Template to request CCA for Overdraft.

[discod]

So can somebody please tell me what template letter we use for a cca request for a bank overdraft thanks x

[patrickq1]

not sure if it do perhaps hb can help better and advise

patrickq1

 

Re: − Account/Reference Number:

Dear Sir/Madam

Please accept my apologies; I am afraid I’m confused by your actions.

I have received from you a statement of account dated xxxxxx, requesting payment of monies you have no legal right to. I have taken legal advice and will try to explain why this is so.

Notwithstanding any dispute as to the existence of a properly executed and legally enforceable credit agreement, it is clearly your position that such an agreement exists.

You are therefore legally bound by its terms and conditions and those of the Consumer Credit Act 1974 which regulated and formed part of that agreement.

You chose, despite not having first served a valid or effective Default Notice giving me the opportunity to remedy any alleged defect, to unlawfully terminate the agreement and demand payment in full of sums not yet due under the agreement. This is important because s87/88 of The Consumer Credit Act 1974 sets out what you must do if you wish to terminate a Regulated Agreement when the consumer is in default of that Agreement.

To be able to lawfully terminate the agreement and still benefit from its conditions PLEASE READ THE FOLLOWING:

The requirement for a valid Default Notice to lawfully terminate an Account whilst in default.

1. The Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

2. Under the Interpretation Act 1978 Section 7, it states:

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post.

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents:-

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

4. The Default notice supplied by the Claimant is dated Friday xxxx August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday xxxx August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

Section 87. Need for Default Notice

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

(a) to terminate the Agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

(e) to enforce any security.

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

Section 88. Contents and effect of Default Notice

(1) The Default Notice must be in the prescribed form…

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully since termination and whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

Due to the above, the termination of this account based on the Default Notice is rendered as an unlawful rescission of contract, and you have relinquished your rights under section 87(1) to claim the outstanding balance.

Due to these facts, I now require you to remove any adverse markers placed with Credit Reference Agencies, and to reduce the balance on this account to zero.

I also require your written acknowledgement that neither you, nor any agents you employ, will pursue this account.

I must advise you however that save for service of summons I intend to file unanswered all further correspondence from you or your agents in this matter and will report any further actions to the OFT

Yours faithfully,

 

(Digital signature)

[BornAgainBiker]

Hi all, re my overdraft:

 

Sent cca s77 (1) to Barclays's dca (RMA) with £1 po.

 

Recieved a letter back as follows,

 

BARCLAYS

Barclays Bank PLC Customer Services

Personal Banking, Leicester LE87 2BB Telephone: 0845 7 555 55

Date: 15/01/10

Dear Sir/Madam,

Thank you for your recent letter requesting information held under Section 77 of The Consumer Credit Act

Unfortunately we cannot proceed with your request due to the following reason(s):

Unable to locate any customer details with the information supplied. o

Please can you resubmit your request with above information, to enable us to provide your response.

Thank you for your cooperation.

Complex Loan Servicing Team

BArclays Bank PLC. Authorised and regulated by the Financial Services Authority. Registered in England. Registered No. 1026167. Registered Office: 1 Churchill Place, London E14 5HP. 1595 (06/05)

 

RMA have offerred to accept £10k on a £26k overdraft. I know it sounds a good deal, but i havnt got that money. could this indicate they are in a poor legal position ie. unable to enforce.

 

could i have cca'd on an incorrect section? Anyone got any ideas what i should do next.

cheers BAB

[disgruntled2007]

Hi all, re my overdraft:

 

Sent cca s77 (1) to Barclays's dca (RMA) with £1 po.

 

Recieved a letter back as follows,

 

BARCLAYS

 

Barclays Bank PLC Customer Services

Personal Banking, Leicester LE87 2BB Telephone: 0845 7 555 55

 

 

 

Date: 15/01/10

Dear Sir/Madam,

Thank you for your recent letter requesting information held under Section 77 of The Consumer Credit Act

Unfortunately we cannot proceed with your request due to the following reason(s):

 

 

Unable to locate any customer details with the information supplied. o

 

Please can you resubmit your request with above information, to enable us to provide your response.

Thank you for your cooperation.

Complex Loan Servicing Team

BArclays Bank PLC. Authorised and regulated by the Financial Services Authority. Registered in England. Registered No. 1026167. Registered Office: 1 Churchill Place, London E14 5HP. 1595 (06/05)

 

RMA have offerred to accept £10k on a £26k overdraft. I know it sounds a good deal, but i havnt got that money. could this indicate they are in a poor legal position ie. unable to enforce.

