-recieved-cca-thames-credit-2.html#post1547844

 

Had a good argybargy with Nicklea on this thread - so unlike me LOBL

Edited December 13, 2009 by kel123
Added link

[fdpm]

Hi kel123

 

Read through your post - mmmm? Seems that yours was a combined agreement unlike mine which was just for the preference account.

 

I still can't see how they can call it a bank account when we can't use it like a bank account... and I still maintain that all the statements I received referred to my CREDIT LIMIT not an OVERDRAFT LIMIT so how can they change the goalposts like they do...

 

I want to submit a really strong defence...

I'm hoping HungryBear and ReallyMadWoman come along to give me support plus maybe one or two of the big guns from the Caggers...

 

I just need some help in some of the legalese wording so that the DJ can't dismiss what my argument is so easily - I was really upset that I was told not to question the computer's statement!

[hungrybear]

Hi

 

Here are the copies of the original agreement and the conditions of use...

 

I'm not sure what to do next except ask for as much help as I can get from peeps on here?

 

FDPM1.jpg picture by fdpm - Photobucket

 

FDPM1003.jpg picture by fdpm - Photobucket

 

FDPM1002.jpg picture by fdpm - Photobucket

 

FDPM1001.jpg picture by fdpm - Photobucket

 

Thank you

 

 

why are there 2 documents almost the same. This is an agreement for an banking code/fsa account I can find no legal basis for the lending of money under this agreement - unless they are illegal money lenders. If it is a credit agreement that require not only yours but their signatures then it must say it is 'a credit agreement regulated by the cca 1974 sign only....'

 

Your best defense? This PLUS the ace in the hole is no DN.

 

Add it all together, they have given you money under a non-regulated agreement and as such cannot have had any realistic expectation of repayment and hence any money given to you must legally be treated as a gift.

 

what legal basis do they rely on to seek repayment in the POC. Clearly NOT under a regulated agreement executed on xxxxx, defaulted on xxxxx. So what are the exact words in the poc?

 

- all I can see at the moment is 'we gave you some money then changed our mind' - TOUGH.

[fdpm]

Okay, so now can one of you please help me compile this into a tangible defence. I would do it myself but I'm struggling due to the mother-in-law's current illness - I was going to spend yesterday on this but but ended up spending the whole day looking after mum as she had an angina attack and needed lots of care.

 

Anyone?

[hungrybear]

Okay, so now can one of you please help me compile this into a tangible defence. I would do it myself but I'm struggling due to the mother-in-law's current illness - I was going to spend yesterday on this but but ended up spending the whole day looking after mum as she had an angina attack and needed lots of care.

 

Anyone?

 

 

I'll have a proper look this evening and see what help I can give

[reallymadwoman]

Hi FDPM,

I've had a read through and caught up, but it's total chaos here at the moment - OH just home from working abroad, daughter due home from Uni today, tv engineers, BT, curtain fitters falling over each other etc, etc. Whoever thought it would be a good idea to move a week before Xmas????

I will do my best to look in and contribute properly over the weekend.

[fdpm]

Thank you HB and RMW!

 

Chaos here too, Mother-in-law is now quite ill - somehow she has picked up an infection? She doesn't go out so how that's happened?? Father fell over yesterday - thankfully I was there and he didn't smack his head! Now we're all covered in snow!!

 

Anyway - thank you for all your help - I've got until first week of the new year to put something together...

[reallymadwoman]

Daughter is also caught up in snow - was due at station about 4, but who knows what time it will be now. I just hope she doesn't get stuck somewhere overnight or the credit card might be taking a hit again!

[palomino]

What are you on about??? There's no snow here, not even a flake. Nice sunny day, albeit bitterly cold.