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

[Martel]

CPR 31.14 will only get you documents explicitly mentioned in the POC, that is why it's important to send a CPR 18 as well for the rest. You could argue that the generic term 'account' in the POC entitles you to the agreement etc and they could argue that CPR 31.14 is not appropriate, possibly why they are so vague.

 

You might want to tag on ' In the POC you refer fo the generic term account. In order to provide proof of the existence of this alleged account then you must supply the documents refered to in this CPR 31.14 request. However, if you would argue that you are not required to supply any or all of these documents under CRP 31.14 because they are not explicitly named in the POC then I must refer you to the request under CPR 18 enclosed with this CPR 31.14 request'

 

Or something along those lines

 

Hiya HB,

 

Well, I rec'd a Special Delivery letter from the Bank. I'm assuming it's in response to my SAR, CRP31.14 or CPR18 - I'm not sure which because the Bank doesn't specify which letter they're referring to!! Anyway, it's from the Recovery Dept and asks me to let them know if the data enclosed is incomplete....you may shortly receive, under separate cover, information held by other Departments within the Bank.' It does specifically refer to the DPA at one point. The enclosed 'data' is simply a list of phone calls, letters, etc. Nothing very exciting.

 

I guess my question is - Since I need to file a defence by Xmas, should I wait in the hope that more dat comes through? Or respond and press them for an answer?

 

Thanks so much....MX

 

PS Guitar Hero, sorry to hear you're in the same boat. Overdrafts are tricky. As we're learning!!

[hungrybear]

Hiya HB,

 

Well, I rec'd a Special Delivery letter from the Bank. I'm assuming it's in response to my SAR, CRP31.14 or CPR18 - I'm not sure which because the Bank doesn't specify which letter they're referring to!! Anyway, it's from the Recovery Dept and asks me to let them know if the data enclosed is incomplete....you may shortly receive, under separate cover, information held by other Departments within the Bank.' It does specifically refer to the DPA at one point. The enclosed 'data' is simply a list of phone calls, letters, etc. Nothing very exciting.

 

I guess my question is - Since I need to file a defence by Xmas, should I wait in the hope that more dat comes through? Or respond and press them for an answer?

 

Thanks so much....MX

 

PS Guitar Hero, sorry to hear you're in the same boat. Overdrafts are tricky. As we're learning!!

 

Tough call, but firstly there is no requirement to chase a response to a cpr request. I would pick a cut off date as 'right that's it I'm filing my defence based on what they sent so far'. If the send anything after that date then tell the court it did not arrive in time - DO NOT let them pressure you into putting in a rushed up last minute defence.

[Martel]

HB,

 

As ever, thanks for your advice.

 

I've read through my 'data' from the Bank and notice that they only mention my CCA and SAR requests (interesting that they note on the latter the expiry date for that request).

 

So, it would seem that my CPRs requests are not being addressed here.

 

Incidentally, re the 14 day deadline to respond - how is it counted? As business days? Or including weekend days?

 

Again, many thanks! MX

[hungrybear]

get yourself a holding defence drawn up, work out when it has to be in to the court by and make sure the court get it the day before.

 

Beyond that chill until they respond to your cpr requests. I think the deadline is 14 calendar days but it doesnt matter they rarely respect it. Stand by for either no response or s response the day before the defence is due in, at which point refer to my post above.

 

-what did they say about the cca request?

[Martel]

Ok, the Bank needs to respond by next week to the CPRs.

 

I need to file the Defence by 29/12 (Happy Xmas). I'll need some advice as the law and overdrafts are a minefield.

 

The Bank responded to my CCA request as follows in a letter last month:

 

‘Under section 78 of the Act, on receipt of a written request, the Bank is obliged to provide:

A copy of the signed agreement (if any)

Any other docs referred to it the agreement

A note of the state of the acc’t (i.e., the balance, details of interest and charges outstanding and the applicable interest rate) signed by a representative of the Bank

 

It is important to point out that the Bank does not require customers to sign an agreement under the CCA in order for an overdraft to be applied to their acc’t. Therefore, a copy of the signed agreement is not available, and is not required to be provided to you under the terms of Section 78.

 

All borrowing facilities are agreed in accordance with the T&Cs of your acc’t, and OD facilities are finalised by way of confirmation letter.

