Big Overdraft - must respond to Court Claim - Please help!

[MAGDA]

Glad you're ok:)

 

Magda

[Martel]

seems they are also fond of litigation without documentation from that! Oh and a SAR has nothing to do with a cpr request.

 

Another attempt to misdirect and confuse you, if I may be so bold as to comment

 

Hungrybear, I've sent you a PM. Hope you have a chance to read....many thanks!

 

Best,

Martel

[MAGDA]

Hi Martel, hope you get some help on this soon - sure you will. Think you are going to need some expert guidance from now on to make sure you beat this lot.

 

Will keep an eye on your thread to see how it's going.

 

best wishes, Magda:)

 

PS : if I can help at all, let me know, though I'm not an expert on this, I am really rooting for you!

Edited April 10, 2010 by MAGDA
typo

[Martel]

Just to update - Have rec'd an amended defence from Cobbetts (the Court gave them about a week to deliver it).

 

They've attached bank statements (computerised ones, not like the usual format) with huge amounts of interest and charges continuing to be added (AND they've recorded the £1 CCA request fee and the £10 Subject Access Request fee as credited to the acc't!!).

 

The POC now state that they will rely on the T&Cs that govern the acc't (they are also included and are about 40 pages long and are dated 1/1/10 - needless to say, they don't match up with any T&Cs that have been sent to me in the last few months), in particular the following sections:

 

6.1 section 6.5.2 'If we have a valid reason for doing so, we may give you personal notice withdrawing your right to OD your acc't, or demanding repayment of your OD, or both. Our notice will normally take effect after a period of not less than 30 days, but it may take effects immediately if:

a, you have broken ay term of the contract between you and us; or

b, we have reasonable grounds to suspect fraudulent activity; or

c, as a result of the way you operate your acc't or, of your financial circumstances, we have reasonable grounds to believe that you ma difficulty in meeting your commitments.

If we demand repayment of your OD, you must immediately stop making withdrawals or payments of any kind on your acc't and must repay the full amt. of your OD ASA our notice takes effect

 

6.2 Section 6.6.3, You will also be responsible for paying any costs reasonably incurred by us in connection with your OD. These will includes (but not be limited to) costs of...© taking steps, including court action, to obtain payment

 

6.3 Section 8.1.1 You are responsible for payment of any debt that arises on your account.

 

They also say in the POC that they've attached a copy of a DN BUT it's for a LOAN that they've already admitted they can't provide the agreement for and is not part of these proceedings!!

 

What they don't mention in the POC is that they've also attached the Termination Notice for the OD, served under Sections 76(1) and 98(1) of the CCA 1974.

 

I've looked through my file and have only just realised that I've not rec'd a full reply to my CP31.14 or CPR18 requests - specifically, I've not ever been sent a DN on this acc't. I've also just noticed on a letter from Cobbetts from a few months ago in which they say 'We note from your Defence that you make reference to the CCA 1974....We confirm that a Current Account is not governed by the CCA and we therefore write to request that this part of your Defence is withdrawn.' (!!)

 

I have to file an amended defence in the next two weeks - so any advice will be gratefully rec'd!!

 

Thanks in advance!!

[Martel]

Hi Martel, hope you get some help on this soon - sure you will. Think you are going to need some expert guidance from now on to make sure you beat this lot.

 

Will keep an eye on your thread to see how it's going.

 

best wishes, Magda:)

 

PS : if I can help at all, let me know, though I'm not an expert on this, I am really rooting for you!

 

Magda, you're such a pal!! I've done as you suggested....let's see what happens!! MX

[Martel]

A reluctant and non pushy bump MX

[MAGDA]

Hi martel, have posted a link to your thread on the main Credit Agreement thread to ask if anyone can help and have a look at your thread.

 

Hope this is ok, Magda

[Martel]

Magda, as ever, thanks for your help - much appreciated! MX

[Martel]

Hi Magda,

 

Have done what you suggested - but radio silence from all concerned.

 

Any other ideas??

 

Thanks in advance!

MX

[MAGDA]

Hi Martel, yes, did notice today that there weren't any responses so far on the thread- but didn't know if anyone had assisted by pm. Not much help is it, so far, and I know you've got to get your amended defence in soon as well. If I were you, I would try clicking the red triangle and asking the site team to help - say it is getting more urgent as you have a court order to submit an amended defence and can they suggest anything. If you still don't get any response,/help will see what I can think of. That's the trouble with overdrafts, there doesn't seem to be a lot of help available or as much knowledge on that topic as with CCs and loans.

 

Try the red triange thing, see if that turns up anything, and I will keep an eye out to see what happens.