 

could i have cca'd on an incorrect section? Anyone got any ideas what i should do next.

cheers BAB

 

An overdraft should have been section 78 ("rolling credit"). It is possible they are wiggling out on this front. I personally would resend the CCA amended to show section 78, and carefully checked to ensure my address and all account details are absolutely correct. If they respond again with the same then its game over and you win!

 

Remember - this is my opinion only!

[BornAgainBiker]

Cheers D2007.

 

can you/anyone tell me if the following letter suffices ?

 

do i need to enclose the £1 again?

 

should i send to RMA or Barclays?

 

Dear Sirs

Re: Ac. No: xxxxxxx

This letter is a formal request pursuant to s.78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77(6) will apply.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR)

 

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee

 

We look forward to hearing from you.

Yours faithfully

[disgruntled2007]

Cheers D2007.

 

can you/anyone tell me if the following letter suffices ?

 

do i need to enclose the £1 again?

 

should i send to RMA or Barclays?

 

Dear Sirs

 

Re: Ac. No: xxxxxxx

This letter is a formal request pursuant to s.78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77(6) will apply.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR)

 

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee

 

We look forward to hearing from you.

 

Yours faithfully

 

 

that seems fine to me, but I see RMA have previously offered to settle for 10k. Does this mean they have bought the debt? I wonder if you should send your CCA to the DCA (RMA) as amended below:

 

Dear Sirs

 

Re: Ac. No: xxxxxxx

This letter is a formal request pursuant to s.78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77(6) will apply.

 

If it is your view that you are not the creditor, s.175 of the Consumer Credit Act 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR)

 

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee

 

We look forward to hearing from you.

 

Yours faithfully

 

 

 

Finally, as always, either don't sign the letter, or protect your signature by one of many means!

[24233513afw]

Hi peeps

 

I am subbing with great interest, once I get my thread up and running re: overdraft I shall TRY and put a link onit (NOT TO CLEVER)foryou allto have a read.

[BornAgainBiker]

hi disgruntled, thanks for that. i just noticed the letter has reference to s.78 in the first para and s.77 (6) in the 2nd.

 

am i right it should be s.78(6)

 

cheers

[disgruntled2007]

hi disgruntled, thanks for that. i just noticed the letter has reference to s.78 in the first para and s.77 (6) in the 2nd.

 

am i right it should be s.78(6)

 

cheers

 

You're right. It should read s78.

[caspergav]

Hi i dont know if im on the right place but i have a letter from solicitors regarding wescot credit services about an overdraft,the overdraft was 300 quid but they want 1950(yes 1950) lol because of charges,i forgot all about the overdraft and didnt receive any letters until now,,please sumone help do i cca them or what?

[The Debt Star]

The CCA 1974 template needs adapting for od's. I would add that you also request a copy of the facility letter that was sent within 30 days of the od being set up, a copy of the retail customer agreement for the current account, a copy of the od agreement and a CCA agreement and termination notice if such exists. I would therefore send them a CCA request and an SAR in the same letter, under different headings. I do this and it it fine.

 

As more experienced caggers than I have told you above, ods ARE covered by the CCa 1974 whereas current accounts per se are not. Therefore, it is up to the bank to prove that the Part V Exmeption afrom the CCA 1974 applies to YOUR od and further that the Determination is proved in the facility letter they are obliged to send you within 30 days of the od.

 

Also do note that some of the CAG precedents I have used still refer to the Banking Code and the Banking Code Board etc. This no longers exists. It is the Lending Code and the Lending Standards Board (since December 2009). The bank must comply with the LSB's rules and regulations as well as the Lending Code and you should request them to log their breaches of both the Code and Rules and Regs in their compliance log. Then dob them into the LSB as well as the OFT.

 

Report the DCA separately to Consumer Direct who will involve TS for you and also the FOS.

 

With all this going on the DCA cannot and will not pursue you.

[The Debt Star]

Hi i dont know if im on the right place but i have a letter from solicitors regarding wescot credit services about an overdraft,the overdraft was 300 quid but they want 1950(yes 1950) lol because of charges,i forgot all about the overdraft and didnt receive any letters until now,,please sumone help do i cca them or what?

 

Hello. The bank MUST write to you and offer help and invite you to enter into a repayment plan. This is in the Lending Code and the principles of their compliance in this regard are also stated in the Lending Standard's Board Rules and REgulations. If you bank has not, as you say, written to you about this then they are in breach of the rules. You must dispute your account and simulatneously send your bank a CCA request and a SAR. At the same time contact the LSB and the FOS. The LS won't listen to your individual complaints but they will contact the bank and someone in the bank (the code compliance officer) will then start to take notice.