 

I can confirm: agreed OD limit, current balance, nominal monthly rate, annual rate on agreed facility, etc on unarranged facility.

 

Accrued unarranged borrowing fees ad interest which has accrued on your acc’t but not yet applied: A GIANT SUM.’

 

Not sure if it's significant, but the Bank's letter is headed with my loan account number, but my current account/overdraft number is referred to in the body of the letter. Remember that the Bank has already admitted that they cannot produce the loan agreement and will not be pursuing me for it (but they will stain my CRA files with it and have said I should still pay it back!).

 

MX

[Martel]

Well, I don' know why I'm so lucky, but the Bank has gone into overdrive.

 

This week, I rec'd an undated and unsigned copy of T&Cs (handwritten 'circa 1997), an updated version for 1999 onward and a copy ot the T&Cs that were in place when transferred to their recover dept., which were in place until 2009. They have reassured me the they're waiting for their 'offsite storage' to deliver copies of m account opening forms.

 

There is no evidence to suggest that I ever actually received these docs at the time!!

 

The Bank also sent copies of all my statements for the last seven years (not all since the account opened, which I requested).

 

Incasso also sent me a letter to confirm that their client is proceeding with their Claim. As if I was expecting anything else!!!

 

MXXX

[hungrybear]

Well, I don' know why I'm so lucky, but the Bank has gone into overdrive.

 

This week, I rec'd an undated and unsigned copy of T&Cs (handwritten 'circa 1997), an updated version for 1999 onward and a copy ot the T&Cs that were in place when transferred to their recover dept., which were in place until 2009. They have reassured me the they're waiting for their 'offsite storage' to deliver copies of m account opening forms.

There is no evidence to suggest that I ever actually received these docs at the time!!

 

The Bank also sent copies of all my statements for the last seven years (not all since the account opened, which I requested).

 

Incasso also sent me a letter to confirm that their client is proceeding with their Claim. As if I was expecting anything else!!!

 

MXXX

 

that would be the banking code account covered then if it arrives, what about the overdraft account?

[Martel]

Hi HB!

 

As the Bank has already admitted several times that they no longer have any docs relating to the loan account, everything they have sent/are sending to me relates to the OD. The loan account is a dead issue.

 

The bank statements are for the current account (i.e., OD) and the T&Cs are for the OD as well. But there is no evidence to prove that I rec'd any of these a the time......

 

Am getting nervous as I have to file a defence by 29/12 and none of this seems to be adding up in my favour!!!

 

Huge thanks for 'being there'!

 

MX

[hungrybear]

Hi HB!

 

As the Bank has already admitted several times that they no longer have any docs relating to the loan account, everything they have sent/are sending to me relates to the OD. The loan account is a dead issue.

 

The bank statements are for the current account (i.e., OD) and the T&Cs are for the OD as well. But there is no evidence to prove that I rec'd any of these a the time......

 

Am getting nervous as I have to file a defence by 29/12 and none of this seems to be adding up in my favour!!!

 

Huge thanks for 'being there'!

 

MX

 

I was refering to the od above!

[Martel]

Sorry..was confused by the terminology. What is the banking code account?

 

I thought you might have been referring to two separate accounts (doh!).

 

So, am assuming the Bank needs to provide me with docs relating to opening the current account AND docs relating to the commencement of the OD on that account?

 

Thanks so much, Mx

[hungrybear]

Sorry..was confused by the terminology. What is the banking code account?current account

 

I thought you might have been referring to two separate accounts (doh!). An overdraft is a separate agreement

 

So, am assuming the Bank needs to provide me with docs relating to opening the current account AND docs relating to the commencement of the OD on that account? Yes

 

Thanks so much, Mx

 

Current account : banking code / fsa NO credit facilities

 

Overdraft: section 10 CCA, exempt from part v but must have an agreement letter compliant with the director of the OFT's determination 1st Feb 1990. Also must be defaulted under section 87/88

[Martel]

Thanks for the clarification! So far, no agreements on either account.

 

I'm a slow study!