 

Hope you get some response - hopefully the site team might be able to come up with something positive.

 

Best wishes, Magda:)

[Martel]

Magda, thanks so much for your continued interest....have just done the red triangle thing!!! Let's see what happens! MXXX

[MAGDA]

Yes, fingers crossed. I've just pm'd CB (CitizenB) as well to ask if she can suggest anything/help in any way.

 

I'm sure you'll get the help you need soon.

 

Magda

[Martel]

Thanks so much Magda......and apologies to CitizenB if i ever referred to you by the wrong gender!!

 

So v grateful, MX

[citizenB]

S.O.S. received...Just having a read of your thread to see how I can help.. if not, will try and round up others who can.

[citizenB]

I have brought forward the two emails from the OFT that Magda obtained in respect of overdrafts.

 

I would say they cannot rely on a Default Notice that is for another account. TBH, I am totally out of my depth with overdraft claims so will try and get some help from other sources for you.

 

When is the last date for submitting your amended defence?

 

 

 

Hi Martel, received a response from the OFT re: clarification on correct procedure to default/terminate an overdraft, which you might find helpful:

 

Thank you for your email concerning the proper method of termination for an overdraft when a consumer is in breach of the agreement.

 

There is, unfortunately, no single answer to the question you pose as the precise requirements for terminating an overdraft will depend on a variety of factors, such as the terms of the overdraft and what exactly the creditor is looking to undertake, and so may vary from case to case. Equally, the Office of Fair Trading cannot provide absolute clarification as only a court can render a definitive interpretation of the law or rule on compliance for the Act in individual circumstances.

 

However in very general terms, the appropriate mechanism for termination rests on how a particular right of enforcement arises. If such a right only arises as a consequence of default then the default provisions set out in section 87 of the Act must be followed. If however the terms of the contract provide for a right of termination - as will typically be the case for overdrafts repayable on demand - then such a right can be exercised whether or not the borrower has defaulted. The creditor must inform the borrower at the outset of the procedure for terminating the agreement, in accordance with the Determination made under section 74(1)(b) of the Act.

 

Sections 76 and 98 apply only to fixed-term agreements so do not typically apply to overdraft agreements - sections 76(2) and 98(2) refer.

 

Section 87 would apply only if the creditor is seeking to terminate, by reason of breach by the borrower, in circumstances other than as provided for by the contract.

 

 

regards, Magda

 

Hi Martel, received further email from the OFT as follows:

 

 

"Although the information required by the Determination under Section 74 must be supplied at the time or before the overdraft agreement is concluded, it may be spread over more than one document and need not be provided all at the same time. The same may equally be true of the contract terms (including those providing for termination), provided that it is clear to the consumer that they form the terms of the contract that is being agreed to. So a creditor may use a single document to provide this information or a combination of various documents provided at various times, provided that all of the information is given no later than at the time the agreement is concluded."

 

 

So it seems as we thought that it depends on what the paperwork you receive at the outset of the overdraft states (the contract) this should include, as far as I can see, the method for terminating the overdraft as well as other required info in order to comply with the Determination, but can be spread over more than one document.

 

 

 

Regarding the actual termination, most of the banks seem to terminate under section 76(1) 98(1), but this clearly states at section 76(6) 98(6) that this doesn't apply where a breach has occurred and the OFT stated in the first email that these sections did not apply to an overdraft.

 

 

 

According to the OFT sec 87 only applies where the contract does not allow for the overdraft to be terminated on demand.

 

 

 

Hope you are getting on ok, Magda

 

 

 

 

PS: Wonder if one of the site team could clarify this, re: OFT's emails (posts #120 and 143?

 

[Martel]

Citizen B! Thanks so much for your post!! Amended Defence needs to be in by 26th April.

 

I am searching around my big file on this - I cannot find an official DN on this account. I have something titled 'Notice Served under Sections 76(1) and 98(1) of the CCA 1974 and states that my OD is repayable on demand and such demand will terminate the arrangement.' It gives a date for the termination (21 days from the date of the Notice). A copy of this doc is included in the Bank's Amended Defence, along with the DN for a completely different account.

 

In a letter dated 51 days later, the notice is headed 'This Notice is given in compliance with the CCA 1974 because you have failed to make required payments'. The sub heading is 'Terminated OD on acc't number....' It details the amount due and has two other subheadings 'Missed and partly made payments' and 'Default Sums and interest' and concludes with 'OFT Info sheet'. This is an original - a copy has never been sent to me by the Bank or the solicitors

 

I also rec'd a few 'Notice of Default Sums served under the CCA 1974' - these are also originals, copies have never been sent to me by the Bank or the solicitors.