 

Tell Wetcloths that your account is in dispute and that if they contact you while the FOS, LSB etc are investigating the bank's breaches of the Lending Code that you will report them to Consumer Direct, TS and the FOS as well. Ask that Wetcloths place your letter for the attention of their own compliance officer and lodge a formal complaint about them.

[caspergav]

Thanks debtstar but are there any letter templates around that i could look over,i have a cca request letter stating s77 and s78,could i maybe use that? thanks again

[patrickq1]

Hi i dont know if im on the right place but i have a letter from solicitors regarding wescot credit services about an overdraft,the overdraft was 300 quid but they want 1950(yes 1950) lol because of charges,i forgot all about the overdraft and didnt receive any letters until now,,please sumone help do i cca them or what?

 

ha ha this must be a world record,

dont even bother to reply or send the solicitor a joke that you know of

the debt is well and trully statute barred and not worth a reply in fact any more idiot letter from the brain dead fool who sent you this letter ought to be disbanded disrobed and flogged... and when you send the statute barred letter also send a harrassment warning to the sols and let them know any more stressfull letters like what they have sent will be sent to the SRA (solicitors regulation authority) this debt cannot even be reported as a default so just dont worry about it...

[patrickq1]

is this a wind up or what, its not april fools day is it...lol

[The Debt Star]

ha ha this must be a world record,

dont even bother to reply or send the solicitor a joke that you know of

the debt is well and trully statute barred and not worth a reply in fact any more idiot letter from the brain dead fool who sent you this letter ought to be disbanded disrobed and flogged... and when you send the statute barred letter also send a harrassment warning to the sols and let them know any more stressfull letters like what they have sent will be sent to the SRA (solicitors regulation authority) this debt cannot even be reported as a default so just dont worry about it...

 

How do you know its statute barred? he hasn't told you how old the od is?

[patrickq1]

How do you know its statute barred? he hasn't told you how old the od is?

1950(yes 1950)

unless i am reading it incorrectly the overdraft was 300 in 1950(yes 1950)

and forgotten about ?

[The Debt Star]

No, they want £1950 (it was originally £300).

[patrickq1]

they want 1950(yes 1950) lol because of charges ,i forgot all about the overdraft and didnt receive any letters until now

DOH,AINT I DUMB HEHE sorry DS did not read that correctly i blame the dementure syndrome lol

anyway like you say he needs to send a CCA asking for a complete breakdown to all charges etc

patrickq1

[The Debt Star]

Thanks debtstar but are there any letter templates around that i could look over,i have a cca request letter stating s77 and s78,could i maybe use that? thanks again

 

Yes but adapt it so that it includes reference to the all important docs and agreements I have already mentioned.

 

The bank will then write back and say the CCA doesn't apply and that they have exeption ubder the OFT determination. You then begin the ping pong letter writing educating them that they are wrong unless they can prove otherwise.

 

How old is the overdraft BTW?

[The Debt Star]

they want 1950(yes 1950) lol because of charges ,i forgot all about the overdraft and didnt receive any letters until now

DOH,AINT I DUMB HEHE sorry DS did not read that correctly i blame the dementure syndrome lol

anyway like you say he needs to send a CCA asking for a complete breakdown to all charges etc

patrickq1

 

lol, dude, glad I aint the only one that does that on here

 

yeah, a 1950 od would be funny wouldn't it?

[caspergav]

lol yeh the 1950 is the debt lol,,that message tickled me lol,its only from last year i am going to cca them,but im sending the cca request to the debt agency first as i spoke to lloyds yesterday and they said they dont have my account on there system anymore. thanks for all the replies i am getting here much appreciated

[The Debt Star]

Hmmm...if Lloyds failed to follow the lending Code protocols proeprly then they have to deal with your dispute.

[ftd]

any update on this thread?

[mani99]

Hi all,

 

Halifax have recently withdrawn my OD limit without even bothering to inform me (which they claim that they have, although I havent received anything). This has no left me with 3 weeks without any money.

 

I spoke to Halifax and they "kindly" offered to reinstate the OD up the current amount so that I dont get charged £5 a day. What's funny is that only last week I got a letter to them where they stated that my OD is due for renewal and would be kept at the current limit. But instead they've pulled the plug.

 

So, as I've ONLY been with them for 14 years, I've decided to open another account elsewhere which I've done and get my salary paid into that account. The question now is what can I do about the OD? I have a good mind to not pay it back but would the law be on my side?

 

I've had the OD for at least 7 years and dont remember once signing anything to say I accept or agree to limit. Can I CCA Halifax and play hardball?

 

Thanks.