 

Thanks agin, Mx

[Martel]

Actually, the Bank DID respond. Here's an excerpt from the Bank's reply to my CCA request and why they won't be sending me an agreement:

 

‘Under section 78 of the Act, on receipt of a written request, the Bank is obliged to provide:

A copy of the signed agreement (if any)

Any other docs referred to it the agreement

A note of the state of the acc’t (i.e., the balance, details of interest and charges outstanding and the applicable interest rate) signed by a representative of the Bank

 

It is important to point out that the Bank does not require customers to sign an agreement under the CCA in order for an overdraft to be applied to their acc’t. Therefore, a copy of the signed agreement is not available, and is not required to be provided to you under the terms of Section 78.

 

All borrowing facilities are agreed in accordance with the T&Cs of your acc’t, and OD facilities are finalised by way of confirmation letter.

 

I can confirm: agreed OD limit, current balance, nominal monthly rate, annual rate on agreed facility, etc on unarranged facility.

 

Accrued unarranged borrowing fees ad interest which has accrued on your acc’t but not yet applied: A GIANT SUM.’

[hungrybear]

Actually, the Bank DID respond. Here's an excerpt from the Bank's reply to my CCA request and why they won't be sending me an agreement:

 

‘Under section 78 of the Act, on receipt of a written request, the Bank is obliged to provide:

A copy of the signed agreement (if any)

Any other docs referred to it the agreement

A note of the state of the acc’t (i.e., the balance, details of interest and charges outstanding and the applicable interest rate) signed by a representative of the Bank

 

It is important to point out that the Bank does not require customers to sign an agreement under the CCA in order for an overdraft to be applied to their acc’t. Therefore, a copy of the signed agreement is not available, and is not required to be provided to you under the terms of Section 78.

 

All borrowing facilities are agreed in accordance with the T&Cs of your acc’t, and OD facilities are finalised by way of confirmation letter.

 

I can confirm: agreed OD limit, current balance, nominal monthly rate, annual rate on agreed facility, etc on unarranged facility.

 

Accrued unarranged borrowing fees ad interest which has accrued on your acc’t but not yet applied: A GIANT SUM.’

 

 

This is the agreement compliant with item 2 of the director of OFT's determination 1990. Did you get one at the time?

 

Remind me, do they claim to have ever sent a default notice?

[Martel]

Hi, yes, every time the Bank increased or renewed the OD, I would receive a confirmation letter from them (am looking at one now from 2007, it has T&Cs and is signed by the Bank). I can't find the last one.

 

This is what I have re your question re a DN (there is a more garbled version of this in posts 30 and 32):

 

1. 'Notice Served Under Section 76(1) and 98(1) of the CCA 1974

 

Your OD is repayable on demand being made by the Bank; and such demand will terminate the OD arrangement. The Bank intends to demand payment of the Total Amount Outstanding as set out below (if necessary by Court action) and accordingly terminate the OD arrangement on or after

 

(21 days from the date of the notice)

 

unless by that date you have made an alternative arrangement for repayment which is acceptable to the Bank

 

Principal ________________

Interest to the date shown above_______________

Total Amount outstanding (about £3,750 less than the amount on the Claim)

 

Principal includes the £30.00 fee........

Interest will continue to be applied to the account and will increase accordingly if payment is not made by the date above.

 

If you have difficulty paying.....you can apply to the Court which may make an order allowing you or any surety more time,

 

etc., etc.'

 

2. The Bank also included a Notice of Default Sums, re the £30.00 charge above, listing it as a 'Default Notice Fee' as the 'reason for charge'

 

About 7 weeks later I receive:

 

3. A letter from the Bank, enclosing a Notice that is headed 'This Notice is given in Compliance with the CCA 1974 because you have failed to make required payments.' Under my name and address is says 'Terminated Overdraft on acc't no....' It then lists Formal demand expiry payment and interest

 

Two weeks later I receive:

 

4. from the Bank 'This is an important letter.....' It includes the balance of my loan account (which has sort of gone away because the cannot produce the agreement) and the OD account. 'this letter constitutes formal demand for the repayment of all sums due on the accounts.......

[hungrybear]

Hi, yes, every time the Bank increased or renewed the OD, I would receive a confirmation letter from them (am looking at one now from 2007, it has T&Cs and is signed by the Bank). I can't find the last one.