 

Awhile ago, the solicitors did send me a copy (tho it looks like it could be an original - the letterhead is in colour) of the last letter agreeing to an extension of the OD. There is no mention of the CCA 1974 anywhere, but the letter does refer to separate T&Cs that were 'supplied to you when the account was opened or when they were last changed by us.' This doc is not included in the Amended Defence.

 

Enormous thanks for all your help!

 

MX

[citizenB]

The Notice of Default Sums is a legal requirement now and should match up with statements and Default Notice (which you dont appear to have received).

 

As already mentioned, the Default Notice is irrelevant if it is in connection with another account.

 

As they print off these notices from their archives, then they would possibly look like originals.. They dont actually keep copies of the originals.

 

Have sent out S.O.S pms for you... hopefully they will be received soon.

[Martel]

Thanks so much, CitizenB!

 

I am almost 100% certain that a DN on this acc't does not exist. It's not in my files and I've not been sent one in response to my SAR or from he solicitors.

 

All v confusing re the missing DN. And how the CCA 1974 may or may not affect the legality of the Termination Notice.

 

Huge thanks again!

 

MX

[vjohn82]

I think it would be useful to post a thread asking specifically if someone has the exact terms and conditions for demanding full repayment of an overdraft for the account you held at that specific time.

 

It's a long shot, but you will be able to see whether those terms included the clauses you speak of

 

It will give a defence more weight too.

[MAGDA]

Martel, just trying to remember, are those the only t&cs they have provided - the latest ones that they intend to rely on in court?

 

Magda

[Martel]

I think it would be useful to post a thread asking specifically if someone has the exact terms and conditions for demanding full repayment of an overdraft for the account you held at that specific time.

 

It's a long shot, but you will be able to see whether those terms included the clauses you speak of

 

It will give a defence more weight too.

 

AND

 

Martel, just trying to remember, are those the only t&cs they have provided - the latest ones that they intend to rely on in court?

 

Magda (Quote)

 

Thank you VJohn and Magda!

 

Am searching through my files re T&Cs. Other than the T&Cs the solicitors included in their Defence (which are dated 2010), I've been sent 3 other versions:

 

1. a five page, typed up version, handwritten at the top 'c. 1997')

2. attached to the above is a photocopy of a 10 page pamphlet of T&Cs, handwritten at the bottom 'September 1999')

3. a photocopy of a 67 page booklet titled 'Important Information' and includes T&Cs. It appears to be dated January 1998 (this date appears at the bottom of each page). This actually could be the T&Cs that were in operation when my account was opened. These were NOT enclosed with the Defence.

 

As I noted in a post above - Awhile ago, the solicitors did send me a copy (tho it looks like it could be an original - the letterhead is in colour) of the last letter agreeing to an extension of the OD. There is no mention of the CCA 1974 anywhere, but the letter does refer to separate T&Cs that were 'supplied to you when the account was opened or when they were last changed by us.' This OD agreement letter is not included in the Amended Defence.

 

So....is the Bank allowed to rely on the T&Cs every time they're amended even tho the account termination predates them?

 

Also, do you think the solicitors deliberately included the DN for the other account (which the Bank has already admitted in writing is unenforceable and not the subject of legal proceedings) in order to make me look like a deadbeat to the Judge? Or have they just not bothered to read the DN? I'm getting the impression from other threads that an OD does not require a DN.

 

Grrr....the more info i get to grips with, the more questions I have!!

 

Thanks for all the advice....much appreciated!! MXX

[vjohn82]

The DN they have included for another account is probably their little attempt at smearing your character. It has no weight in these proceedings... put it down to mischief.

 

I would have thought the only terms the claimant can rely upon are the ones you actually signed up to but then what I think and what the debt collection industry does are polar opposite ;-)

[MAGDA]

Hi Martel, going by the issues discussed in Coutts v Seb. they would have to provide you with details relevant to the overdraft each time it changes, so if you switched to a different product for example, then the t&cs they provide would have to be those (IMO) relevant at that time, not the current t&c, for example Jan 2010, because those do not prove that you were made aware of the t&cs at the time the o/d was taken out (or changed in some way) they must have made you aware of all details relating to the o/d including how to terminate the 'agreement' if you so wished. The other important thing is the notice that MUST have been provided within 3 months and 7 days of the account hitting difficulties, confirming the interest currently being charged and costs incurred. Those are the two points they really must prove were acted upon. Further, there is the issue of charges, how much do these actually amount to (with interest added as well)?