 

This is what I have re your question re a DN (there is a more garbled version of this in posts 30 and 32):

 

1. 'Notice Served Under Section 76(1) and 98(1) of the CCA 1974

 

Your OD is repayable on demand being made by the Bank; and such demand will terminate the OD arrangement. The Bank intends to demand payment of the Total Amount Outstanding as set out below (if necessary by Court action) and accordingly terminate the OD arrangement on or after

 

(21 days from the date of the notice)

 

unless by that date you have made an alternative arrangement for repayment which is acceptable to the Bank

 

Principal ________________

Interest to the date shown above_______________

Total Amount outstanding (about £3,750 less than the amount on the Claim)

 

Principal includes the £30.00 fee........

Interest will continue to be applied to the account and will increase accordingly if payment is not made by the date above.

 

If you have difficulty paying.....you can apply to the Court which may make an order allowing you or any surety more time,

 

etc., etc.'

 

2. The Bank also included a Notice of Default Sums, re the £30.00 charge above, listing it as a 'Default Notice Fee' as the 'reason for charge'

 

About 7 weeks later I receive:

 

3. A letter from the Bank, enclosing a Notice that is headed 'This Notice is given in Compliance with the CCA 1974 because you have failed to make required payments.' Under my name and address is says 'Terminated Overdraft on acc't no....' It then lists Formal demand expiry payment and interest

 

Two weeks later I receive:

 

4. from the Bank 'This is an important letter.....' It includes the balance of my loan account (which has sort of gone away because the cannot produce the agreement) and the OD account. 'this letter constitutes formal demand for the repayment of all sums due on the accounts.......

 

 

nothing sent under section 87(1)?

[Martel]

According to what I have now in my files, nothing has been sent under section 87(1) regarding my OD.

 

The DN for my Bank Loan was served under Sections 87(1).

 

What does it all mean???

[hungrybear]

According to what I have now in my files, nothing has been sent under section 87(1) regarding my OD.

 

The DN for my Bank Loan was served under Sections 87(1).

 

What does it all mean???

 

 

They have terminated the od under 76/98 - admission that it is a cca agreement, which you could prove anyway BUT they never defaulted you under 87/88 from what you are telling me.

 

This would constitute unlawful rescission of a cca agreement meaning that they would be untitled to claim sod all off you. I say would because it all depends on IF they did default you.

[hungrybear]

do the POC refer to a default notice and/or the termination notice?

[Martel]

They have terminated the od under 76/98 - admission that it is a cca agreement, which you could prove anyway BUT they never defaulted you under 87/88 from what you are telling me.

 

This would constitute unlawful rescission of a cca agreement meaning that they would be untitled to claim sod all off you. I say would because it all depends on IF they did default you.

 

How do I determine if the Bank defaulted?

 

Mx

[Martel]

do the POC refer to a default notice and/or the termination notice?

 

 

The POCs simply state :

 

'The claimants claim is in respect of monies due pursuant to an account maintained with the claimant.

 

and the claimant claims: __________'

[nicklea]

Hi Martel,

 

Defending against an O/D claim can be very difficult. This is just my opinion, but I would suggest the best chance you have is to put in your defence that you have a right of equitable set off of the account charges and interest thereon against this claim and also a claim for restitution.

 

Things haven't been helped by the recent Supreme court case on bank charges but one (sort of) good piece of news that came out of that is that there is probably still a way of attacking bank charges through s5 of the UTCCR.

 

The people on moneysavingexpert.com are in the process of writing a new poc for bank charges which you should be able to just slot in to your defence. You will also need to claim back all the appropriate interest charged on the fees which can come to quite a lot. It can be quite time consuming to calculate properly but I might be able to help you with it.

 

There is also a further issue of restitution which is a very big issue to get into.

 

So your defence is basically that you have a right of equitable set off of £x (being all the charges and interest) against their claim of value £y

 

If you then want to get into restitution that is a very big issue indeed.

 

By the way, I haven't heard from the Welsh guys for quite some time either

 

 

ps I hadn't seen this announcement, have a reaad of it, it's relevant to your case:-

 

http://www.consumeractiongroup.co.uk/forum/announcement.php?f=167&a=154

Edited December 15, 2009 by nicklea

[hungrybear]

The POCs simply state :

 

'The claimants claim is in respect of monies due pursuant to an account maintained with the claimant.

 

and the claimant claims: __________'

 

 

Ok so your defense to this - which incidentally is not fully particularized - is that

 

The defendant avers that the contractual basis of any arrangement with the claimant is not stated and that the particulars of claim do not give any lawful cause of action. Consequently the defendant proposes that the court consider striking the claim in accordance with cpr 3.4.2(a)

 

the alleged account is a regulated debtor/creditor agreement as defined in sections 8 and 13 of the cca and is running account credit as defined under section 10 of the CCA. Coutts v Sebastyen See post #11

 

The defendant puts the claimant to strict proof of the contractual basis of this account in accordance with the determination of the Director of the OFT dated 1 feb 1990

 

The regulated agreement was not defaulted in accordance with section 87/88, as amended 1983, or at all.

 

The defendant avers that without a valid default notice under section 87(1) in the format prescribed in section 88 then the claimant was not entitled to terminate the agreement

 

The agreement was unlawfully rescinded at the time of termination under sections 76/98 and a such there can be no lawful cause of action.

 

- that's it in a nutshell, needs more 'fluff' though.

 

However, I can only advise, the choice is yours.

 

Nick: whilst I agree with offset etc in theory I think that as in stands and from what I have been told there is a pretty good stab at seeing this off.

[Martel]

Hi Martel,

 

Defending against an O/D claim can be very difficult. This is just my opinion, but I would suggest the best chance you have is to put in your defence that you have a right of equitable set off of the account charges and interest thereon against this claim and also a claim for restitution.

 

Things haven't been helped by the recent Supreme court case on bank charges but one (sort of) good piece of news that came out of that is that there is probably still a way of attacking bank charges through s5 of the UTCCR.

 

The people on moneysavingexpert.com are in the process of writing a new poc for bank charges which you should be able to just slot in to your defence. You will also need to claim back all the appropriate interest charged on the fees which can come to quite a lot. It can be quite time consuming to calculate properly but I might be able to help you with it.

 

There is also a further issue of restitution which is a very big issue to get into.

 

So your defence is basically that you have a right of equitable set off of £x (being all the charges and interest) against their claim of value £y

 

If you then want to get into restitution that is a very big issue indeed.

 

By the way, I haven't heard from the Welsh guys for quite some time either

 

 

ps I hadn't seen this announcement, have a reaad of it, it's relevant to your case:-

 

The Consumer Forums - Announcements in Forum : Debt Collection Industry

 

Nick!!

 

Great to her from you. Thanks for your advice and offer to advise me on calculating interest on charges. Is sure to take me forever.

 

Thanks also for the link - fascinating to read!

 

MXX

PS Got through to Wales, but not able to help.

[Martel]

Ok so your defense to this - which incidentally is not fully particularized - is that

 

The defendant avers that the contractual basis of any arrangement with the claimant is not stated and that the particulars of claim do not give any lawful cause of action. Consequently the defendant proposes that the court consider striking the claim in accordance with cpr 3.4.2(a)

 

the alleged account is a regulated debtor/creditor agreement as defined in sections 8 and 13 of the cca and is running account credit as defined under section 10 of the CCA. Coutts v Sebastyen See post #11

 

The defendant puts the claimant to strict proof of the contractual basis of this account in accordance with the determination of the Director of the OFT dated 1 feb 1990

 

The regulated agreement was not defaulted in accordance with section 87/88, as amended 1983, or at all.

 

The defendant avers that without a valid default notice under section 87(1) in the format prescribed in section 88 then the claimant was not entitled to terminate the agreement

 

The agreement was unlawfully rescinded at the time of termination under sections 76/98 and a such there can be no lawful cause of action.

 

- that's it in a nutshell, needs more 'fluff' though.

 

However, I can only advise, the choice is yours.

 

Nick: whilst I agree with offset etc in theory I think that as in stands and from what I have been told there is a pretty good stab at seeing this off.

 

HB.....am still trying to absorb your post...I'm blown away by your ability to extract the salient details and order them into an argument. I am TOTALLY up for challenging the Bank.

 

A few questions.....can the Bank issue correct versions of the DN and Termination notices retrospectively? Should Coutts V Sebastyen be fully quoted? How do I go about creating more fluff?

 

The deadline for the Bank to respond to my CPR requests is tomorrow (if the counting used is 14 calendar days).

 

I cannot thank you enough - your confidence is awe inspiring!

 

MXX