 

Re: the DN, I'm still not completely sure on that to be honest - if Andyorch does get a chance to come on and help (not sure if anyone can contact him as he doesn't have pm) he will tell you that DN's do not apply ot an overdraft, but s 76(1) 98 (1) does. Others will say a DN is still required. So all very confusing on that particular issue. As you say, the more info you get the more questions there are.

 

The fact that they have provided a DN seems to indicate that they believe a DN was necessary though, so I think I would write to them and point out that the DN is not acceptable as it relates to the loan account and you still require that they provide a copy of the DN relevant to the overdraft (within say 10 days or something like that).

 

Others might say to surprise them in court, but I'm not sure if that would be to your advantage or not, because you still won't know if they actually do have a DN for the overdraft, but mistakenly sent the wrong one, so it could backfire.

 

Will keep in touch, Hope you get some more comments/help soon.

 

Magda

[Martel]

The DN they have included for another account is probably their little attempt at smearing your character. It has no weight in these proceedings... put it down to mischief.

 

I would have thought the only terms the claimant can rely upon are the ones you actually signed up to but then what I think and what the debt collection industry does are polar opposite ;-)

 

 

Well, after reading your and Magda's posts, I went back to the POCs to read the extract from the T&Cs - but before that I noticed that they mention 'The Claimant issued a DN is respect of the Current Account and a copy of the DN is attached hereto' - no mention of the Termination Notice which is also attached (?!). Might making mischief might actually be ABOVE their abilities? Or is there a method in their madness....

 

Now, I'm starting to think about the docs they HAVEN'T included with their Defence....like the letter that last extended my OD, which the solicitors sent me a few months ago....

 

Wonder how I can confirm exactly which T&Cs they're allowed to rely on. My account was terminated 2 years ago. Surely the T&Cs were different then?

 

Thanks for all your input!

[Martel]

Hi Martel, going by the issues discussed in Coutts v Seb. they would have to provide you with details relevant to the overdraft each time it changes, so if you switched to a different product for example, then the t&cs they provide would have to be those (IMO) relevant at that time, not the current t&c, for example Jan 2010, because those do not prove that you were made aware of the t&cs at the time the o/d was taken out (or changed in some way) they must have made you aware of all details relating to the o/d including how to terminate the 'agreement' if you so wished. The other important thing is the notice that MUST have been provided within 3 months and 7 days of the account hitting difficulties, confirming the interest currently being charged and costs incurred. Those are the two points they really must prove were acted upon. Further, there is the issue of charges, how much do these actually amount to (with interest added as well)?

 

Re: the DN, I'm still not completely sure on that to be honest - if Andyorch does get a chance to come on and help (not sure if anyone can contact him as he doesn't have pm) he will tell you that DN's do not apply ot an overdraft, but s 76(1) 98 (1) does. Others will say a DN is still required. So all very confusing on that particular issue. As you say, the more info you get the more questions there are.

 

The fact that they have provided a DN seems to indicate that they believe a DN was necessary though, so I think I would write to them and point out that the DN is not acceptable as it relates to the loan account and you still require that they provide a copy of the DN relevant to the overdraft (within say 10 days or something like that).

 

Others might say to surprise them in court, but I'm not sure if that would be to your advantage or not, because you still won't know if they actually do have a DN for the overdraft, but mistakenly sent the wrong one, so it could backfire.

 

Will keep in touch, Hope you get some more comments/help soon.

 

Magda

 

Hi Magda,

 

Think our posts crossed in the ether!

 

Re the Termination Notice deadline - I can't figure out when I should be counting from. The OD expired (the Bank Manager tried to force me to convert it into an unmanageable loan) but the account limped on for awhile, racking up a huge amount of interest and charges.

 

I have TWO Notices relating to Termination:

 

1. Notice served under Section 76(1) and 98(1) of the CCA 1974, which gave me 21 days to pay back the OD (This doc is in the solicitor's Amended Defence). It's dated 2 months and 10 days after the date the OD expired.

 

2. This Notice is given in compliance with the CCA 1974 because you have failed to make the required payments. Terminated OD on acc't number ****. It lists the formal demand expiry (one day later than the deadline issued in the doc above) and interest. This Notice is dated 4 months after the expiry of the OD. This is my original doc - a copy has never been sent to me by the Bank or by the solicitors. Am assuming THIS is the TN?

 

Also, I can't find the original DN in my files and no one - not the Bank or the solicitors - have sent me one. I doubt that one exists.

 

I will look at the interest and charges, which are just shocking!

 

Arghhh!! I think I'm getting more confused!!!

 

MXX